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Date: 20060516

Docket: IMM-3954-05

Citation: 2006 FC 603

OTTAWA, ONTARIO, May 16, 2006

PRESENT:        The Honourable Mr. Justice von Finckenstein









[1]                The Applicant is an HIV-positive homosexual man from Mexico who knew from an early age that he was attracted to men. He became an alcoholic in order to deal with covering up his homosexuality in a machista and homophobic society. He tested HIV positive in 1995.

[2]                He was involved in a relationship with Jaime Razon beginning in September 1994. Once they started living together, Jaime's parents resented the relationship as the Applicant was gay and HIV-positive.

[3]                The Applicant believes Jaime's father hired the Federal Police to harass him. In April 2001, he was followed into the washroom at a mall and threatened. In August 2001, after he had ended the relationship with Jaime, a black Spirit car, the model usually used by the Federal Police, intercepted him and four men got out of the car. As the Applicant drove away, they yelled at him and shot at his car.

[4]                He went to London, England in November 2001 and attempted to get a student visa - this was denied. He then returned to Mexico and went into hiding for three days until he left for Canada. He arrived in Canada on December 7, 2001 and filed his application on July 5, 2002 after finding out he could make a refugee claim on the basis of sexual orientation or HIV status.


[5]                The Immigration and Refugee Board (the Board) accepted the Applicant's identity, and his assertions of being homosexual and HIV-positive. However, it denied his claim on the basis that he failed to establish a lack of state protection. No evidence was presented that the police actually harassed him or that state protection was not available, as it was never sought.


[6]                It is well established that the standard of review on the adequacy of state protection is patent unreasonableness (see Malik v. Canada(Minister of Citizenship and Immigration), 2005 FC 1189 and O.O.M.R. v. Canada(Minister of Citizenship and Immigration), 2005 FC 1618).


[7]                The Applicant presents the following issues.

1. Did the Board err in failing to address the Applicant's fear of persecution due to being homosexual and HIV-positive?

2.    Did the Board err by refusing to admit post-hearing evidence?

3. Did the Board err by presuming state protection without referencing the documentary evidence?

4. Did the Board err in failing to consider the Applicant's right to freedom of expression as a basis for his refugee claim?


[8]                The Applicant submits the Board must consider each basis for a claim. The Applicant submitted numerous times in his PIF narrative that he fears persecution in Mexico due to being gay and being HIV-positive. Yet the Board did not address this issue but merely assessed the Applicant's fear of being attacked by police officers or others acting on behalf of Jaime's father. The Applicant points to J.O. v. Canada(Minister of Citizenship and Immigration) (2004), 41 Imm. L.R. (3d) 305, 2004 FC 1189, where the Court allowed the judicial review as the Board did not address the documentary evidence discussing discrimination against, and stigmatisation of, people with HIV. The Applicant submits this case is even more deficient as the Board failed to even acknowledge the issue of persecution due to being HIV-positive. Furthermore, when determining the adequacy of state protection, the Board ignored documentary evidence showing that such protection was missing. In addition, it refused without granting reasons to consider a 2004 US Department of State report (DOS), issued post-hearing, and that was directly relevant to the case.

[9]                It strikes me that the Applicant misunderstands the decision of the Board. The Board generally found the Applicant to be credible and accepted his testimony regarding his homosexuality, his HIV status and his fears regarding persecution and discrimination by virtue of these two facts. It just did not accept his allegation of the lack of state protection regarding his being gay, his HIV status or the pursuit by thugs (allegedly Federal Police hired or urged on by Jaime's father).

[10]            Therefore, as the Board stated, this case really turns on the availability of state protection.

[11]            The record reveals that the Applicant has never sought state protection with respect to any of the three grounds of asserted persecution. He has lived for six years in Mexico as an HIV-positive homosexual, has lived together with his partner, and has been able to obtain the medicine required to treat his HIV condition. He even went so far as to testify that he "always had ...a good...standard of life". [T.R. p. 38]

[12]            The documentary evidence, including the 2004 DOS report that was not considered, is not definitive on the issue of state protection. It points to discrimination of homosexuals and acts of persecution, but it also points to government efforts to fix the situation and to the efforts of NGOs trying to improve the treatment of homosexuals.

[13]            The Board, as the weigher of facts, makes the decision on the basis of documents and testimony. Even if it would have reached a different decision on the basis of same evidence, this Court will not intervene unless such decision is patently unreasonable. It is well established that the protection does not have to be perfect, but police and civil authority must be in place and make serious efforts to protect the citizenry. Here, I cannot find anything patently unreasonable in the Board's decision in light of the testimony and the documentary evidence.

[14]            As to the 2004 DOS report, it is well established that the Board must consider the following factors when deciding whether to admit post-hearing documents:

1. the document's relevance and probative value;

2. any new evidence it brings to the proceedings; and

3. whether the party, with reasonable effort, could have provided the document as required by Rule 29.

[15]            Although the 2004 DOS report constitutes a source of high probative value, its content on this point are far from definitive. Like the rest of the documentary evidence, it paints both sides of the coin. Therefore, the Board was within its rights to refuse to admit it as it would not bring further relevant evidence before it.

[16]            The only remaining question therefore is the Applicant's contention that the Board erred in failing to consider the Applicant's right to freedom of expression as a basis for his refugee claim. Specifically the Applicant submits the Board erred in failing to consider the Applicant's right to freedom of expression. The Applicant states he has transformed his life in Canada by becoming an AIDS/HIV activist and it would be impossible for him to continue to do this in Mexico. The Applicant relies on Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 that held an activist association which goes to one's inherent dignity, falls under the definition of being part of a particular social group. The Board failed to consider whether the Applicant could be considered a refugee sur place based on the right to live openly and promote human rights which are fundamental to his dignity.

[17]            This issue was not raised in the Applicant's PIF. There was also no evidence before the Board that the Applicant is an activist in Canada in a way that would attract public attention nor that his status as an activist would place him at risk in Mexico. His volunteer efforts have been that of a peer counsellor. No evidence has been provided to believe that role in Canada has created a sur place refugee claim. Although it appears the Applicant takes great pride and feels his activities are personally rewarding, that should not be the basis for granting refugee protection.

[18]            Accordingly this application cannot succeed.


THIS COURT ORDERS that this application be dismissed.

"Konrad W. von Finckenstein"




DOCKET:                                           IMM-3954-05

STYLE OF CAUSE:                           VICTOR INIGO CONTRERAS





PLACE OF HEARING:                     Toronto, Ontario

DATE OF HEARING:                       May 9, 2006


ORDER AND ORDER:                    von Finckenstein, J.

DATED:                                              May 16, 2006              


Raoul Boulakia


Kristina Dragaitis



Raoul Boulakia

Barrister & Solicitor

Toronto, Ontario


John H. Sims, Q.C.

Deputy Attorney General of Canada


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