Ottawa, Ontario, April 23, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
RAFAEL NARANJO-RIVERA, NAOMI RUTH O’BRIEN,
AURORA NARANJO-RIVERA and
DANIEL NARANJO-RIVERA
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review from a decision of the Refugee Protection Division of the Immigration and Refugee Board (Board) rendered at Winnipeg on May 4, 2006 which dismissed the claims to refugee protection brought by the Applicants, Rafael Naranjo-Rivera, Naomi Ruth O’Brien and Aurora Naranjo-Rivera.
Background
[2] The principal Applicant, Rafael Naranjo-Rivera, is a Cuban national who has resided in the United States since 1980. He was one of about 125,000 Cubans who either fled Cuba or were exiled to the United States as part of the Mariana boatlift. The second Applicant, Naomi Ruth O’Brien, is the spouse of Mr. Naranjo-Rivera. She is an American citizen. The two minor Applicants, Aurora Naranjo-Rivera and Daniel Naranjo-Rivera, are the children of Mr. Naranjo-Rivera and Ms. O’Brien. Aurora was born in the United States and is an American citizen and Daniel was born in Canada and is a Canadian citizen. Although Daniel is named as an Applicant in this proceeding, the parties agree that, as a Canadian citizen, there is no basis to his claim to refugee protection. In the result, when I refer to the Applicants in this decision, I do not include Daniel.
[3] The Applicants came to Canada from the United States in June, 2004. Mr. Naranjo-Rivera sought protection both as a convention refugee and as a person in need of protection against both Cuba and the United States. Ms. O’Brien and her daughter made similar protection claims but only against the United States.
[4] Mr. Naranjo-Rivera claimed that he had been the victim of persecution in Cuba for several years before leaving for the United States. Before the Cuban Revolution, his parents were apparently persons of some means. His father was also a member of the Cuban Congress and allegedly a co-founder of the Christian Democratic Party (CDP). All of that changed after Fidel Castro came to power. The family assets were confiscated and Mr. Naranjo-Rivera’s father went into hiding.
[5] Mr. Naranjo-Rivera alleged that the family home was searched by the authorities in an effort to find his father. In 1963, when Mr. Naranjo-Rivera was 11 years old, his father was arrested on political grounds and then imprisoned for eight (8) years.
[6] Mr. Naranjo-Rivera claimed that, during his student years in Cuba, he formed political views that were contrary to the prevailing communist ideology. Apparently, he was not adverse to expressing those views from time to time and this led to his expulsion from school. In 1972, he was drafted into the Cuban army but, again, his outspoken nature led to his arrest and the imposition of a prison term of five (5) years. He claimed to have been released early in 1975 under the terms of an amnesty program.
[7] Mr. Naranjo-Rivera then went back to school in Havana but he was later expelled for refusing to carry out assignments that he believed had military applications. In 1979, he said that he was arrested and interrogated for two (2) weeks as a consequence of being involved with the organization of opposition demonstrations in Havana. At this point, he claimed to have been working underground for the CDP as a member of an independent cell. In 1979, he was fired from his official job, arrested and detained (along with many others) without charges. In 1980, he was released from custody but forced to leave Cuba for the United States with thousands of other political dissidents.
[8] Upon arrival in the United States, Mr. Naranjo-Rivera acquired a so-called “pending” immigration status. The record suggests that he could have applied to become a permanent resident of the United States but, for reasons that are not entirely clear, he chose not to do so. Nevertheless, he was issued a United States social security card and was allowed to work. He was also previously married in the United States and is the father of several American-born children with his first wife. Throughout the record, Mr. Naranjo-Rivera’s United States immigration status is variously described. He is noted as a “legal resident”, a “permanent resident”, and a “convention refugee”. In other documents, he is acknowledged to have a right of return to the United States in accordance with his possession of an alien resident card. In his amended Personal Information Form (PIF), he stated that he did not believe that he would be allowed to return to Cuba. In other places in the record, Mr. Naranjo-Rivera described himself as stateless with no remaining United States immigration status.
[9] Mr. Naranjo-Rivera’s refugee claim was based on the above-noted history of political persecution in Cuba and a later history of discrimination and harassment during his years as a United States resident. He claimed that his problems in the United States escalated after the events of September 11, 2001 and he expressed considerable disdain for the prevailing political atmosphere there.
[10] Ms. O’Brien’s claim to protection was somewhat derivative from that of Mr. Naranjo-Rivera but she, too, claimed to have been the victim of discriminatory behaviour stemming from the marital relationship.
The Board Decision
[11] The Board’s decision turned primarily on its negative assessment of Mr. Naranjo-Rivera’s credibility. It closely examined his evidence of political persecution in Cuba and identified a number of perceived inconsistencies and testimonial weaknesses. Those findings led the Board to conclude that he lacked credibility and that his testimony was untrustworthy.
[12] Somewhat surprisingly, much of the Board’s attention was focussed on the likelihood that Mr. Naranjo-Rivera would be deported to Cuba. It seems to have treated his claim as though it was framed against Cuba despite the fact that he had lived in the United States for 24 years under some form of legal asylum. Although the Board’s decision does describe, in some measure, Mr. Naranjo-Rivera’s immigration status in the United States, it says nothing about whether he could resume his United States residency if he was returned there from Canada.
[13] The Board based its adverse credibility conclusion on perceived inconsistencies in Mr. Naranjo-Rivera’s evidence including the following:
(a) Mr. Naranjo-Rivera’s failure to refer to his father’s political profile in his original PIF; when questioned about this discrepancy, he appeared “evasive”;
(b) his failure to mention in either his original PIF or the amended version that he had been a member of the CDP;
(c) his apparent denial at the Port of Entry (POE) that he had ever been affiliated with a political party or opposition group in Cuba along with his failure to mention his status as a political prisoner in that country; and
(d) an inconsistency between his testimony that he did not have legal counsel during his POE interview and documentary evidence indicating that he did.
[14] The significance of the above-noted testimonial deficiencies was summed up in the Board’s decision in the following passage:
…For all of these reasons, I find the male claimant’s explanation for not including his allegations respecting his father’s political profile and his alleged Christian Democratic Party membership in Cuba in his original PIF narrative, and his failure to disclose to the immigration officer that he was a political prisoner in Cuba to be unreasonable. I find the male claimant’s failure to do so significantly undermines the credibility of all of these allegations.
[15] The Board also considered Mr. Naranjo-Rivera’s explanation for declining to apply for “permanent residence” status in the United States and found it to be wanting. This, too, was said to undermine his credibility with respect to his allegations of past mistreatment in Cuba.
[16] Finally, the Board found that it would now be safe for Mr. Naranjo-Rivera to return to Cuba. The Board’s conclusions on this point were as follows:
…I also refer to my negative findings respecting the male claimant’s alleged anti-Castro political opinion and activities in Cuba prior to 1980 and his alleged anti-government political activities in the United States. Given my negative credibility findings, the passage of time since the male claimant and his father departed Cuba, and the documentary evidence before me on the PDC and the current Christian Democratic Movement in Cuba, I find on a balance of probabilities that Cuban government officials would have no interest in the male claimant if he were to return to Cuba.
[Emphasis added]
[17] With respect to the claims by Ms. O’Brien and Ms. Naranjo-Rivera, the Board found that there was insufficient evidence to establish that they had a well-founded fear of persecution or that they would be subjected to persecution in the United States. According to the decision, the evidence offered by Ms. O’Brien established no more than the experience of some prior isolated incidents of ethnic discrimination and profiling.
Issues
[18] (a) What is the standard of review applicable to the issues raised on this application?
(b) Did the Board commit any reviewable errors in its decision?
Analysis
[19] It is well established that the Board’s credibility conclusions are entitled to the highest level of judicial deference. Nevertheless, such conclusions are reviewable if they are based upon findings of fact that are perverse, capricious or made without regard to the evidence: see Chen v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 1611, 2002 FCT 1194 at paras. 4-5.
[20] Counsel for the Respondent has candidly acknowledged that the Board made three erroneous findings to support its credibility conclusions. Nevertheless, the Respondent argues that those errors are not of sufficient significance to overcome Mr. Naranjo-Rivera’s obvious credibility problems and, therefore, the decision should stand. I do not agree.
[21] It is obvious that the Board erred by finding that Mr. Naranjo-Rivera had failed to mention his father’s political profile in his original PIF and only added it to the amendment. The original PIF clearly stated that his father had been a co-founder of the CDP and had been imprisoned for eight (8) years as a consequence of his political activities. Furthermore, the Board’s decision indicates that Mr. Naranjo-Rivera was evasive when asked about this supposed omission. One might well expect a witness to appear confused, uncertain or evasive if he is confronted by a non-existent inconsistency; but the problem is magnified here by the fact that Mr. Naranjo-Rivera was never questioned about this supposed omission from his PIF. The Board’s characterization of Mr. Naranjo-Rivera as evasive with respect to this point is, therefore, not only unfair but also completely unsupported by the evidence.
[22] The Board’s finding that Mr. Naranjo-Rivera had failed to identify his own membership in the CDP in his amended PIF was also clearly an error. That document stated that he had “worked in the underground CDP which had ties with other anti-Castro organizations”.
[23] Finally, it is readily apparent that the Board erred by finding that Mr. Naranjo-Rivera had been represented by legal counsel during his June 15, 2004 immigration interview. Mr. Naranjo-Rivera explained that he was reluctant to offer much detail during that interview in the absence of legal representation, an explanation the Board found lacking but on the basis of its own mistake.
[24] It seems to me that these mistakes by the Board are material to its credibility conclusion. They are not matters of peripheral detail which might have been overwhelmed by other significant credibility problems.
[25] Because the Board’s finding that Mr. Naranjo-Rivera could now return to Cuba without any remaining risk was based, in part at least, on its disbelief of his evidence of previous political persecution, that aspect of the decision is also rendered unsound.
[26] In the result, the Board’s decision is sufficiently unreliable that this case must be returned for reconsideration on the merits.
[27] The decision to remit this case for reconsideration applies only to Mr. Naranjo-Rivera’s refugee claim. No challenge was taken by Ms. O’Brien either on her own behalf or on behalf of Aurora Naranjo-Rivera, with respect to the Board’s rejection of their claims against the United States. I would add that those claims to protection were clearly unmeritorious and the Board was correct in its treatment of them.
[28] There are two other issues concerning Mr. Naranjo-Rivera’s claim that remain of concern.
[29] It seems to be that the Board’s stated concern about Mr. Naranjo-Rivera’s delay in seeking permanent residence status in the United States was misplaced. Mr. Naranjo-Rivera had obtained asylum in the United States upon his arrival there from Cuba. He was, therefore, safe and not at risk of being returned to Cuba. Whether or not he ever took the next step towards obtaining United States citizenship does not give rise to an inference that he lacked a reasonable fear of returning to Cuba. Similarly, the fact that he took twenty-four (24) years to apply for refugee status in Canada says nothing about whether he feared a return to Cuba but it could be a highly relevant consideration in determining if he had a reasonable fear of persecution in the United States. This leads me to my final point.
[30] If Mr. Naranjo-Rivera enjoyed an unqualified right to resume his United States residency, the issue of a return to Cuba would presumably be moot. In that event, his only claim to protection would have to be framed solely against the United States which, in the case of his wife and child, the Board reasonably found to be unmeritorious.
[31] Suffice it to say that whatever immigration status Mr. Naranjo-Rivera enjoyed in the United States, he was allowed to remain there, to marry, to raise a family and to be gainfully employed for twenty-four (24) years. Indeed, it appears that he was allowed to remain in the United States under colour of law. There is no indication that the American authorities were ever inclined to return him to Cuba and it appears that he has no present wish to do so. It is entirely possible that he would be allowed to continue his United States asylum and certainly the other members of the family have a right of return.
[32] It seems to me, therefore, that if Mr. Naranjo-Rivera’s claim is reconsidered, the question surrounding his right to return to the United States to resume his previous immigration status needs to be conclusively answered. If he has a right of return which will recognize his previous asylum status, then his claim to refugee protection in Canada should be assessed as against the United States and not against Cuba.
Conclusion
[33] This application for judicial review is allowed with the matter to be remitted to a differently constituted panel of the Board for redetermination on the merits. The Respondent did not propose a certified question and no question of general importance arises on these reasons.
JUDGMENT
THIS COURT ADJUDGES that this application is allowed with the matter to be remitted for reconsideration by a differently constituted panel of the Board.
"R. L. Barnes"
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2848-06
STYLE OF CAUSE: RAFAEL NARANJO-RIVERA, NAOMI RUTH O’BRIEN, AURORA NARANJO-RIVERA and DANIEL NARANJO-RIVERA
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: APRIL 10, 2007
AND JUDGEMENT BY: Justice Barnes
APPEARANCES:
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Edward Rice
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Omar Siddiqui
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SOLICITORS OF RECORD:
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Edward Rice Barrister & Solicitor 301 – 63 Albert Street Winnipeg, Manitoba R3B 1G4
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Omar Siddiqui Department of Justice Prairie Region 301 – 310 Broadway St. Winnipeg, Manitoba R3C 0S6 |