MAYKEL GONZALEZ SALCEDO Applicant v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION, 2014 FC 822

Date: 20140825 Docket: IMM-5975-13 Citation: 2014 FC 822 Ottawa, Ontario, August 25, 2014 PRESENT: The Honourable Mr. Justice Phelan BETWEEN: MAYKEL GONZALEZ SALCEDO Applicant and THE MINISTER OF CITIZENSHIP AND IMMIGRATION Respondent JUDGMENT AND REASONS I. Introduction [ 1 ] The Applicant, an employee of the Cuban Embassy in Ottawa, defected and made a refugee claim. The Refugee Protection Division [RPD] decided that he was not a refugee or a person in need of protection. This is the judicial review of that RPD decision in which the substantive issue is the question of whether

Article 135 of the Cuban Penal Code is persecutory. II. Background [ 2 ]

Article 135 of the Cuban Penal Code reads: 1. An official or employee charged with a mission in a foreign country who quits, or, having completed the mission, or being asked at any time to return, expressly or implicitly refuses to return is liable to a penalty of three to eight years in prison; 2. The same penalty applied to officials or employees who, having completed a mission abroad and against the express order of the Government, move to another country. [ 3 ] The Applicant arrived in Canada in November 2009 to begin working at the Cuban Embassy [Embassy] in Ottawa.

In December 2010 he left his job at the Embassy, and travelled to Winnipeg where he made his refugee claim. [ 4 ] The Applicant is a student of languages with a post-graduate degree. For a time he taught French at the Higher Institute of Foreign Relations [Institute] to future Cuban diplomats. [ 5 ] The Applicant claims that the government’s persecutory actions began when he refused to join the Union of Young Communists [UYC]. This brought him under scrutiny, his name was posted as a non-member and he was excluded from selected foreign travel.

He was also non-exempt from a military mobilization in 2007 when the Director spoke in favour of exemption for all other teachers at the Institute. [ 6 ] In 2009, the Applicant was asked to work at the Embassy in Ottawa which he did until December 2010.

At the Embassy, the Applicant says, he was subjected to further persecution – pay cut, restrictions on movements in Canada including a curfew, unpleasant living quarters, and mistreatment and humiliation from the Ambassador who questioned his sexuality. [ 7 ] In December 2010, the Applicant returned to Cuba to visit his family but he returned to Canada for fear of losing his employment.

He defected shortly after arriving back in Canada. [ 8 ] The RPD, in assessing the refugee claim, found the Applicant to be credible but concluded that his treatment prior to making his claim was not persecutory. [ 9 ] The RPD found that his refusal to join the UYC may have resulted in some shame and humiliation; however, he was not reprimanded, did not lose his job, was not subject to increased monitoring nor to interrogation or arrest. [ 10 ] The RPD noted that despite his claim of persecution at the Institute, the Applicant was selected to work in Ottawa and that he was not perceived as a political dissident.

The documentary evidence confirms that dissidents are routinely denied passports to travel outside Cuba. [ 11 ] The RPD had some difficulty with the Applicant’s claim that his working conditions at the Embassy were persecutory. While noting less than positive working conditions, those conditions were not exclusive to the Applicant and there was no medical evidence of any psychological problems. [ 12 ] The RPD then turned to the matter of whether the Applicant faces a serious possibility of persecution or a substantial risk to his life if he returned to Cuba as a failed asylum seeker.

[13] In this regard, the RPD found that evidence that the Applicant’s brother was dropped from a military academy, where hefailed an exam, was speculative as to its link to the Applicant. [14] However, the RPD did find that the Applicant was exposed, by virtue of his dereliction of duty in defecting, to a penalty of 3-8years imprisonment should he return to Cuba or an eight-year bar from returning to Cuba. [15] The RPD found the penal sanction for dereliction of duty is a law of general application that applies to all diplomats equally. Itfound the penalty to be harsh but not persecutory.

The objective of the penalty, to keep diplomats at their posts, was reasonable given theembarrassment that desertions cause the Cuban government and the harm to Cuba’s international relations. [16] The RPD found that the likelihood that the Applicant could not return to his job was not persecutory.

The RPD recognizedthat the Applicant may have some difficulties upon return to Cuba but that there was insufficient credible and trustworthy evidence toestablish that the Applicant would be denied any employment or social services. [17] The RPD also noted the 2012 change in Cuban policy which made the issuance of passports to perceived dissidents morelikely.

There appears to be a good relationship toward dissidents and even if the Applicant is considered a dissident now, treatment iscurrently much less harsh and does not amount to persecution. [18] On the basis of all these factors, the RPD concluded that the Applicant had not established a serious risk of persecution.Enhanced scrutiny upon return does not amount to persecution and the possibility of a 3-8 year jail term for dereliction of duty, althoughsevere, does not shock the conscience of Canadians. III. Analysis [19] The issues in this judicial review are: • Was the RPD’s conclusion that

Article 135 of the Cuban Penal Code is not persecutory legally sustainable? • Is the decision otherwise reasonable? A. Standard of Review [20] A determination that

Article 135 is or is not persecutory is reviewable on a standard of correctness.

As I held in Rosales vCanada (Minister of Citizenship and Immigration), 2012 FC 323, 215 ACWS (3d) 467 [Rosales], at paragraph 16: While the parties appear to consider "reasonableness" as the standard in respect of the persecuting nature of Cuban law, I disagree.Whether the Cuban exit laws which contemplate prosecution and possible imprisonment amount to "persecution" under s. 96 of theImmigration and Refugee Protection Act (IRPA) or "cruel and unusual punishment" under s. 97 of IRPA is a matter of a law of generalapplication, and involves considerations of domestic and international law.

As such, the Board's conclusion should be assessed on acorrectness standard. [21] The decision that the fear of persecution is not well-founded is reviewable on a standard of reasonableness (Tindungan vCanada (Minister of Citizenship and Immigration), 2013 FC 115, 426 FTR 200). B.

Article 135 – Persecution [22] The question of whether laws concerning unauthorized exits or overstays amount to persecution was determined in thenegative by the Federal Court of Appeal in Valentin v Canada (Minister of Employment and Immigration) (F.C.A.), (FCA), [1991] 3 FC 390, 28 ACWS (3d) [Valentin], at paragraphs 8-9 (which has not been reversed): 8 I will say, first, that while in humanitarian terms I am very much inclined to sympathize with the idea of granting refugee status toeveryone who faces criminal sanctions such as those imposed by

section 109 of the Czech Criminal Code, in practical and legal termsthe idea seems to me to be illogical and without any rational basis. Neither the international Convention nor our Act, which is based onit, as I understand it, had in mind the protection of people who, having been subjected to no persecution to date, themselves created acause to fear persecution by freely, of their own accord and with no reason, making themselves liable to punishment for violating acriminal law of general application.

I would add, with due respect for the very widely held contrary opinion, that the idea does not appearto me even to be supported by the fact that the transgression was motivated by some dissatisfaction of a political nature (on this point,see, inter alia, Goodwin-Gill, op. cit., pages 32 et seq.; James C. Hathaway, The Law of Refugee Status, pages 40 et seq.), because itseems to me, first, that an isolated sentence can only in very exceptional cases satisfy the element of repetition and relentlessness foundat the heart of persecution (cf. Rajudeen v.

Minister of Employment and Immigration (1984), 55 N.R. 129 (F.C.A.)), but particularlybecause the direct relationship that is required between the sentence incurred and imposed and the offender's political opinion does notexist. 9 In my opinion, a provision such as

section 109 of the Czech Criminal Code can have a determining effect on the granting ofrefugee status only in an appropriate context.

This will occur in cases where the provision, either in itself or in the manner in which it isapplied, is likely to add to the series of discriminatory measures to which a claimant has been subjected for a reason provided in theConvention, so that persecution may be found in the general way in which he is treated by his country.1 I noted earlier that counsel forthe appellants had in effect attempted to connect his clients' fear of criminal sanction to the difficulties they had experienced in the past.The problem is that such a connection is not possible here, since there is no reason to believe that the claimants' membership in theCatholic religion, a major cause of the difficulties they had experienced, or even their disagreement with the government, if we assumethat this had some unfortunate consequence for them in the past, could have any influence at all on the manner in which

section 109

would be applied to them. [23] Valentin has been followed in such decisions as Rosales and Del Carmen Marrero Nodarse v Canada (Minister of Citizenshipand Immigration), 2011 FC 289, 199 ACWS (3d) 562.

In Rosales, I wrote at paragraphs 22-26 on the matter of persecution for breach ofexit permits. 22 As to the issue of whether prosecution for a breach of an exit permit is persecutory, the Applicants have at least two difficulties –firstly, the Applicants created the breach; secondly, Cuban exit laws have not been found to be persecutory. 23 In Valentin v Canada (Minister of Employment and Immigration) (F.C.A.), (FCA), [1991] 3 FC 390, theFederal Court of Appeal held that an applicant cannot self-induce a positive claim for refugee status.

This principle was followed inPerez v Canada (Minister of Citizenship and Immigration), 2010 FC 833, with respect to overstaying a Cuban exit visa in relation to bothIRPA ss. 96 and 97. 24 In the present case, the Board noted the Applicants’ failure to seek an extension of their exit visas even though it is normal to beable to extend such a visa for 11 months and possibly even longer. 25 In Galvez v Canada (Minister of Citizenship and Immigration), 2004 FC 1690, this Court upheld the Board’s conclusion thatCuban exit laws themselves were not persecutory.

In the present case, there is no evidence that the law would be applied to theApplicants in a persecutory manner. 26 Therefore, the Board was correct in its conclusions that the exit laws were not persecutory and that the Applicants cannot self-induce their refugee claim. The Board’s conclusion that there was no evidence that the Applicants would be subject to persecutoryapplication of the laws is reasonable. [24] While there are no cases which consider

Article 135 in the context of Cuban diplomats, the decisions regarding exit permitsare analogous. There may be greater justification for sanctions against diplomats who desert their posts because of the consequences toCuban government operations. [25] However, a finding that the law is not persecutory does not end the inquiry. As Justice Noël held in Castaneda v Canada(Minister of Employment and Immigration), [1993] FCJ No 1090, 69 FTR 133, the RPD is required to consider evidence of extra-judicialpersecution upon return to the home country. This determination is assessed on the reasonableness standard of review. [26] In conclusion, the potential punishment under

Article 135 is not persecutory. It cannot be characterized as solely to punishpolitical dissent as it applies to diplomats who fail to return to Cuba for whatever reason. It would be naïve to think that political opinionsdo not play a role but there are other motives possible for refusal to return (i.e. economic advantage, lifestyles) which are also capturedby the law. There is no evidence in this case of disproportionate application of that law to political dissidents. C.

Reasonableness of Decision [27] I can find no basis for concluding that the RPD’s decision is otherwise unreasonable, either as to past persecution or thelikelihood of extra-judicial persecution if returned to Cuba. [28] The conclusion that the Applicant was not considered a political dissident before filing his refugee claim is reasonable,particularly considering that he was sent on a diplomatic posting to Canada. [29] There is no basis for the assertion that the RPD failed to consider cumulative grounds of persecution.

A fair reading of thedecision shows that the RPD continually made “summary” statements on the matter of alleged persecution at various times. [30] The only remaining issue, given that

Article 135 is not persecutory, is whether the Applicant has a sur place claim based on apossible eight-year ban on return to Cuba or denial of employment and other services if he is returned to Cuba. [31] There is no evidence of extra-judicial punishment to the Applicant or his family as a result of his refugee claim. The incidentinvolving the brother, even if the Applicant believes it was politically motivated, could reasonably be rejected as extra-judicialpunishment in the absence of any corroborative evidence. [32] It was reasonable for the RPD to reject the Applicant’s fear of extra-judicial punishment.

The RPD considered all the risksraised, balanced them against the objective evidence and reached a conclusion which was reasonable, both on its individual aspects andcumulatively. IV. Conclusion [33] Therefore, this judicial review will be dismissed. [34] While the Applicant has proposed questions for certification, the key legal issue as to the nature of

Article 135 has beendecided. There is nothing in the facts of this case which would justify certification of a question. JUDGMENT THIS COURT’S JUDGMENT is that the application for judicial review is dismissed.

"Michael L. Phelan" Judge FEDERAL COURT SOLICITORS OF RECORD DOCKET: IMM-5975-13 STYLE OF CAUSE: MAYKEL GONZALEZ SALCEDO v THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEARING: Winnipeg, Manitoba DATE OF HEARING: May 14, 2014 JUDGMENT AND REASONS: PHELAN J. DATED: august 25, 2014 APPEARANCES : David Matas For The Applicant Nalini Reddy For The Respondent SOLICITORS OF RECORD : David Matas Barrister and Solicitor Winnipeg, Manitoba For The Applicant William F. Pentney Deputy Attorney General of Canada Winnipeg, Manitoba For The Respondent