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1112110 [2012] RRTA  349  (3 February 2012)

Last Updated: 8 June 2012

1112110  [2012] RRTA 349  (3 February 2012)


DECISION RECORD

RRT CASE NUMBER: 1112110

DIAC REFERENCE(S): CLF2011/161836, OSF2010/083279

COUNTRY OF REFERENCE: Cuba

TRIBUNAL MEMBER: Andrew Mullin

DATE: 3 February 2012

PLACE OF DECISION: Sydney

DECISION: The Tribunal affirms the decision not to grant the Applicant a Protection (Class XA) visa.


STATEMENT OF DECISION AND REASONS
APPLICATION FOR REVIEW

  1. This is an application for review of a decision made by a delegate of the Minister for Immigration and Citizenship to refuse to grant the Applicant a Protection (Class XA) visa under s.65 of the Migration Act 1958 (the Act).
  2. The Applicant, who is in immigration detention, claims to be a citizen of the Republic of Cuba. He arrived in Australia on [date deleted under 4. 431(2) of the Migration Act 1958 as this information may identify the applicant] June 2010 and applied to the Department of Immigration and Citizenship for the visa [in] September 2011. The delegate decided to refuse to grant the visa [in] November 2011 and notified the Applicant of the decision.
  3. The delegate refused the visa application on the basis that the Applicant is not a person to whom Australia has protection obligations under the Refugees Convention.
  4. The Applicant applied to the Tribunal [in] November 2011 for review of the delegate’s decision.
  5. The Tribunal finds that the delegate’s decision is an RRT-reviewable decision under s.411(1)(c) of the Act. The Tribunal finds that the Applicant has made a valid application for review under s.412 of the Act.

RELEVANT LAW

  1. Under s.65(1) a visa may be granted only if the decision maker is satisfied that the prescribed criteria for the visa have been satisfied. In general, the relevant criteria for the grant of a protection visa are those in force when the visa application was lodged although some statutory qualifications enacted since then may also be relevant.
  2. Section 36(2)(a) of the Act provides that a criterion for a protection visa is that the applicant for the visa is a non-citizen in Australia to whom the Minister is satisfied Australia has protection obligations under the 1951 Convention relating to the Status of Refugees as amended by the 1967 Protocol relating to the Status of Refugees (together, the Refugees Convention, or the Convention).
  3. Further criteria for the grant of a Protection (Class XA) visa are set out in Part 866 of Schedule 2 to the Migration Regulations 1994.

Definition of ‘refugee’

  1. Australia is a party to the Refugees Convention and generally speaking, has protection obligations to people who are refugees as defined in Article 1 of the Convention. Article 1A(2) relevantly defines a refugee as any person who:
owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it.
  1. The High Court has considered this definition in a number of cases, notably Chan Yee Kin v MIEA (1989) 169 CLR 379, Applicant A v MIEA (1997) 190 CLR 225, MIEA v Guo (1997) 191 CLR 559, Chen Shi Hai v MIMA [2000] HCA 19; (2000) 201 CLR 293, MIMA v Haji Ibrahim [2000] HCA 55; (2000) 204 CLR 1, MIMA v Khawar (2002) 210 CLR 1, MIMA v Respondents S152/2003 (2004) 222clr1.html" class="autolink_findacts">222 CLR 1, Applicant S v MIMA [2004] HCA 25; (2004) 217 CLR 387 and Appellant S395/2002 v MIMA [2003] HCA 71; (2003) 216 CLR 473.
  2. Sections 91R and 91S of the Act qualify some aspects of Article 1A(2) for the purposes of the application of the Act and the regulations to a particular person.
  3. There are four key elements to the Convention definition. First, an applicant must be outside his or her country.
  4. Second, an applicant must fear persecution. Under s.91R(1) of the Act persecution must involve “serious harm” to the applicant (s.91R(1)(b)), and systematic and discriminatory conduct (s.91R(1)(c)). The expression “serious harm” includes, for example, a threat to life or liberty, significant physical harassment or ill-treatment, or significant economic hardship or denial of access to basic services or denial of capacity to earn a livelihood, where such hardship or denial threatens the applicant’s capacity to subsist: s.91R(2) of the Act. The High Court has explained that persecution may be directed against a person as an individual or as a member of a group. The persecution must have an official quality, in the sense that it is official, or officially tolerated or uncontrollable by the authorities of the country of nationality. However, the threat of harm need not be the product of government policy; it may be enough that the government has failed or is unable to protect the applicant from persecution.
  5. Further, persecution implies an element of motivation on the part of those who persecute for the infliction of harm. People are persecuted for something perceived about them or attributed to them by their persecutors.
  6. Third, the persecution which the applicant fears must be for one or more of the reasons enumerated in the Convention definition - race, religion, nationality, membership of a particular social group or political opinion. The phrase “for reasons of” serves to identify the motivation for the infliction of the persecution. The persecution feared need not be solely attributable to a Convention reason. However, persecution for multiple motivations will not satisfy the relevant test unless a Convention reason or reasons constitute at least the essential and significant motivation for the persecution feared: s.91R(1)(a) of the Act.
  7. Fourth, an applicant’s fear of persecution for a Convention reason must be a “well-founded” fear. This adds an objective requirement to the requirement that an applicant must in fact hold such a fear. A person has a “well-founded fear” of persecution under the Convention if they have genuine fear founded upon a “real chance” of persecution for a Convention stipulated reason. A fear is well-founded where there is a real substantial basis for it but not if it is merely assumed or based on mere speculation. A “real chance” is one that is not remote or insubstantial or a far-fetched possibility. A person can have a well-founded fear of persecution even though the possibility of the persecution occurring is well below 50 per cent.
  8. In addition, an applicant must be unable, or unwilling because of his or her fear, to avail himself or herself of the protection of his or her country or countries of nationality or, if stateless, unable, or unwilling because of his or her fear, to return to his or her country of former habitual residence. The expression ‘the protection of that country’ in the second limb of Article 1A(2) is concerned with external or diplomatic protection extended to citizens abroad. Internal protection is nevertheless relevant to the first limb of the definition, in particular to whether a fear is well-founded and whether the conduct giving rise to the fear is persecution.
  9. Whether an applicant is a person to whom Australia has protection obligations is to be assessed upon the facts as they exist when the decision is made and requires a consideration of the matter in relation to the reasonably foreseeable future.

CLAIMS AND EVIDENCE

  1. The Tribunal has before it the Departmental and Tribunal files relating to the Applicant. The Tribunal also has had regard to the material referred to in the delegate’s decision, and other material available to it from a range of sources.
  2. The Applicant appeared before the Tribunal [twice in] December 2011 and [once in] January 2012 to give evidence and present arguments. The Tribunal also heard evidence from two witnesses, [Pastor A] and [Mr B]. The Tribunal hearing was conducted with the assistance of interpreters in the Spanish and English languages.
  3. The Applicant was represented in relation to the review by his registered migration agents.

Summary of written claims

  1. In his protection visa application the Applicant claims to have been born in Trinidad, Cuba, in [date deleted: s. 431(2)]. He claims to have lived at various addresses in Cuba between [his birth] and 2004, to have lived [in] [Country 5], from 2004 to 2006, and to have lived at an address in Trinidad, Cuba, from 2006 until his departure for Australia in June 2010. He claims to have received a [formal education] in Cuba, ending in 1991 or 1992 when he obtained a Diploma. He claims to have been a member of the Cuban armed forces from [years deleted: s.431(2)], at first through compulsory military service and, after 1984, as a member and coach of the army [sporting team]. He claims he continued as a [sportsman and] coach after he left the army, up to the time he left Cuba to come to Australia. He claims to have been married in December 2009 and separated in December 2010. He lists his mother and three siblings as living in Cuba and one sibling as living in France.
  2. The Applicant’s substantive claims are set out in an attached Statutory Declaration signed by him [in] October 2011. They may be summarised as follows:
  3. Also on the Departmental file are, relevantly:

A statement by the Applicant explaining that he married in December 2009 in Cuba and began to live with his wife in Australia in June 2010. The relationship had broken down by December 2010 and his wife ejected him from the house. She withheld from him Departmental documents relating to his visa status and made false allegations of domestic violence. He was advised to plead guilty to these as he did not fully understand the court proceedings.

A letter addressed to the Applicant from his legal adviser confirming that [in] September 2011 he was sentenced to a term of imprisonment of three months for breaching an [Apprehended Violence Order]

  1. Also on file OSF2010/083279 is a supporting email from the Applicant’s sponsoring spouse, [name deleted: s. 431(20], [dated in March 2010] in which she refers to the Applicant’s work as a teacher in [Country 5] and continues, in part:
.....
[Name] has obtained PRE from the Cuban government which is Permission to Reside Exterior. This quite often takes up to one year to obtain from the Cuban government. [Name] received this in 30 days which shows what an exemplary citizen he has been. If there was absolutely any problem with criminal record from either country considering how closely Cuba and [Country 5] work together, he certainly would not have been granted PRE. He can send you a copy of the Permission Reside Exterior which would prove that there was no problem with his behaviour in [Country 5]. Cubans only permit very trusted and esteemed citizens to volunteer to teach in other countries and if there is any problem with behaviour it is taken extremely seriously and he would have been dismissed from his teaching position. In [Name’s] case, he was very much congratulated on his behaviour in [Country 5] and resumed his teaching position in Cuba when he returned to Cuba. This teaching position continued until recently when he resigned after marrying me to prepare to migrate to Australia.
.....

Departmental interview

  1. I have reviewed the audio recording of a Departmental interview attended by the Applicant [in] October 2011. He added to his written claims by claiming, relevantly, that:

Pre-hearing submission

  1. [In] December 2011 the Tribunal received a submission from the Applicant’s then-adviser canvassing legal issues and quoting country information about human rights conditions in Cuba (a further copy of this submission was provided by the present adviser at the third session of the hearing [in] January 2012) The adviser submits, in summary, that:

Claims at hearing

  1. Asked about his protection visa application and Statutory Declaration, at the first session of the hearing [in] December 2011, the Applicant said these documents had been read back to him in Spanish. Asked if he had been able to understand their contents he said he had, although it was long ago and he could not remember them well. He confirmed that this information, and the information he had given in his Departmental interview was true.
  2. Asked if he wished to change any of his previous claims the Applicant referred to a conversation he had had with a nun while he was in [Country 5]. This had been overheard by security officials attached to his teaching mission who accused him of speaking against the government of Cuba. When he returned to Cuba he was forbidden to leave for other countries as a trainer. Asked why this incident was not mentioned in his Statutory Declaration he said he was not a machine, able to remember things which had happened long ago. I put to him that the incident he was claiming was not an unimportant or marginal one - he was instead claiming to have been punished for speaking out against the government while he was in [Country 5], by being prevented from leaving his own country. This was directly relevant to his claim to fear harm in Cuba because of his political opinion. Asked why such an important and relevant detail would not have been included in his protection visa application and Statutory Declaration he said he had mentioned many things to prove that he had been prevented from leaving Cuba.
  3. Asked what he feared would happen to him if he returned to Cuba the Applicant said he was a counter-revolutionary and did not agree with the system there. He feared he would be jailed for many years for what he had done. Everyone was commenting that he would be jailed. In Cuba it is not possible to speak against the revolution, and jail terms of four or five years are imposed for doing so. He had lived all his life in fear of expressing his feelings about Cuba and its dictatorship and he was afraid of being killed. He had had encounters with the police. These things added up. Many people involved with the government and the security police were making comments about him in the street.
  4. Asked about this latter claim the Applicant said the comments were not being made in the street but some of his former students who were children of the security police had mentioned that they were being spoken of. His mother had told his brother about what was being said about him, and that if he returned to Cuba he would be jailed. Friends had also told him of these comments. Asked when he had begun hearing these things he said it was after he arrived in Australia. He had spoken with other Latin American people here against Cuba. Asked why these matters had not been mentioned by him in his Statutory Declaration or Departmental interview he said he had mentioned that he did not want to return to Cuba. I noted that there was no mention of the security police talking about him to their children or that he had been hearing their comments from his mother. He repeated that he had heard the comments from his mother and brother and that they were sent to him on the internet. Asked again about the late appearance of these claims he repeated that he had received the comments. I put the question to him once more, with a similar response.
  5. Asked if he feared harm in Cuba for any other reason the Applicant said he had been religious from an early age but he could not express his religious activities in Cuba in the way he could express them here. According to the Cuban government religion is against the revolution. He could not attend church freely. In 1977, 1978 and 1979 he attended [Church 3] at a time when he was a chief of brigade in the [organisation deleted: s.431(2)] .This was a famous church and he loved it because of the history of its crucifix. The police observed him and took him out of the church. They told him that people in charge could not attend the church, and that he would be in trouble. They noted the details of his job and sent a report to his employers. He was demoted from the position of chief of brigade and when he asked for an explanation was told that it was because he had attended church, the church being against the revolution. He said he had confirmed to them he was part of the church, a Christian and a Catholic. Asked again when this was he said it was in 1977. I noted that he had never previously mentioned it. He said it was new.
  6. Asked what he feared would happen to him because of his religion the Applicant said that, partly because of his religion and partly because of his politics, he would have no freedom. He would not be able to attend church or do anything. He would be jailed for many years and would become one of the disappeared. Asked why he could not attend church he said the church was against the revolution.
  7. Asked if he feared harm in Cuba for any other reason the Applicant said there were new things that he was recounting for the first time. While he was in immigration detention they were coming to his mind and he wanted them to be included. Asked if he meant there were other reasons for fearing harm in Cuba, apart from his political opinion and religion, he indicated that there were not.
  8. The Applicant confirmed the biographical details set out in his protection visa application. Following his military service, during which he had risen to the rank of [rank deleted: s.431(2)], he had worked for a sports club for eight or nine years as a [competitor and coach]. He had travelled to a number of socialist countries for competitions and spent two years in [Country 5] in a coaching capacity. He left Cuba in 2010 after marrying an Australian citizen.
  9. The Applicant confirmed his claim to have a political opinion opposed to the Cuban government. Asked how he had expressed this opinion while in Cuba he said he had spoken to other people. He was afraid of what had happened to him in 1980 when he had spoken against the government and the police. About seventy police had thrown gas at him. They beat him in the ribs and he had four stitches in his head. He was placed in the cells and fined 200 Pesos, a large amount of money. They threatened that if he committed another offence he would be jailed for a longer period and would disappear. This made him very fearful that he would be imprisoned again and he had no freedom to say anything else against the dictatorship.
  10. Asked if there were any further such incidents in Cuba the Applicant said the government had wanted him to come back to Cuba (from [Country 5]) because they knew he wanted to stay in another country. After joining the national team he had not been allowed to leave Cuba. He had to leave the military. Asked if he had ever been arrested again he said he had just remembered that he was also arrested in 1978 or 1979 during a protest in a street market over the lack of meat. He had joined in the discussions of members of an anti-revolutionary group who were complaining about the diversion of meat to the leaders of Trinidad. The police arrived and took the group, about fifty people, to the police cells. He remained there for one day and was then released with a fine of 100 Pesos.
  11. I asked the Applicant if he meant he had been arrested in three incidents in total, in 1979, 1980 and 1982. He said that after the authorities began to persecute him he had become very fearful that he would be put in jail for many years. They had a record of him. Asked again he repeated he had been told, by the government and the security police, that if there was one further incident he would be jailed for many years. Many people told him he would be jailed for a long time. He had been very fearful. Asked again he confirmed that he was arrested on three occasions.
  12. I asked the Applicant how, if he had been arrested on three occasions, it had been possible for him to have been [promoted] in the military and made captain of the national [sporting] team and head of [a] sports club. He said he had been head of the army’s [sporting] team, not the national [sporting] team and that the latter was more prestigious. He was not permitted to travel anywhere because of his political opinion. I put to him that it was hard to believe that if he had been regarded as having a political opinion against the revolution and government, and had been jailed on three occasions for this, he would have been promoted in the military and sent overseas as the head of the army [sporting] team. He said military service is compulsory in Cuba. While performing his service he had trained and his [sporting] abilities had been further developed. Because of his success he was appointed to the army sports club. When he travelled outside the country he was accompanied by a group of security people who prevented him from doing anything. The international sporting events in which he had participated were military games and he competed against the armed forces of other socialist countries.
  13. Noting that the arrests he was claiming had occurred 30 years ago I asked the Applicant why he would now be in trouble because of them if he returned to Cuba. He said he would be jailed and killed if he returned. I asked him why, if he had not suffered this harm in the last thirty years he would now fear it. He said many things had happened. In Cuba he had no freedom and was not allowed to go anywhere. He would not be allowed to do anything. I repeated the question and he said he had been doing things. He had been having secret contact with family members who were political prisoners. Asked about this contact he said he had an uncle who was a political prisoner. Asked how he was maintaining this contact he said his uncle was now out of jail but had been a prisoner before the revolution. I noted that he had never mentioned this contact previously. He said nobody had asked him about this previously.
  14. I asked the Applicant why, if he had been expressing his political opinion in this way, including by contacting political prisoners, he had not been arrested after 1982. He said he was afraid and had no freedom, and that he would be put in jail and could not talk.
  15. I put to the Applicant that he seemed to be saying two things. On one hand he was saying that he had been too frightened after 1982 to express his political opinion. On the other he was saying that he had been expressing his political opinion after that time, and for that reason the authorities would put him in jail. He said that in Cuba one cannot express any opinion. The authorities had a secret file on him. He feared he would be jailed and killed if he spoke out.
  16. Asked about his religion the Applicant said he was a Christian and had the ‘Jesus Christ religion.’ He loved Jesus Christ with all his heart. Asked the denomination of his religion he hesitated for some time and gave no clear answer. I noted that he had claimed previously to have been a Catholic in Cuba. He said he was a Catholic in his early years and then changed to the ‘Christian church.’ I put to him that the Catholic Church is Christian. He said the Christian church is different. The adviser suggested that the Applicant was presently attending the church of the Assembly of God. The Applicant then said he had been a member of the ‘Christian church’ for a very long time. I reminded him of his earlier evidence that he had been attending [Church 3] which, from his description, seemed to have been a Catholic church. He said his mother was baptised there.
  17. At the resumed session of the hearing [in] December 2011 I asked the Applicant again about his church attendance in Cuba. He said he attended a Catholic church as a child. As he grew older he felt a profound love for Christ and began to attend a Pentecostal Christian charismatic church. He made a full surrender to the Lord Jesus Christ and committed his life to Him. Asked the name of the Pentecostal church he said it does not have a name because it is persecuted in Cuba. Its gatherings took place in different places.
  18. The Applicant confirmed that he was baptised in Cuba, when he was eight years old. Later he was baptised in the Pentecostal church there and had also been baptised in Australia. His childhood baptism occurred in [Church 3]. After some discussion he confirmed that this is [details in relation to church deleted: s.431(2)] a Catholic church. He agreed that he had also been confirmed, at the age of fourteen, and that he had participated in the Mass in the same church. He had continued this participation up to [1983 or 1984], and then changed to the Pentecostal church. Asked how this change had come about he said he committed his life to Jesus Christ. He had a relative who attended the church and friends told him about it. He followed their witnessing of it.
  19. Asked how frequently he had attended Pentecostal services in Cuba the Applicant repeated that the church is persecuted and does not have a fixed meeting place. Meetings took place in different private houses. He attended whenever he was free – every day. The participants had to be very watchful because there were police everywhere – every few metres. The government persecuted the church. Asked how participants would know where the services would be held he said the pastor would send messages through members or sometimes over the telephone.
  20. Noting that he had been in the army at the time I put to the Applicant that it would have been very difficult for him to attend these church meetings. He said he was in different locations and was given time to do what he wanted to do. He would use this time to gather with the believers. I put to him that it seemed hard to believe someone who was undergoing compulsory military service would have free time to attend meetings of an illegal church every day. He said that before he joined the army he would attend the meetings every day. Once he was in the army he could attend only when he was given leave. I noted that he claimed to have joined the church in 1983 or 1984 at a time when, according to his protection visa application, he was performing his military service. He said he began attending the Pentecostal church before joining the army. There were some other believers in the army and he would join them for meetings in remote locations. Asked again how old he had been when he joined the Pentecostal church he repeated that he was [age details deleted: s.431(2)]. He was recruited into the military at [age details deleted: s.431(2)] but attended a lengthy driving course, part-time, before beginning his actual military service at [age details deleted: s.431(2)]. While on his driving course he was able to attend the church meetings on a daily basis. He could go to the service at any time of the day. Asked about this latter claim he said people would simply knock on the door and ask to gather. Information would then be given about the time to attend the gathering.
  21. I put to the Applicant that he had given differing versions of his Pentecostal church attendance while performing his military service. He said that during military service he was sometimes free at the end of the day to do different things. His driving course was an external one and required his attendance only three times a week. He was not living in a military camp until after the course ended. Asked about the duration of this course he said it had taken a year – six months for theory and six months for practice. I put to him that I found it difficult to believe a driving course would extend for such a period. He repeated his claim.
  22. Asked about the frequency of his church attendance after leaving the army the Applicant said he went very often – four times a week. He continued to attend the church all the time he was in Cuba.
  23. Asked if he had ever been in trouble for attending this church the Applicant said there had been problems relating to his Catholic Church attendance in 1977, as he had mentioned. The police had come and had taken down his details to make a report to his work place. As a result he was demoted. He agreed that he had been [age deleted: s.431(2)]. Asked what his work had been he said he was a [deleted: s. 431(2)] labourer. I noted that in his protection visa application he claimed to have been studying at a technical school from 1977 to 1978, and that there was no mention in the application of his having worked as a [deleted: s. 431(2)] labourer. He said he was not a [deleted: s. 431(2)] labourer but a labourer. I put to him that his immediate denial of something he had just claimed could lead me to doubt the truth of what he was saying. He said he was not sure if he had mentioned [industry deleted: s. 431(2)] in the application. He then said the incident had occurred in 1987, when he was working in the [details deleted: s. 431(2)] department, not in 1977, although he was confused and could not remember clearly. I put to him that, according to his claims, he had joined the Pentecostal church by 1987 and was no longer involved with the Catholic Church. He said he had made a mistake. The incident occurred when he was attending the Pentecostal church, not the Catholic Church.
  24. I asked the Applicant if he was claiming that the police had known he was attending the Pentecostal church and had reported him to his workplace. He agreed this was the case. Asked what happened then he said that after the police reported him he was demoted. He had not been a supervisor but sometimes he had been placed in charge of a task. After the demotion no workers were placed under his direction. As the church was against the government it was not permitted.
  25. I noted that at the previous session of the hearing the Applicant had been unable to name the church he attended in Cuba when I had first asked him about it. I put to him that a person who had been attending such a church every day, or three or four times a week, for most of his life since [age deleted: s.431(2)] could be expected to at least remember its name. He said meetings of the church were not held in a fixed location. I put to him that the name of the Pentecostal church had not occurred to him when he was first asked about it. He said he remembered saying clearly that the Pentecostal church did not have a fixed address. I put to him that his inability to remember the name could cast doubt on the truth of his claims to have been a member of the church or to have had any involvement in it. He said the Pentecostal church in Cuba is said to be against the government and the revolution. When he joined it the church had no fixed address and met in various houses. It did not have a name. I asked him, again, why he had not been able to name the Pentecostal church previously. He said he had been very nervous and tense.
  26. The Applicant confirmed his claim to have been baptised in the Pentecostal church in Cuba. Asked in which year this occurred he said he could not remember very well but, after a brief adjournment said he was now able to remember that he had never been baptised in the Pentecostal church in Cuba as the church was persecuted. He had however been baptised in the Pentecostal church in Australia. The adviser noted that [Church 2] was in the Pentecostal tradition.
  27. The Applicant confirmed his claim that he had regularly attended services of the Pentecostal church in secret from about 1981 to his departure from Cuba in 2010. Asked if he had been detected doing so on only one occasion he said that apart from the incident he had mentioned there were other occasions on which the police had detected him and the other church members but nothing happened. They lived in fear because they knew of people who had been taken to prison. The government sometimes looked for the smallest excuse to place someone in prison. Asked if he meant there were occasions on which the police knew he was attending the church but did nothing about it he said sometimes they did not detect him properly. He knew of other people who were jailed. Asked again he said the police detected them on the way to the meeting and asked them if this was where they were going. They had denied it and this was why the police could not take drastic measures. I asked if simply denying it was sufficient to prevent the police taking action. He said the police were not absolutely sure they were headed for the meeting and so could not do much. I asked if he meant that the police in Cuba are only able to act when they are completely certain, rather than arresting people simply on suspicion and beating them up. He said they made sure people belonged to the Pentecostal church before taking any action.
  28. Asked if he had attended a Pentecostal church in Australia after his arrival in June 2010 the Applicant said he had attended many churches and could not remember the name of the first one. He had attended churches everywhere he had been in Australia. Asked if he could remember the name of any of them he said they had English names and he could not remember them. He had attended a church in [suburb deleted: s. 431(2)] and while he was in immigration detention. Asked about the supporting letter from [Church 1] he confirmed this was one of the churches he attended.
  29. I asked the Applicant why, if he had been a devout and committed member of the Pentecostal church in Cuba and had been unable to be baptised into that church because of the repression it experienced there, he had waited fifteen months after arriving in Australia before he had a Pentecostal baptism. He said that when he arrived in Australia, a very big country, he did not at first understand English and did not know how to get around. He was, in some ways, led like a child. Asked if he was saying he had been unable to find a Pentecostal church he repeated that he could not speak English and so did not know how to ask directions to one. I noted that he had been sponsored to Australia by his wife, an Australian citizen, with whom he had lived for some six months. He agreed this was the case. I asked if he was saying he had been unable to ask his wife where he might find a Pentecostal church. He said that she took him to church but she wanted him to learn English first and to complete a driving course. I asked if his wife would not take him to a Pentecostal church. He said she did not know about Pentecostal churches. I noted that they are not a secret in Australia and can be located in the telephone directory. He repeated that she had taken him to a church and that she wanted him to study English and complete his driving course. He was also told that if he wanted to become a [sporting] instructor he would need to master English.
  30. I explained to the Applicant the operation of s.91R(3) and its possible significance for the decision in his case in relation to his baptism into [Church 2]. After some further discussion and clarification he confirmed that he understood this. He had not been baptised to strengthen his claims. Because of his political beliefs and religion he would be put in jail.
  31. Asked if he had any information to indicate that he would be prevented from attending the Pentecostal church in Cuba the Applicant asserted that he would be prevented from doing so. The adviser stated that there was a reference to the subject in a submission to the Tribunal (apparently, the submission received by the Tribunal [in] December 2011). He had also obtained a copy of a Christian Solidarity Worldwide briefing on religious freedom in Cuba, dated August 2010, which seemed to be the most recent information on the subject and which included references to the Pentecostal church in Cuba. This indicated, in summary, that distinctions were made between established churches, such as the Anglican and Catholic churches, and others. Religious expression is controlled of the Office of Religious Affairs, under the leadership of a notorious official named Caridad Diego who makes life particularly hard for Christian groups in the Pentecostalist tradition. He said the Applicant had also downloaded from the internet two media reports on the subject (these were in Spanish and were subsequently submitted to the Tribunal with English translations)
  32. I told the Applicant that I would take these reports into consideration while noting that there was other independent country information available to the Tribunal indicating that the Pentecostal church in Cuba operates freely and has a rapidly increasing membership. Its members are not confined to worshipping in private houses but also have specially built churches including in Havana. The information also indicated that the Pentecostal church is a member of the Cuban Council of Churches. I put to him that if I accepted he was a member of the Pentecostal church and would worship in that church if he returned to Cuba, the information could indicate that he would not suffer any harm for that reason. In response he referred to one of the two internet documents he had submitted which, he said, reported a violent incident in which police broke into a gathering, threatened the pastor with a weapon and took all the members out. I noted that the report of the incident did not suggest that such harm was suffered by other members of the Pentecostal church. He referred again to the incident and said it showed the Pentecostal church was subject to persecution.
  33. At the third session of the hearing, [in] January 2012 I asked the Applicant about his travel to Australia. He said he left Cuba in June 2010 and arrived here [on a date in] June 2010, having spent 3 days in Chile en route. He had left Cuba legally without having to bribe anyone to do so as his ex-wife had completed all the paperwork. I asked why he had waited until 2010 to leave Cuba if he had feared harm since the early 1980s because of his political opinion and religion. He said it is very difficult to leave Cuba and his ex-wife had set the marriage date. Asked why he had not left in the 1980s or 1990s, before he met her, he said that if he wanted to leave he would have to be married. Noting that he had lived in [Country 5] for two years I asked why he had not sought protection there. He said he was sent there as a member of a group (‘thousands of people’) and was under constant surveillance by security officers. I asked if he meant he was under surveillance for every hour of every day for the period. He said this was the case – given an opportunity he would have fled [Country 5] but security was intense because it was well-known that everyone wanted to flee Cuba. I put to him that it seemed hard to believe he would have had no opportunity during two years to escape this surveillance. He said he lived in a training centre and the surveillance was heightened by previous cases in which Cubans there had escaped.
  34. Noting that his spouse visa was issued [in] April 2010 I asked the Applicant why, if he feared harm in Cuba, he had waited a further two months before leaving the country. He said this had not depended on him. His wife had made telephone calls and had to deal with the Cuban authorities and the Australian Embassy in Washington. I noted that once he had received his visa there would have been no further need for dealings with the Australian authorities. He said there were delays in sending his passport to and from the Australian Embassy - it took about twenty days to receive it back from Washington. He could not simply leave because his ex-wife organised everything and was waiting for him in Chile.
  35. I put to the Applicant that these seemed simply to be organizational details and that someone who genuinely feared that his life was in danger or that he would be jailed would leave as soon as he obtained his visa. He said Cuba has its own protocols and policies as a communist country. Unlike western countries, where people are free to leave whenever they wish, in Cuba everything is organised according to the government’s rules. I asked him if in order to leave it was necessary to obtain a document known as a ‘Permission to Reside Exterior’ (PRE). He agreed this was the case, and that one could not simply board an aircraft. I put to him that once the PRE, together with his passport and tickets, was obtained he could leave. He said his wife arranged everything and he did not know about it. I put the question to him again, noting that he should know about it since he had left Cuba a number of times. He said things were different when he left as a spouse – in contrast to the occasions when he had left as a sportsman with the government arranging all the paperwork, on this occasion his wife had had to make all the arrangements. Asked what was required for him to leave Cuba apart from the PRE, his passport and tickets he said he depended on his wife. It was she who sent the tickets and told him to leave on a certain date.
  36. At the adviser’s suggestion I asked the Applicant when it was that he had received his airline tickets. After some discussion he said he thought it was two weeks or a month before he left.
  37. I noted that there was information available to the Tribunal, in an email dated [in] March 2010 to the Australian Embassy in Washington from the Applicant’s sponsoring spouse [name deleted: s. 431(2)], indicating that he had obtained his PRE from the Cuban government. [Name deleted: s. 431(2)] had stated that the PRE can often take up to one year to obtain but that the Applicant had received his within thirty days, showing that he had been an exemplary citizen and that he had no criminal record either in Cuba or in [Country 5]. I put to him that this information indicated that he was seen as a model citizen in Cuba, as indicated by the rapid issue of his PRE. He said he had done his training job very well. He was not the only person to receive a PRE However although he was against the Cuban regime and the revolution he could not express these views as this would land him in big trouble. I put to him that he claimed to have been arrested previously after expressing his political opinion in Cuba, that he had a police record for this and that he would be harmed if he returned for this reason. He said ‘they’ could say he was a model citizen but he did not agree. They did not have all the facts. He was very afraid that he would disappear if he returned to Cuba. This was what happened to model citizens. The regime was built on lies and deception and they keep many things secret.
  38. I noted that one of the documents submitted in support of the Applicant’s spouse visa application was a criminal records certificate issued by the Cuban Ministry of Justice [in] March 2010, in Spanish with an English translation. The document stated that there was no evidence that the Applicant had an existing criminal record. I asked how such a certificate could be issued if the police had records showing that he had been arrested previously for expressing his opposition to the regime and intended to harm him for this reason. He said the authorities knew what he had done in 1980 and 1982 and were aware of his opinions and membership of the Pentecostal church but did not write criminal records down. This showed people could leave the country. If he went back he would be in trouble for these things. I put to him that I found this very difficult to believe. He said the Cuban government did not expose things as they truly are. They may say a person was a model citizen while knowing of his real political views.
  39. Asked about the fifteen month period between his arrival in Australia in June 2010 and his application for protection, the Applicant denied there had been such a delay. After he was separated from his ex-wife the Department sent him many letters but she did not pass them on to him. Asked again he said he had made an application when he was in jail [location deleted: s.431(2)] then made a further application when he was released from jail and placed in immigration detention. The adviser said he understood that a draft of the Statutory Declaration attached to the protection visa application had, in fact, been prepared with the assistance of the New South Wales Legal Aid Office while the Applicant was still in jail. An explanation offered by the Applicant appeared to confirm that this understanding was correct.
  40. I asked the Applicant why he had waited until he was jailed before claiming protection as a refugee in Australia. He said that even before he was jailed he had been attempting to get in touch with the Department. Many letters had been sent to him at his ex-wife’s address but she did not pass them on. He could not speak English and did not know how the system operated. He had been seeking information about how to make an application. I put to him that even if he did not speak English there are many people in Australia who speak both Spanish and English and that it was hard to understand why he could not have quickly found information about how to make an application or how to contact a migration agent who spoke Spanish. He said he had not been well. His wife had ejected him from the house and he had lived on the streets for about thirty days, without anything to eat, until he met someone who helped him.
  41. In his witness evidence [Mr B] said he first met the Applicant in the Latin Club in [location deleted: s. 431(2)] over a year previously. He himself was originally from Peru. He said he preached the Word of God to the Applicant and spoke to him about God. The Applicant mentioned to him the problems he was experiencing in his marriage. He counselled him to accept things as they were and brought him to his church so that his life could be changed. He and the pastor at the church worked with the Applicant and he subsequently converted. The Applicant had been attending the church but was later sent to jail after problems with his wife. He continued to attend church while in jail and was baptised later while in immigration detention.
  42. Asked about his church the witness gave its name as [Church 1], located in [suburb deleted: s. 431(2)]. Services in the church were conducted in Spanish in the morning and in English in the afternoon. Asked about the document in Spanish showing that the Applicant had completed part of a course in ‘Grand Truths of the Bible’ he said this did not relate to his own church. The Applicant said he had received this from his church while in jail [location deleted: s.431(2)].
  43. Noting the witness’s evidence about the Applicant’s conversion after attending his church I asked what the Applicant had converted from. He said that when one has difficulties the answer is to seek God’s assistance. Asked again he said he did not know – the Applicant had been attending a church with his ex-wife but he did not know if he had been a Catholic ‘or a Christian.’ He could only tell about him from the time he had met him. I put to him that it was hard to understand how, having met the Applicant and had discussions with him in some depth related to his religious conversion, he would not know about this. He said that in his opinion, ‘and God’s opinion,’one can have many sins but they can be forgiven by God. Noting that the question was not one of past sins but of past religions I asked if he had not ever asked the Applicant about this when dealing with him on a matter so important as his new religion. He said the Applicant mentioned that he believed in God but this was what both Catholics and Christians said.
  44. Asked about the religion of [Church 1] the witness said it was Christian. They believed in God, Jesus and the Holy Spirit. I suggested that most Christian churches would believe in these things. He said they believed Christians had to undergo steps to gain perfection. Noting that these comments did not cast light on the religion of his church I asked to which denomination it belonged. He said it was Christian Pentecostal. I put to him that if the Applicant had converted to this Pentecostal church the previous year this indicated he had not been a Pentecostalist before this. He agreed this was correct.
  45. At the adviser’s suggestion I asked the witness whether the Applicant had separated from his wife at the time he had first met him. He said they were not completely separated but were having problems. The adviser suggested that, on this basis, the meeting might have taken place in about December 2010.
  46. The Tribunal also heard evidence from [Pastor A] who said the first witness was his nephew. He had first met the Applicant when he attended his church, [Church 1]. Asked when this happened he said it was in 2011. The Applicant had attended evening service, conducted in English and Spanish.
  47. Asked if the Applicant had become a member of his church the witness said he had not. He attended for only one month. Asked if the Applicant had converted to his religion the witness said it was not a religion but a faith that Jesus Christ is the Saviour and Lord. I asked if he meant this was not a religion. He said there are many religions in the world. Asked about his own church he said it is Christian and belonged to the Assemblies of God. Asked again he repeated that it belonged to the Christian church.
  48. I put to the Applicant that among the information before the Tribunal there was information which had been discussed with him during the three sessions of the hearing and included the information from his ex-wife regarding the PRE and the certificate from the Ministry of Justice showing he had no criminal record, to indicate that he was not opposed to the government of Cuba and had never expressed such an adverse opinion, that he was never a member of the Pentecostal church in Cuba and that he was never harmed for such a reason. He confirmed that he understood this. I explained to him that the information was important for the decision in his case because if I accepted it this would lead me to believe he would not be harmed for these reasons if he returned to Cuba and would not suffer harm through being prevented from expressing his opinion or his religion. This would lead to a conclusion that he would not suffer persecution and was not a refugee, and that the decision to refuse the visa should be affirmed. Asked if he understood the importance of the information he said he did, adding that he would be jailed or made to disappear if he returned to Cuba.
  49. I invited the Applicant to comment on the information or respond to it in any way he wished, explaining that he could do so immediately, at an adjourned session of the hearing or in writing, with further time for these purposes if required. After a brief adjournment to allow him to discuss this matter with his adviser he indicated that he wished to respond at once. He made the following points:
  50. Asked if there was anything he wished to add the Applicant asked again that his claims be considered carefully.
  51. The adviser submitted that:
  52. The adviser submitted a further document, from Global Ministries, an international Christian organisation. This stated that the Christian Pentecostal church in Cuba is a grassroots church established in 1956 by Puerto Rican missionaries. He confirmed that this report states that the Church has grown from 42 congregations in the 1980s to 191 congregations attended by 49 ordained ministers, 40 licensed ministers, 87 preachers and 108 lay workers, with a total membership of approximately 15,000 people scattered throughout Cuba. He noted that the United States State Department’s report on International Human Rights Practices in Cuba states that some 60 per cent of practising Christians are Catholics. The Global Ministries report demonstrated the rapid growth of Pentecostal churches throughout the world.
  53. Noting in this context that a report by the World Council of Churches listing the membership of the Cuban Council of Churches includes the Christian Pentecostal Church together with a number of other Pentecostal churches, I asked the Applicant to which Pentecostal church in Cuba he had belonged. He said that in Trinidad where he lived he only attended house churches in secret.

Further submissions

Independent country information

Freedom of movement

  1. The United States State Department’s 2010 Report on International Human Rights Practices for Cuba (http://www.state.gov/j/drl/rls/hrrpt/2010/wha/154501.htm) states, in part:
...There are severe restrictions on freedom of movement within the country, on foreign travel, and on migration with the right of return.
The government tightly restricted foreign and domestic travel and limited internal migration from rural areas to Havana. Some dissidents reported that they were prevented from leaving their home provinces or detained by authorities and returned.
Although the constitution allows all citizens to travel anywhere within the country, changes of residence were heavily restricted. The local housing commission and provincial government authorities must authorize any change of residence. Anyone living in a location illegally may be fined and sent back to their place of residence. While the regulation was in effect nationwide, it was applied most frequently in Havana. Thousands of people lived in Havana illegally and without access to food rations or local identification cards. There were cases where police had threatened to prosecute for "dangerousness" anyone who returned to Havana after having been expelled.
The government restricted both migration and temporary foreign travel, by requiring exit permits and forcing would-be migrants to forfeit most of their belongings, including houses. The government allowed the majority of persons who qualified for immigrant or refugee status in other countries to depart. However, at least 300 citizens who had received foreign travel documents were denied exit permits during the year. Persons routinely denied exit permits included medical personnel, men of military age, former military or security personnel, and members of the opposition. The government requires university graduates to perform social service work for periods that run for up to five years, during which they are not allowed to leave the country.
The government denied exit permits for several years to relatives of individuals who migrated illegally (for example, merchant seamen and sports figures who defected while out of the country). The government frequently withheld exit visas from dissidents.
Juan Juan Almeida, son of deceased leader of the Cuban Revolution Juan Almeida Bosque, was repeatedly denied an exit permit to seek medical treatment. Early in the year, he launched a blog featuring the stories of others who had been denied exit permits, and in June he began a hunger strike to demand the right to leave. In August Cardinal Ortega intervened, and the government let Almeida depart.
The law permits authorities to bar an individual from a certain area, or to restrict an individual to a certain area, for a period of one to 10 years. Under this provision, authorities may internally exile any person whose presence in a given location is considered "socially dangerous."
Those seeking to migrate legally alleged they also faced police interrogation, fines, house searches, harassment, and intimidation by the government, including involuntary dismissal from employment. Government employees who applied to migrate legally to the United States sometimes were fired from their jobs when their plans became known.
Fees for medical exams, exit permissions, passport costs, and airport taxes are payable only in hard currency and amounted to approximately 630 convertible pesos (approximately $680) for an adult, or nearly three years' salary. These fees represented a significant hardship, particularly for migrants who had been forced from their jobs and had no income. At year's end some would-be migrants were unable to leave the country because of their inability to pay exit fees. Authorities dispossessed migrants and their families of their homes and most of their belongings before permitting them to leave the country.
The law provides for imprisonment of up to three years or a fine of 300 to 1,000 pesos (approximately $11 to $38) for unauthorized departures by boat or raft. In practice, however, most were detained for no more than two to three weeks and given a fine. The government sometimes applied a law on human smuggling to would-be migrants charged with organizing or promoting illegal exits. The law provides for imprisonment from two to five years for those who organize, promote, or incite illegal exit from national territory. The CCDHRN estimated that at year's end approximately 300 citizens had been fined, were awaiting charges, or were serving sentences on smuggling charges. Jail terms were more common for persons attempting to flee to the United States through the Guantanamo U.S. Naval Base. Under the terms of the 1994 U.S. Cuba Migration Accord, the government agreed not to prosecute or retaliate against migrants returned from international or US. waters, or from the U.S. Naval Station at Guantanamo, after attempting to emigrate illegally if they had not committed a separate criminal offense. However, in practice some would-be migrants experienced harassment and discrimination such as fines, expulsion from school, and job loss.
The government generally refused to accept nationals returned from U.S. territory beyond the limits of the Migration Accord.
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Freedom of religion

  1. The United States State Department’s most recent International Religious Freedom report for Cuba (July-December 2010) states, in part:
The constitution protects religious freedom; however, in law and practice, the government places restrictions on freedom of religion.
The government's respect for religious freedom in law and in practice improved during the reporting period, although significant restrictions remained in place. Most religious groups continued to report increased ability to cultivate new members, hold religious activities, and conduct charitable and community service projects, while at the same time reporting fewer restrictions on politically sensitive expression, importation of religious materials, and travel. Religious groups also reported that it was easier to obtain government permission to maintain and repair existing places of worship and other buildings, although obtaining permission for construction of new buildings remained difficult. Some members of religious organizations, particularly of churches that were not officially recognized, reported that the government harassed them through regular surveillance and occasional detentions, among other means. In a significant development, the government invited Cuban Catholic Cardinal Jaime Ortega to discuss the release of political prisoners, which by the end of the reporting period had resulted in more than 40 releases.
There were no reports of societal abuses or discrimination based on religious affiliation, belief, or practice.
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Section I. Religious Demography
The country has an area of 68,888 square miles and a population of 11.5 million. There was no independent authoritative source on the size or composition of religious institutions and their membership. The Roman Catholic Church estimates that 60 to 70 percent of the population is Catholic. Membership in Protestant churches is estimated at 5 percent of the population and includes Baptists, Pentecostals, Jehovah's Witnesses, Seventh-day Adventists, Methodists, Presbyterians, Anglicans, Lutherans, and the Religious Society of Friends (Quakers), among others. Other groups include Greek Orthodox, Russian Orthodox, Muslims, Jews, Buddhists, Bahais, and members of The Church of Jesus Christ of Latter-day Saints (Mormons).
Some sources estimate that as much as 80 percent of the population consults with practitioners of religions with roots in West Africa and the Congo River basin, known as Santería. These religious practices are commonly intermingled with Catholicism, and some even require Catholic baptism for full initiation, making it difficult to estimate accurately total membership of these syncretistic groups.
The Cuban Council of Churches (CCC) is an officially sanctioned umbrella organization that includes 27 religious organizations as full members, eight associate members, two with observer status, and 12 interfaith movements. The CCC is structured into six "zones" across the country and, according to its leadership, represents more than 100,000 Christians. Members elect the CCC leadership directly. Membership in the CCC is voluntary, and other officially recognized groups, including the Catholic Church and the small Jewish and Muslim communities, do not belong.
Catholic Church officials estimated that its membership was seven to eight million persons but that only 4 to 5 percent of baptized Catholics regularly attended Mass, while membership in Protestant churches was estimated at 600,000 to 800,000. Baptists, represented in four different conventions, and Pentecostal churches, particularly the Assemblies of God, are probably the largest Protestant denominations. The Assemblies of God reported more than 100,000 members; Jehovah's Witnesses reported approximately 92,000 members; Seventh-day Adventists and Methodists each estimated 30,000; Anglicans, 22,000; Presbyterians, 15,000; Quakers, 300; and Mormons, 50. The Mormons meet in Havana in space rented from another church. The Jewish community has 1,500 members; 1,200 reside in Havana. Most Protestant churches reported steady growth, including significant increases in the number of Pentecostals.
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Legal/Policy Framework
The constitution protects religious freedom; however, in law and practice, the government places restrictions on freedom of religion.
The 1992 constitution abolished atheism as the state creed, declared the country to be a secular state, and provided for the separation of church and state. The government does not officially favor any particular religion or church. The government's main interaction with religious groups is through the Office of Religious Affairs of the Cuban Communist Party. The office is the government's official liaison with religious groups.
The government requires religious groups to apply to the Ministry of Justice for official recognition, without which they cannot operate legally. The application procedure requires groups to identify the location of their activities and their source of funding. The ministry must also certify that they are not duplicating the activities of a previously recognized organization. Once received, official recognition allows church officials to travel abroad, receive foreign visitors, and hold meetings in approved locations. Members of religious groups that have not been recognized are subject to the same restrictions on travel and assembly as all other citizens. The government rarely interfered with unrecognized religious groups, but their meetings were technically illegal and thus subject to state intervention. Although neither The Church of Jesus Christ of Latter-day Saints nor the Jehovah's Witnesses were officially recognized, they were permitted to conduct most activities of recognized religious groups, including receiving foreign visitors and sending representatives abroad.
The CCC has no legal role in the formal recognition process; however, it plays an influential advisery role, providing information and recommendations about applicants to the Ministry of Justice and the Office of Religious Affairs. New Protestant denominations that wish to begin working in the country frequently seek an established church, already a member of the CCC, to act as a sponsor and help with the formal recognition procedures and with the membership process for the CCC.
The government also requires that recognized churches seek approval for each proposed meeting location through a separate registration process. The government permitted the use of private homes for religious purposes, an approach that many religious organizations employed to circumvent the strict restrictions on new buildings. In addition to the numerous regulations that applied to all religious groups--the disclosure of financial information; association with any foreign organization; and inspections of properties, publications, and attendance records--"house churches" were subject to additional regulations that limited hours of use and restricted permissible locations. Estimates on the total number of house churches, legal or not, varied significantly, from just under 2,000 to as many as 10,000, most of them unregistered and therefore illegal. Many religious leaders reported that they sought to register only a small percentage of house churches, citing the difficulty of the process and the possibility of denial. Nonetheless, the vast majority of religious leaders reported that unregistered house churches held services without significant interference from the government.
Although the law allows the construction of new houses of worship, the government rarely granted authorization. Most religious leaders noted that during the reporting period, the government frequently gave permission to repair or restore existing churches, allowing significant expansion of some structures and in some cases allowing essentially new buildings to be constructed on the foundations of the old. During the reporting period, many churches were expanded or repaired.
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In general, religious groups reported no problems conducting their services. Many religious organizations reported a significant increase in membership as well as a revival in interest in religion, especially among the young. Most churches reported increased participation in religious instruction for children because government schools no longer scheduled competing activities on Saturdays or Sundays. The leadership of Jehovah's Witnesses and Seventh-day Adventists stated that mistreatment and job discrimination that were particularly harsh in the past were now rare and confined to isolated cases and that their members were usually exempted from political activities at school. Seventh-day Adventist leaders stated that their members usually were excused from work on Saturdays. Both groups stated that discrimination and harassment decreased.
Most religious groups reported fewer restrictions on politically sensitive expression. Some Catholic parishes offered prayers for political prisoners, and church officials, including Cardinal Ortega, openly criticized the government on some matters. Many religious leaders stated that they discussed publicly their biblical interpretations of societal issues such as poverty and homosexuality.
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Restrictions on Religious Freedom
The government's respect for religious freedom in law and in practice improved during the reporting period, although significant restrictions remained in place. Generally, more-established groups and those associated with the CCC reported greater ability to conduct their activities without government interference or harassment. Despite these reports religious groups were no exception to the government's generalized efforts to monitor all civic activities, and the government often resorted to surveillance, infiltration, and harassment of those under suspicion of opposition activities.
Early in the year a participant in a conference made a clandestine video of a speech by Caridad Diego, head of the Office of Religious Affairs, which subsequently was posted on the Internet. In the speech Diego stated that the government had confiscated homes and places of worship from leaders of a number of unregistered religious movements and had seized religious literature that allegedly had not "entered the country via the appropriate channels."
In the eastern part of the country, state-organized mobs harassed political opposition figures who were on their way to Mass. Police and government-organized mobs continued to harass the family of Orlando Zapata Tamayo, a political prisoner who died in February following a prolonged hunger strike. Zapata's mother, Reina Luisa Tamayo, relatives, and supporters chanted antigovernment slogans as they made their way from her house to the nearby church to attend Mass and visit Zapata's grave. Mobs and police gathered along the route, chanting insults and pro government slogans, and on several occasions prevented Tamayo from reaching the church.
Several religious groups viewed the regulations governing the establishment of house churches as overly restrictive and cumbersome. Most groups indicated that applications either eventually were approved (although the wait could be as long as two to three years) or they received no response, while a minority reported that their applications were denied. Groups generally reported that they continued to use unregistered house churches with little or no interference from the government.
Most religious leaders reported that they exercised self-censorship in what they preached and discussed during services. Although they reported fears that direct or indirect criticism of the government could result in problems with state security, most could not cite specific examples of intimidation or harassment resulting from what they preached or said. Some prominent religious leaders were openly critical of the government, including the Catholic cardinal, whose criticisms circulated domestically in Catholic print and electronic publications, and a group of Santería elders whose statement received significant coverage in the international media. During the reporting period, several less prominent religious leaders also occasionally publicly criticized the government. The government did not retaliate in these cases.
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Abuses of Religious Freedom
There were no reports of persons imprisoned or detained for specifically religious reasons. A few religious groups reported cases of members who alleged that the government targeted them for selected prosecution for common crimes because of their religious activities. The CCC denied this allegation and stated that it knew of no case where a person was imprisoned because of religious beliefs or activities.
On February 1, the Supreme Court in Havana affirmed the 2009 conviction of Pastor Omar Gude Pérez, a leader of the "Apostolic Reformation" (an association of independent nondenominational churches), for "illicit economic activity" (conducting business in the black market) and falsification of documents. Gude was serving a six-year sentence at the end of the reporting period. He maintained his innocence and claimed he was being persecuted for his religious activities. In June, Gude's wife reported that she was issued an eviction order from the couple's home and claimed that it was in reprisal for her husband's religious activities. The government had not carried out the eviction order by the end of the reporting period. Leaders of the Apostolic Reformation movement reported continued harassment and detention of church leaders throughout the country, with at least one other pastor serving prison time on charges of "illicit economic activity."
Improvements and Positive Developments in Respect for Religious Freedom
In general the majority of religious groups saw continued improvement in their ability to import religious materials, receive donations from overseas, and travel abroad to attend conferences and religious events. Various religious groups found it easier to bring in foreign religious workers, access the Internet, and restore houses of worship. In November construction was completed on the country's first new Catholic seminary in more than 50 years, located on the outskirts of Havana. President Castro and several other government officials attended the opening of the seminary.
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Section III. Status of Societal Respect for Religious Freedom
There were no reports of societal abuses or discrimination based on religious affiliation, belief, or practice. (http://www.state.gov/j/drl/rls/irf/2010_5/168209.htm)
  1. A 2010 report on religion in Cuba by the online news service Global Post notes the growth of the evangelical movement.
Over the past two decades, the number of evangelical Christians on the island (pop. 11 million) has soared from roughly 70,000 in 1991 to more than 800,000 today, according to Cuba’s Council of Churches. While the Catholic Church and Afro-Cuban traditions have also made large gains since religious persecutions eased in the 1980s, evangelical Christianity may be the communist-run country’s fastest-growing practice.
The spiritual revival has coincided with a long period of economic hardship that Cubans have faced since the demise of the Soviet Union and the abrupt loss of its generous subsidies. The crisis continues today, with the government announcing last month that it will lay off 500,000 state workers over the next six months.
Faced with shrinking state benefits and fading revolutionary zeal, many Cuban families have turned to churches to fill their economic and existential needs. The growth began in the early 1990s, a time when transportation networks were virtually frozen for lack of fuel and spare parts. Evangelical churches — often tiny congregations meeting in private homes — had the advantage of being local and easily accessible, said Marcial Hernandez, president of Cuba’s Council of Churches.
“Any crisis generates insecurity, and people take refuge in religion,” said Hernandez, who is also a Pentecostal minister.
“But there is something else happening here,” he continued. “People are looking for spiritual fulfillment — not only material. The evangelical faith is the future of this nation.”
In some cities in eastern Cuba like Moa and Baracoa, evangelicals make up 65 to 70 percent of the population, Hernandez said, reflecting the legacy of a strong missionary presence there. Evangelical Christianity has also made huge gains in poorer parts of Havana, where many rural migrants have arrived in recent years, and might find community and a sense of belonging at a local church.
A Pentecostal temple with capacity for 5,000 worshippers has already been approved for construction among the battered tenements of the Havana’s Alamar neighborhood, according to Hernandez, though church leaders are still raising money for the project.
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Today the island’s fastest-growing evangelical strain is Pentecostalism. It arrived in Cuba with American missionaries prior to Fidel Castro’s 1959 Revolution, then went dormant in the 1960s and 1970s when Soviet ideology and militant atheism reigned. Religious believers were routinely fired from their jobs and sent to labor camps for “re-education.”
In recent decades, as religious fervor has surged in Cuba, scholars say the appeal of Pentecostalism is so strong that many traditional Protestant denominations have increasingly assimilated its worship style, with vibrant music, passionate sermons and testimonials of personal salvation and miraculous healings.
Nadiesca Cisneros, 29, said she became a Christian as a teenager because she felt a "spiritual need to be close to God."
"I needed to know my life's purpose," she said. "And that purpose is serving God," she said. (http://www.globalpost.com/dispatch/cuba/101005/evangelical-christianity-pentecostal-church)
  1. At the hearing [in] January 2012 the adviser submitted a copy of the report by Christian Solidarity Worldwide on religious freedom in Cuba, to which he had referred in his oral submissions. The report makes reference to changes in the government’s relationship with religious groups over the preceding twelve months which had seen a new ongoing dialogue with the Catholic Church and the registration and legalisation of some house churches. Church leaders had, however, greeted these improvements with some skepticism and had urged caution. The report states, in part:
The government appears to have moved away from potentially higher profile forms of repression, such as threatening to shut down or destroy churches, and is now focusing on more targeted pressure on church leaders. Church leaders from the Roman Catholic Church and Protestant churches, both those belonging to and outside of the Cuban Council of Churches (CCC), report frequent visits from and meetings with state Security Agents and Cuban Communist Party (CCP) officials. These visits and meetings seem to have the objective of intimidating the church leaders and making them aware that they are under close surveillance. There is wide agreement among church leaders of all denominations that the situation differs significantly for the Apostolic Movement, which has been a target of direct and severe persecution.
Church leaders continue to complain about the authority granted to the Office of Religious Affairs, an arm of the Central Committee of the CCP, over all religious groups and associations. They object, virtually unanimously, to the Communist Party being given direct authority over all religious activities and business, rather than officially bringing these issues under government oversight. The consistently antagonistic relationship between the director of the Office of Religious Affairs, Caridad Diego, and the leadership of the various denominations has left religious communities with the impression that the office exists solely to monitor, hinder and restrict the activities of religious groups. Over the past year, the office has refused authorisation for a number of religious activities and, church leaders suspect, is also behind the authorities’ failure over the past year to grant exit visas to a number of church leaders who have never been denied permission to leave the country in the past.
  1. The report refers to an incident in which the congregation of the Independent Pentecostal Church in Managua, Havana, was being pressured by the authorities to dismantle its own church and to meet in smaller groups in houses. It was not clear that threatened demolition of the church had been carried out by the end of the reporting period. In a second reference to pressures placed on the Pentecostal church in Cuba the report notes the forcible eviction from his home of a Pentecostal pastor in June 2008.
  2. The report also notes that there are regular reports of the government preventing Cubans from exercising their right to worship, adding ‘In the vast majority of these cases the victims were Cuban men and women who are perceived by the government to be political activists.’
  3. The report by Global Ministries cited by the adviser at the hearing (http://globalministries.org/lac/projects/christian-pentecostal-church-of.html) states, in part:
The Christian Pentecostal Church of Cuba (ICPC) is a grassroots church established in 1956 by Puerto Rican missionaries. After the revolution, its founder left Cuba and the church reorganized under Cuban leadership. The church is presided over by Reverend Rafel Columbie, pastor of the congregation in Placetas. The ICPC has grown from 42 congregations in the 1980’s to 191 congregations attended by 49 ordained ministers, 40 licensed ministers, 87 preachers, and 108 lay workers. Its total membership is approximately 15,000 people and is scattered throughout Cuba.
Some of the ICPC priorities include:
The Christian Pentecostal Church of Cuba is a member of the Cuban Council of Churches (CIC), the Latin American Council of Churches (CLAI), and the Caribbean Conference of Churches (CCC). It is a long-standing partner of Global Ministries and has been an important window into Cuban society for US. and Canadian Christians.
  1. [In] January 2012 the Tribunal received English translations of the two Spanish-language media reports submitted by the Applicant. These are:

FINDINGS AND REASONS

  1. Although the Applicant’s passport is not among the materials before the Tribunal I accept, on the basis of his claims and in the absence of any information to the contrary, that he is a citizen of the Republic of Cuba.
  2. The Applicant claims to fear harm in Cuba for the Convention reasons of his political opinion adverse to the government and his Pentecostal Christian religion. He also suggests that he would be adversely regarded as likely to contaminate Cuban society, as a result of his having lived in a western country, and because he had applied for protection in Australia.
  3. The mere fact that a person claims fear of persecution for a particular reason does not establish either the genuineness of the asserted fear or that it is "well-founded" or that it is for the reason claimed. It remains for the applicant to satisfy the Tribunal that all of the statutory elements are made out: MIEA v Guo & Anor (1997) 191 CLR 559 at 596. Although the concept of onus of proof is not appropriate to administrative inquiries and decision-making (Yao-Jing Li v MIMA [1997] FCA 289; (1997) 74 FCR 275 at 288), the relevant facts of the individual case will have to be supplied by the applicant himself or herself, in as much detail as is necessary to enable the examiner to establish the relevant facts. A decision-maker is not required to make the applicant's case for him or her: Prasad v MJEA [1985] FCA 47; (1985) 6 FCR 155 at 169-70; Luu & Anor v Renevier [1989] FCA 518; (1989) 91 ALR 39 at 45. Nor is the Tribunal required to accept uncritically any and all the allegations made by an applicant: Randhawa v MIEA [1994] FCA 1253; (1994) 52 FCR 437 at451.

Political opinion

  1. The Applicant claims to have been a ‘counter-revolutionary’ who was opposed to the Cuban revolution and the government. He states that he is opposed the country’s communist dictatorship which denies human rights and arrests and imprisons those who speak against it. He claims he was denied the freedom to express this opinion freely without fear of being detained and ill-treated. Despite this he claims that he did express his opinion at various times, leading him to be arrested and punished in a number of ways, and that the police have a file on him because of this. He claims this record would lead him to be arrested and jailed for many years if he returned to Cuba, and that he might ‘disappear.’
  2. The Applicant’s claims about the way in which he expressed his political opinion are vague and inconsistent at a number of points. In the Statutory Declaration accompanying his protection visa application he states only that he ‘expressed his dislike of the political oppression which in Cuba but was careful to whom I expressed my opinions to as I lived in fear that I may be reported to the Cuban authorities for speaking against the government.’ He mentions having done so on only one occasion, as a result of which he was arrested. He does not give a date for this incident but claims that it occurred in Revolution Square, Havana, when he intervened as police were beating bystanders who were simply expressing their right to freedom of speech. He claims to have been detained for a day in a police cell, beaten and released with a heavy fine. He appeared to refer to this incident once again at the hearing, identifying it as having occurred in 1980 and adding the details that seventy police had thrown gas at him and that his injuries from the police beating required four stitches. He also suggested there had been another incident in which he was arrested. This was in 1978 or 1979 during a protest at a market over the shortage of meat. He joined in discussions with an anti-government group and was once more arrested, detained, beaten and fined. He confirmed as well that he had been arrested and detained in a third incident in 1982 (as he had stated in his Departmental interview)
  3. The Applicant claimed at the hearing that together with these alleged arrests in the late 1970s and early 1980s he had suffered further harm after he had expressed criticism of the Cuban government during a meeting with a nun while he was in [Country 5] in 2004. These remarks were overheard by Cuban security officials leading to a ban on further travel after he returned to Cuba. At a later point in the hearing he made further references to restrictions having been placed on his travel in 1990 but he gave no explanation as to why this had happened or how he had subsequently been able to leave the country for [Country 5] in 2004. When he was asked why this important and relevant information about mistreatment for the expression of his political opinion had not been mentioned by him previously he suggested that he had forgotten about it. Having considered this explanation however I do not find it convincing. I am not satisfied that such an incident occurred or that restrictions were ever placed on his movements as a result.
  4. When the Applicant was asked at the hearing why police would wish to arrest him now, when they had not arrested him again after 1982, he advanced a new claim to the effect that he was maintaining secret contact with members of his family who were political prisoners. When he was asked again about this, however, he suggested that the person in question was his uncle, that he was no longer a political prisoner and that he had been imprisoned before the revolution (i.e. more than fifty years ago) When he was asked how he knew the police wished to arrest him he suggested, variously, that many people in government and the secret police were talking about it in the street, that it was being spoken of by his former students who were children of the secret police, that he heard if from his brother who had been told by his mother and that friends had told him. As put to him, these are new claims and it is difficult to understand why, given their obvious significance and relevance for his case, he would not have mentioned them at an earlier point. Given their confused and generally implausible nature I am not satisfied that they are more than inventions adopted by the Applicant at the hearing.
  5. At the hearing I put to the Applicant that his claim that the Cuban police held records indicating he held a political opinion against the government seemed to be inconsistent with his ability to gain promotion in the army, to be appointed to the head of the army’s [sporting] team and to represent Cuba overseas, including for two years when he was teaching in [Country 5]. I also put to him that the claim was inconsistent with the certificate showing he had no criminal record and the fact, as indicated by his ex-wife, that he had been issued with a permit to reside outside the country (PRE) in an unusually brief period. His response to these points was to suggest that he was not the only person to receive a PRE and that the Cuban authorities wilfully disguised the fact that he had an adverse police record. He suggested that many people who are regarded as ‘model citizens’ in Cuba are immediately arrested and imprisoned when they return to the country.
  6. Having considered these explanations I am not satisfied that they are at all plausible. I accept that the Applicant’s ex-wife cannot be considered an authoritative source of information about Cuba’s system for the issue of PRE documents, and that even if the Applicant obtained his PRE within one month this does not necessarily demonstrate that he was regarded with particular favour by the authorities. However, the record of the Applicant’s achievements in Cuba, including his appointments, his overseas travel and the fact that he was permitted to leave the country to join his wife in Australia provides no basis for the claim that he was regarded as being in any way politically suspect, let alone a counter-revolutionary. I am satisfied that the certificate showing he had no criminal record should be taken at its face value, and I reject as quite implausible the claim that this could be issued despite the police holding adverse records of previous arrests and fines.
  7. Taking these matters together I am not satisfied that the Applicant was ever harmed for expressing a political opinion against the government while he was in Cuba or, for that matter, in [Country 5]. It follows that I do not accept that he has an adverse police record for such matters, or that he would suffer harm for such a reason if he were to return to Cuba. As I do not accept the credibility of his evidence about these matters, which form a central element of his claim to fear harm in Cuba, I find that this casts doubt over the credibility of his evidence as a whole.
  8. As noted, the Applicant also claims that, notwithstanding the alleged incidents in which he expressed his political opinion against the Cuban government and was punished for doing so, he was otherwise prevented from expressing his opinion by fear of the consequences.
  9. I note and accept that there is abundant country information documenting serious abuse of human rights by the Cuban government over many years. The information suggests that there has been some relaxation of controls in more recent times under the Presidency of Raul Castro but it is clear that Cubans are still denied many basic freedoms and rights. I also accept that in his protection visa application, his Departmental interview and the Tribunal hearing the Applicant has reiterated a view opposed to what he describes as Cuba’s communist dictatorship. He states in summary that he rejects its denial of a range of human rights and freedoms and, in particular, its repression of free speech.
  10. The only evidence the Tribunal has to support this claim is the Applicant’s own assertion of it. This fact in itself does not mean that the claim should be dismissed. However, against it the circumstances of the Applicant’s life in Cuba appear to reflect at least some degree of willingness to support the existing regime. During his years of military service he was promoted to the rank of [rank deleted: s.431(2)]. He was a member of [a sports club] for a lengthy period. He represented the Armed Forces in international military competitions against teams of other communist or socialist states on a number of occasions over several years. He worked for two years in [Country 5] as a [sporting] coach, a mission directly arranged by the Cuban government in which he was representing his country. He gained recognition for his services from local authorities. I am not satisfied that such active support for this aspect of the public life of his country, one in which the government and military were intimately involved, is at all reflective of a strong opinion opposed to the government or the system of government in general.
  11. In this context I also note that if the Applicant had genuinely been prevented from expressing a strong political opinion against the government because he feared he would be arrested and imprisoned for doing so, to the point where this constituted persecutory harm for him, it is difficult to understand why he would not have made any attempt to leave Cuba until after he married an Australian citizen in December 2009. I accept that the Cuban authorities have placed strong controls on the exit of its citizens for many years but the information before the Tribunal indicates that it is certainly not impossible for ordinary citizens to leave the country, whether by legal or illegal means. The Applicant does not claim to have taken any step whatsoever to explore this option. It is also difficult to understand why he would have made no attempt to find refuge in another country during the two years in which he was living in [Country 5], and I do not find plausible his explanation that he was under strict surveillance by Cuban security officials every hour of the day over this whole period.
  12. As put to the Applicant at the hearing, the two months delay between the issue of his Australian visa and his departure from Cuba, and the fifteen months delay between his arrival in Australia and the lodgement of his protection visa application, raise further questions about the genuineness of his claim to have feared harm in Cuba. I accept however that the former delay may be largely accounted for by his having to wait to receive his passport and airline tickets, while the latter delay may have resulted partly from the fact that he was unaware for some time of his exact immigration status as his ex-wife did not pass on documents sent to him by the Department. For these reasons I have placed no weight on these delays in considering his claim to have feared harm in Cuba.
  13. Having considered the information available to the Tribunal on this issue, together with my concerns about the reliability of the Applicant’s evidence in general, I am not satisfied that while he was living in Cuba he did in fact hold a political opinion strongly critical of the government which he was deterred from expressing openly by a fear that he would be punished for doing so. Nor, despite his reiterated assertions of this view, am I satisfied that he now genuinely holds a political opinion which is so adverse to the government of Cuba that he would be unable to express it without suffering harm if he were to return.
  14. To the extent that the Applicant may be suggesting that he has criticised the Cuban government since his arrival in Australia, I am not satisfied that there is anything in the information before the Tribunal to indicate that he has ever done so in a way which would have come to the attention of the authorities in Cuba or which would create a real chance that he would be harmed for such a reason if he were to return to Cuba.

Religion

  1. The Applicant claims that he was a member of a Pentecostalist church while he was in Cuba, that his church was regarded as being opposed to the government and that its members were forced to meet secretly in private houses. He claims to have suffered harm because of this religious affiliation when he was demoted in his work after police reported his church attendance to his employer.
  2. The Applicant’s evidence at the hearing on this issue was notably vague and inconsistent at many points. At the first session of the hearing he was unable to state which church he belonged to in Cuba, repeating that it was a Christian church and had no name as it met in private houses. It was not until the second session of the hearing that he identified it as a Pentecostal church, the first time this name has ever appeared in his claims. He gave clearly contradictory evidence about the presumably significant issue of whether he had ever been baptised into this church in Cuba. He gave a confused and implausible account of having attended meetings of the church while he was performing his military service. He offered conflicting versions of his claim to have been demoted for his religious attendance, suggesting that at one point that this was while he was a member of the Catholic Church and, later, that it was while he was a member of the Pentecostal church. He claimed, implausibly, that his regular and frequent attendance at Pentecostal church meetings was only detected on one occasion because the security police (stationed every few metres) would accept his word that this was not his destination. He also claimed, again implausibly, that the delay in his Pentecostal baptism in Australia was attributable to his difficulty in locating such a church.
  3. Taking these considerations together with my more general concerns about the reliability of the Applicant’s evidence I am not satisfied that he was ever a member of a Pentecostal church in Cuba, or that he ever suffered harm for such a reason.
  4. The Applicant has submitted evidence to indicate that he was baptised into [Church 2] in September 2011, after he had been placed in immigration detention. He also claims, supported by the evidence of the two witnesses at the hearing, that he was previously in contact with another church, known as [Church 1], in [suburb deleted: s. 431(2)]. The evidence of the witnesses was that he had not joined this church but had attended services there for about a month, and a supporting letter from one of the witnesses, [Pastor A] indicates that this occurred in April 2011. It is not entirely clear from the information before the Tribunal that either [Church 2] or [Church 1] can be said to be Pentecostal churches, and the evidence of the witnesses about the beliefs and theology of the latter church was curiously uninformative about such arguably important matters. I am however prepared to accept that both churches are Pentecostal in nature. I note in this context the evidence of the first witness that the fact that the Applicant had ‘converted’ to [Church 1] gives further weight to the conclusion that he had not been a Pentecostalist before then.
  5. On the basis of this evidence I am prepared to accept that the Applicant has become a member of a Pentecostal church since his arrival in Australia. I accept that he has done so otherwise than for the purpose of strengthening his claim to be a refugee, and that I am not required by s.91R(3) to disregard this conduct in considering his claim to fear persecution in Cuba.
  6. I accept that that the Cuban government applies certain restrictions on religious freedom, such as requiring official permission for foreign preachers to travel to Cuba to preach or for holding public processions. Restrictions are placed on building new church premise and, in some cases, pressure has been applied for the demolition of existing properties and confiscation of church property. There is scrutiny and monitoring of the meetings and activities of all churches and they are placed under the overall control of an organ of the Cuban Communist Party. There have been instances of harassment of individual church leaders, including those from Pentecostal churches. There is a clear intention reflected in the law that the interests of the Party are paramount and that they will take precedence over religion in the event of any conflict. However, as put to the Applicant at the hearing, I am not satisfied that the information before the Tribunal indicates that individuals are prevented from worshipping as members of Pentecostal or other churches. While the controls placed on religious practice may be regarded as objectionable I am not satisfied that they amount to a denial of the right of worship. In the particular case of the Pentecostal church I note that it forms part of the Cuban Council of Churches. Its membership has been growing rapidly in recent years. There is no evidence that its members are being forced to gather in secret or to hide their religious affiliation. Its meetings are conducted not only in houses but also in church buildings dedicated to the purpose. A 2010 report indicates that it has gained approval for the construction of a very large temple in a suburb of Havana, capable of seating 5,000 people.
  7. On the basis of this information I am not satisfied that the Applicant would be denied the right to practise his Pentecostal faith if he were to return to Cuba, that he would be forced to deny or hide his membership of the church or that he would be punished or harmed in any way because of that membership.

‘Contamination’ of Cuban society

  1. Finally, I note the Applicant’s claim that he would be at risk of harm from the authorities if he returned to Cuba because he would be seen as ‘(c)ontaminating the rest of Cuban society with my experience of how other people live and the type of free society, political freedom and rights that exist in Australia.’ He has advanced no evidence in support of this assertion and there is nothing in the independent country information available to the Tribunal which would indicate that he would suffer serious harm for this reason. Having considered this claim I am not satisfied that it is more than simple speculation.
  2. Nor am I satisfied, in this context, that there is anything to indicate that the Cuban authorities are aware that the Applicant has applied for protection as a refugee in Australia or that they would become aware of this fact if he returned there. I note that he has remained in Australia legally on a bridging visa and that there may be various different reasons as to why he has been placed on this visa, including ensuring his legal status in the country. I am not satisfied that the claim that the Applicant is at risk of harm in Cuba for such a reason, advanced by his then-adviser at the Departmental interview, is other than speculative.

Hearing-related issues

  1. In a brief submission received by the Tribunal [in] December 2011 following the first session of the hearing the Applicant’s then-advisor refers to a request by the Applicant that the same interpreter not be used for the next session ‘as he was unhappy with the interpreting of the person present at the hearing.’ No details are offered as to the reasons for the Applicant’s lack of satisfaction. I note that the interpreter in question holds NAATI Level 3 accreditation. The Applicant did not indicate at any point during this hearing session that he was having difficulty with the interpretation or that he was in any way unsatisfied with the interpreter.
  2. The second and third sessions of the hearing were assisted by a different interpreter, also accredited at NAATI Level 3. After the second session had been underway for some time she drew my attention to what she believed was a failure of the Applicant to understand fully some of the questions put to him. I asked the Applicant, as I had asked him at the beginning of the first session of the hearing, to ensure that if he did not understand any question he should seek clarification. I also asked the interpreter to be alert for any sign of such a problem and to advise me accordingly as we continued. The Applicant and the advisor indicated that that they believed this was a satisfactory basis on which to proceed.
  3. Having had the opportunity to observe the Applicant over the three sessions of the hearing, totalling some seven hours, I am satisfied that he was not prevented from understanding questions put to him or responding to them by any problems in the interpretation service provided. On a number of occasions he asked for questions to be clarified and this was given to him, using different or simplified wording. Some complications were caused by his readiness to interrupt, a habit which seemed quite resistant to requests for him to wait until the interpreter or I had finished speaking, together with his habit of repeating the same piece of information many times in different ways. These problems were largely responsible for the extended length of the hearing but I am satisfied that they did not prevent him from participating effectively in it and articulating his claims.

Summary

  1. In the light of all the information before the Tribunal, considered individually and cumulatively, I am not satisfied there is a real chance that the Applicant would suffer serious harm amounting to persecution in Cuba because of his religion or his real or imputed political opinion. Nor am I satisfied that he would suffer serious harm as a person who was seen as ‘contaminating society’ through his exposure to a western country such as Australia or because he would be seen as having applied for protection in Australia. He does not claim to fear harm for any other reason in Cuba and no other reason is apparent on the face of the information before the Tribunal.
  2. I am not satisfied that the Applicant has a well-founded fear of persecution because of his religion, his political opinion or for any other Convention reason should he return to Cuba, now or in the reasonably foreseeable future, and I am not satisfied that he is a refugee.

CONCLUSIONS

  1. The Tribunal is not satisfied that the Applicant is a person to whom Australia has protection obligations under the Refugees Convention. Therefore the Applicant does not satisfy the criterion set out in s.36(2)(a) for a protection visa.

DECISION

  1. The Tribunal affirms the decision not to grant the Applicant a Protection (Class XA) visa.

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URL: http://www.austlii.edu.au/au/cases/cth/RRTA/2012/ 349 .html