Citation: 2020 RLLR 49
Tribunal: Refugee Protection Division
Date of Decision: March 6, 2020
Panel: Miryam Molgat
Counsel for the Claimant(s): Kevin Rosales
Country: Cuba
RPD Number: VB9-01922
ATIP Number: A-2021-00655
ATIP Pages: 000128-000131
DECISION
[1] MEMBER: The claimant claims to be a citizen of Cuba and is claiming refugee protection pursuant to Sections 96 and 97(1) of the Immigration and Refugee Protection Act.
Determination
[2] The Panel finds that the claimant is a Convention refugee as the claimant does have a well-founded fear of persecution on a Convention ground in Cuba. Its reasons are as follows.
Allegations
[3] The claimant’s complete allegations are set out in the Basis of Claim form and need not be repeated here in detail. To summarize briefly, the claimant is a man born in Cuba [XXX], he is from a place called [XXX]. His claim is based on his political opinion as a perceived “counter-revolutionary”, he has suffered at the hands of the Cuban government who threatened to throw him in jail. On one occasion an agent told him that if he wanted he could easily end up dead in a jail cell. The claimant believes the agent was implying he could easily have him killed, the claimant yearns for freedom of expression. He became known in high school for defending his classmates rights, he would refuse to join the [XXX] in the Spanish acronym. As a result, he was unable to study medicine simply because of his political opinion not his grades. He and his family complained without any result. After he finished his two-year compulsory military service he was denied training in fields of his interest, there was no reason provided for the refusal, he believes it was because of his perceived political opinion. In 2014, while working as a [XXX] he was questioned by the police for refusing to participate in regime celebrations linked to the Committee of Revolutionary Defense. Those who refuse to donate to the celebration were threatened with losing their jobs. While questioned by the police the claimant was punched in the face, he complained about it after he was released but there was no follow up by the authorities. After this, it became impossible for the climant-, the claimant to find a job, this was because he was marked as a counter revolutionary. He started working as a [XXX], he continued to have problems with the police. The claimant tried to leave Cuba illegally on [XXX] 2015 but was forced to paddle back to shore. His parents then received a visit by officials looking for boat parts, his parents complained to the authorities in vain. The claimant went to the town of Trinidad-,
[4] INTERPRETER: (Inaudible) so just a moment.
[5] MEMBER: No-, ok.
[6] INTERPRETER: Nine
[7] MEMBER: Ok just a minute because I haven’t read Paragraph 8 yet ok. So, I’m just-, I’ll try and speak more slowly so I’ll, I’ll say Paragraph 8 and then we can continue together.
[8] INTERPRETER: Ok, I’ve just finished 8.
[9] MEMBER: Ok.
[10] MEMBER: So, the claimant went to the town of Trinidad Cuba where he worked as a [XXX], a few months later he started getting visits from people who knew about every single aspect of his file in [XXX]. They would ask him to work for them, he did not want to, he realized he could not be safe in Cuba. Ok, so, the claimant tried to leave Cuba illegally on [XXX] 2016, he and his friends bought a boat, they had to give up and return to land as the cheap engine seized. He was detained upon returning to Cuba but not jailed, police boss [XXX] was the presumed author of the police operation. In [XXX] 2017 the claimant started studying to be a [XXX], he also started studying [XXX] at university. Everything was fine for a year until he was contacted by [XXX] in [XXX] 2018, he wanted the claimant’s help in finding a robber. [XXX] said the claimant have a large police file, he warned him he would be jailed for five years if he failed to co-, cooperate. The claimant relented offering to help, he was so pressured he stopped going to university, he returned to [XXX] to his family. The claimant went to Havana where he took advantage of a Panamanian law allowing Cubans to travel there without a visa, he bought a ticket with his tips, he arrived in [XXX]. He immediately traveled to [XXX], once there, a man said he could help him get to Canada, at the airport the man handed him a passport. The claimant has relatives in Canada, the claimant’s cousin has also arrived in Canada, another cousin had to leave Cuba on account of his pro-LGBT activism. The claimant left Cuba on [XXX] 2019, in Cuba he still has his parents and siblings, his claim was referred in [XXX] 2019. The claimant also alleges fear of risk to his life, risk of torture or risk of cruel and unusual treatment or punishment of the hands of the same agent of harm. The claimant alleges that neither state protection or safe and reasonable internal flight alternatives are available in his country of nationality.
ANALYSIS
[11] The main issue is credibility.
Identity
[12] The claimant’s national identity has been established by the testimony and supporting documentation filed and entered in these proceedings. The current passport is on file along with other documents, the Panel is satisfied of the claimant’s identity.
Nexus
[13] For the claimant to be a Convention refugee the fear of persecution must be by reason of one of the five grounds enumerated in the Convention refugee definition. In other words, the claimant must have a well founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion. The Panel finds that the harm feared by the claimant is by reason of one of the five grounds enumerated in the Convention refugee definition, namely his political opinion opposed to the government of Cuba.
Credibility
[14] When credibility is assessed there are two principles that are followed. Firstly, when a claimant swears to the truthfulness of certain facts there is a presumption that what he is saying is true unless there is reason to doubt it. Secondly, when assessing credibility, the panel is entitled to rely on rationality and common sense. The determination as to whether a claimant’s evidence is credible is made on a balance of probabilities. The claimant was credible, his allegations do not run counter to generally known facts, his testimony was direct, it was consistent with his BOC allegations. His Exhibit 1 handwritten statement is consistent with his BOC allegations, he has supported his allegations with corroborating documents in counsel disclosure.
Subjective Fear
[15] The claimant failed to make an asylum claim in Panama or Costa Rica, this is not determinative given that he is credible. He provided a reasonable explanation for his failure to make a claim in panama or Costa Rica, namely that he has family in Canada, he has no family in Panama or Costa Rica. His relationship with his uncle in Canada is established via the documents on file.
Similarly Situated persons and Objective Basis
[16] The government of Cuba persecutes those they believe are in political opposition and represses political dissent. There are serious consequences for those who criticize the government or express views that are in opposition to the government. The US Department of State report, which is NDP Item 2.1 states the government of Cuba has little tolerance for political criticism of government officials or programs and limits public debate on issues that are considered to be politically sensitive. The US Department of State also discusses severe restrictions on freedom of association, assembly and freedom of speech. In the NDP Item 2.6 from Freedom House it says that, political dissent is a punishable offence and dissidents are systematically harassed, detained, physically assaulted and frequently imprisoned for minor infractions. NDP Item 2.4 states this, the government continues to use other repressive tactics including beatings, public shaming, travel restrictions and termination of employment against critics. The Panel finds that there is an objective basis for the targeting of the claimant by the authorities of Cuba.
State Protection
[17] Claimant’s must show on a balance of probabilities that adequate state protection is not available. The issue before the Panel was whether it was objectively unreasonable for the claimant to have sought state protection. The objective country conditions evidence on Cuba demonstrate that there is no available state protection for the claimant in Cuba, the claimant fears the Cuban State itself. His experiences establish his past persecution by the State.
Internal Flight Alternative
[18] There is no internal flight alternative if the claimant faces a serious possibility of persecution throughout Cuba, the Cuban authorities control their whole territory.
CONCLUSION
[19] Having considered all of the evidence, the Panel determines that there is a serious possibility that the claimant would be persecuted in Cuba for one of the five grounds enumerated in the refugee Convention, namely, political opinion. Having come to this conclusion, the Panel has not conducted further assessment under Section 97(1) of the Act. The Panel concludes that the claimant is a Convention refugee and the Panel therefore accepts the claim.
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