Date: 20021206
Docket: IMM-5632-01
Neutral citation: 2002 FCT 1269
BETWEEN:
MARIA ROSA PRADO DE ALBARRACIN
JORGE VICTOR ALBARRACIN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] In December 1995, Jorge Albarracin, a citizen of Argentina, was laid off after twenty-five years of employment with the same pharmacy chain in Mendoza. According to the applicant, his relations with his employer deteriorated as of 1993 when he was first elected union delegate and was involved in difficult negotiations with management on behalf of his fellow workers.
[2] The employer's letter of dismissal states that Mr. Albarracin was laid off due to lack of work. He received a severance package. The applicant states that he was wrongfully dismissed because of his employer's discontent with his union activities.
[3] The applicant contends that he was unable to find substantial work in the four years prior to his leaving Argentina because of his notoriety as a union activist. He acknowledges his age and lack of experience in other fields as factors which contributed to his inability to find permanent work.
[4] In March 2000, the applicant sought refugee status in Canada on the basis of a well-founded fear of persecution in Argentina because of his political opinions as a member of the union. His spouse is the second applicant and bases her claim on that of her husband.
[5] The panel determined that the applicants were not Convention refugees in the absence of any nexus between the harm they allege and any of the five grounds in the definition of Convention refugee. On the basis of its review of the country documentary evidence, the panel concluded that the applicants' "... true motivation in leaving Argentina is because of the poor economic prospects in a country that is mired in economic debt, lack of employment or advancement opportunities, and not for any Convention reason."
[6] In reaching this conclusion, the panel was also required to disclose in its reasons why the generic documentary evidence was preferred over the applicants' testimony.
[7] In this application for judicial review, the applicants argue principally that the panel's decision does not provide clear and sufficient reasons for not accepting the applicants' testimony.
[8] In referring to the employer's letter of dismissal, dated December 21, 1995, and the letter of employment certification, dated April 7, 1997, the panel noted that Mr. Albarracin:
... was let go in 1995 because there was no work for him. Given the economic climate in Argentina during this period and currently, the panel accepts this reason as a logical and credible reason for his dismissal. Also, the pharmacy has even provided certification for Mr. Albarracin at his place of employment. The claimant worked in the same pharmacy since 1970, for 25 years. [Emphasis added.]
Implicit in the portion of the passage that I have underlined is the panel's rejection of Mr. Albarracin's interpretation of his dismissal as being related to his union activities.
[9] The panel questioned Mr. Albarracin concerning his interpretation of the cause of his dismissal against the background of Argentina's economic conditions:
... PRESIDING MEMBER: So the documentary evidence the Argentinean society has many, many unions and that there's nothing in here about union violence in the documentary evidence before us, between the government and the unions and that in fact the laws enshrine the rights of people to belong to unions in Argentina. The climate you suggest is pre-1983. The objective documentary evidence before us today does not support your allegations in this regard. What are your thoughts on that? You can't be discriminated against in Argentina because you belong to a union. You can't get fired for belonging to a union and you can't then spend the next four years looking for jobs and have everybody turn you down because you one time belonged to a union.
[MR. ALBARRACIN]: This happened.
PRESIDING MEMBER: To you?
[MR. ALBARRACIN]: Yes.
[10] It might have been preferable for the panel to treat its appreciation of Mr. Albarracin's testimony at somewhat greater length, even if the transcript itself is less than twenty pages. However, in my view, the brief factual analysis in the decision is sufficiently clear to disclose that the panel preferred the employer's stated reason for the dismissal over Mr. Albarracin's as being more consistent with the documentary evidence concerning the economic conditions in Argentina in 1995.
[11] The panel's analysis was not all that different from the submissions made by the applicants' representative at the end of the refugee hearing.
[12] Mr. Albarracin had acknowledged that he had not been directly targeted by the government for his union activities.
[13] The presiding member challenged the representative to establish a nexus and to show that the applicant's inability to find work constituted tacit state approval for his mistreatment on account of his union activities.
[14] The representative's response, without any significant reference to Mr. Albarracin's union involvement, was an attempt to raise his inability to obtain secure employment to the level of persecution:
... I agree completely that he was not directly denied his right to earn his livelihood however, given the circumstances that are in place in Argentina, he was in fact pushed to a situation where he wouldn't be able to find a job, not just in his own field. But in general, as he testified, he was trying to obtain jobs as helper of construction worker or painter. All what he got was very unstable work.
My request and my submission is for the panel to consider that this insecure work that Mr. Albarracin would be able to obtain in Argentina could amount to persecution, particularly because he had held a job for 25 years already and basically, those would be my argument with regard to the nexus in this case.
[15] There is no evidence in this case of "an extreme level" of deprivation by the state of an ability to earn a living such as to be tantamount to persecution: Espinoza v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 721 (QL) (T.D.), at paragraph 6, and James C. Hathaway, The Law of Refugee Status, (Toronto: Butterworths, 1991), at 111.
[16] Despite the able presentation of the applicants' counsel in this proceeding, I have not been able to conclude that the panel's brief factual reasons warrant the Court's intervention. The reasons for decision reflect the exchange between the panel and the applicants during their testimony and their representative's oral submissions. The written reasons are sufficiently clear, in my opinion, to understand the panel's decision not to accept Mr. Albarracin's interpretation of why he was dismissed from his employment and to conclude that he was a victim of the prevailing economic conditions in Argentina.
[17] The suggestion in the applicants' written submissions, not vigorously pursued at the hearing, that the panel's reliance on the country evidence demonstrates a reasonable apprehension of bias, is not justified on the record before me.
[18] For these reasons, this application for judicial review must be dismissed. I agree with both parties that there is no serious question for certification.
"Allan Lutfy"
A.C.J.
Ottawa, Ontario
December 6, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5632-01
STYLE OF CAUSE: MARIA ROSA PRADO DE ALBARRACIN,
JORGE VICTOR ALBARRACIN
Applicants
v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO
DATE OF HEARING: NOVEMBER 6, 2002
REASONS FOR ORDER : THE ASSOCIATE CHIEF JUSTICE
DATED: DECEMBER 6, 2002
APPEARANCES: Alvaro J. Carol
For plaintiff / applicant
Rhonda Marquis
For defendant / respondent
SOLICITORS OF RECORD:
Alvaro J. Carol
120 Eglinton Avenue East, Suite1000
Toronto, Ontario
M4P 1E2
For plaintiff/applicant
Rhonda Marquis
Department of Justice
The Exchange Tower, 2 First Canadian Place
130 King St. West, Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
For defendant/ respondent