Date: 20001110
Docket: IMM-4918-99
Ottawa, Ontario, the 10th day of November, 2000
Present: The Honourable Mr. Justice Pinard
Between:
Maria Del Carmen HERNANDEZ SOSA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
ORDER
The application for judicial review of the decision, rendered on September 13, 1999 by the Refugee Division, that the applicant is not a Convention refugee, is dismissed.
| J. |
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
Date: 20001110
Docket: IMM-4918-99
Between:
Maria Del Carmen HERNANDEZ SOSA
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision rendered on September 13, 1999 by the Refugee Division of the Immigration and Refugee Board, ruling that the applicant is not a Convention refugee as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.
[2] The applicant is a citizen of Cuba. She alleges that she was persecuted in her country by reason of her political opinions and her membership in a particular social group (the family). She fears returning to Cuba because of her "bad record". She further claims that it would be dangerous for her to go back after applying for refugee status in Canada: she would be jailed.
[3] In so far as the impugned decision is based on the applicant's lack of credibility given the improbabilities and omissions noted, I am not persuaded that the Refugee Division, as a specialized panel, rendered a decision based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7). On the contrary, I am of the opinion after reviewing the evidence that the inferences drawn by the panel in this regard are completely reasonable (see Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.).
[4] However, I must also consider whether the panel erred in holding that the Cuban law of general application to persons who, like the applicant, have obtained an exit permit from Cuba and not returned within the prescribed period, is not persecutory. In Zolfagharkhani v. Minister of Employment and Immigration (June 15, 1993), A-520-91, the Federal Court of Appeal laid down the following guidelines for determining whether an ordinary law of general application is persecutory in nature: (1) the intent (or principal effect) of the law, rather than the motivation of the claimant, must be examined, (2) the neutrality of the law must be assessed, (3) the onus is on the claimant to show that the law is persecutory, and (4) it must be shown that the law in question, and not the regime, is persecutory.
[5] In the case at bar, the law in question provides a maximum penalty of eight years' imprisonment. As well, the documentary evidence refers to additional reprisals such as dismissal, demotion, expulsion from educational institutions, withdrawal of ration cards and confiscation of dwellings, furniture and cars. As to whether these imprisonment and reprisal penalties generally apply, the documentary evidence indicates to the contrary, as the panel notes in referring to exhibit P-11, that the authorities' attitude "[Translation] is inconsistent". Furthermore, exhibit P-8 indicates that the law in question is applied with discernment:
| . . . Some of those who have returned to Cuba after overstaying exit permits or being involved in dissenting political activities while abroad have been jailed (ibid.). However, a general statement covering all cases cannot be accurate, as the possible consequences of dissent or disobedience of the law depend largely on the particular circumstances of a person and the discretion of the authorities (ibid.). |
[6] In this instance, in a context in which the panel reasonably held that the applicant was not credible, she has failed to establish a profile as a genuine dissident likely to attract the virulence of the Cuban authorities. I am unable to conclude, therefore, that the applicant has rebutted the onus of establishing a serious possibility that the Cuban law in question will be applied to her in a persecutory way. As to the reprisals, their nature makes them generally inapplicable to the applicant's situation.
[7] For all of these reasons, the application for judicial review is dismissed.
| J. |
OTTAWA, ONTARIO
November 10, 2000
Certified true translation
Suzanne M. Gauthier, LL.L., Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| DOCKET NO: IMM-4918-99 |
| STYLE: MARIA DEL CARMEN HERNANDEZ SOSA |
v.
M.C.I.
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: OCTOBER 11, 2000 |
REASONS FOR ORDER OF PINARD J.
DATED: NOVEMBER 10, 2000
APPEARANCES:
MARIE-CLAUDE PAQUETTE FOR THE APPLICANT
PASCALE-CATHERINE GUAY FOR THE RESPONDENT
SOLICITORS OF RECORD:
MARIE-CLAUDE PAQUETTE FOR THE APPLICANT
Montréal, Quebec
Mr. Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada