Date: 20021002
Docket: IMM-4699-01
Neutral citation: 2000 FCT 1032
BETWEEN:
CHRISTIAN JUAN RIGHI,
JORGE ALBERTO GARRO,
ALEXIS MAURICIO GARRO,
ELENA RITA CARRIZO DE GARRO,
ESTEFANIA LOURDES GARRO,
Applicants,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
[1] The applicants, citizens of Argentina, seek judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (CRDD), which determined that the applicants are not Convention refugees.
[2] Christian Juan Righi (Righi) is the principal applicant and he alleges a well founded fear of persecution on the basis of his sexual orientation as a homosexual. Jorge Alberto Garro (Garro) is Righi's stepfather and he claims a well founded fear of persecution on the basis of being a member of a social group, specifically a union, as well as a family member of a male homosexual. Elena De Garro is Righi's mother; Alexis Garro is his half-brother, and Estefania De Garro is his minor half-sister. Their claims for refugee status are based on Righi's alleged persecution as a male homosexual as well as on Garro's alleged persecution as a member of a union. All of the applicants lived in Mendoza before leaving Argentina.
[3] Regarding Garro's claim as a union member, the CRDD found that he did not provide persuasive evidence that he could not get help, from the police or the union, regarding the allegations that the police targeted him as a result of demonstrating. Rather, it accepted the objective documentary evidence to the effect that union members are able to demonstrate and freely express their labour rights in Argentina. The CRDD found his evidence lacking credibility. No issue is taken with respect to the conclusion of the CRDD regarding Garro's claim based on being a member of a union.
[4] The CRDD found that there was no credible or trustworthy evidence before it upon which it could reach a favourable decision regarding the applicants and further found that they had embellished and fabricated their claims in an effort to stay in Canada. The CRDD accepted that the applicant Righi was a homosexual but determined that he had an internal flight alternative (IFA).
[5] A claimant cannot be a Convention refugee if there is an IFA. The determination of whether or not there is an IFA is integral to the determination of whether or not a claimant is a Convention refugee. The question must be expressly raised at the hearing by the refugee hearing officer or the Board and the claimant afforded the opportunity to address it with evidence and argument. The Board must be satisfied, on a balance of probabilities, that there is no serious possibility of the claimant being persecuted in the IFA and that, in all the circumstances, including circumstances particular to the claimant, conditions in the IFA are such that it would not be unreasonable for the claimant to seek refuge there: Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (C.A.)
[6] The question is whether, given the persecution in the claimant's part of the country, it is objectively reasonable to expect him or her to seek safety in a different part of that country before seeking a haven in Canada or elsewhere. This is an objective test and the onus of proof rests on the claimant. An IFA cannot be speculative or theoretical only; it must be a realistic, attainable option. The alternative place of safety must be realistically accessible to the claimant. If it is objectively reasonable to live in these places, without fear of persecution, then an IFA exists and the claimant is not a refugee. It is not a matter of a claimant's convenience or the attractiveness of the IFA, but whether one should be expected to make do in that location, before travelling half-way around the world to seek a safe haven in another country: Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (C.A.)
[7] The CRDD concluded that the applicants had an IFA in Buenos Aires. It is useful to review that part of the decision where the Board addresses the issue of the existence of an IFA.
The claimant was asked why he could not move elsewhere in Argentina, for example, to Buenos Aires. The claimant said the police would be able to check his name in their computer when he tries to move from his home province to Buenos Aires, and then the police would look for him there. The panel asked the claimant why the police would be looking for him. He said that the police are the same everywhere, referring to their anti-gay sentiment, and the police in Mendoza had already allegedly threatened to kill the claimant. The panel considered the objective documentary evidence before it in respect of the claimant's statement. We find the information before us in respect of Buenos Aires as a viable IFA to be persuasive evidence that the claimant could live safely in that city. There is no persuasive evidence before us that the police in Mendoza, or by extension across Argentina, are interested in this claimant.
Thus, the panel finds the claimant's reasons for not wanting to go to Buenos Aires are inconsistent with the objective documentary evidence before the panel in respect of the treatment of persons with alternative sexual orientations in Buenos Aires at the present time. The panel finds no persuasive evidence that there is currently a climate of intolerance for gay men in Buenos Aires.
The following documentary evidence contained in the large package entered as Exhibit R-3 provides the following information:
The city of Buenos Aires and the town of Rosario have gay rights laws that ban some anti-gay discrimination . . . Four Argentine labor unions have now extended National Security System medical benefits to employees' same-sex partners. The unions and the system operate jointly in the health-care arena. [Exhibit R-2, item 1, "Homosexual Rights Around the World", p. 1]
This information is echoed in a Response to Information Request included in the same package:
A Washington Post article reports that soon after, "in cosmopolitan Buenos Aires, where local gay rights advocates say tolerance remains higher than in the Argentine provinces, a law that forbade same-sex couples from renting hotel rooms was taken off the books last month [August 1998] as the mayor cited the right to "free sexuality" (ibid.). The report adds the following:
The legal measures underscore a dramatic bloom in gay culture here. Last week, a new gay-themed magazine called Diez Porciento (10 Percent), a name that refers to the belief that one out of 10 people in the world is gay, began appearing on the city's news-stands. At least two popular Argentine television dramas now portray gay characters in a positive way; both have featured male and female same-sex kisses.
"We are having a cultural revolution unlike any other in Latin America", said Cristian Cravello, co-founder of Diez Porciento, which focuses on gay fashion, music, art and pop culture. "As this country is modernizing, and becoming linked with the Internet and communication from around the globe, our attitudes are becoming more modern and more accepting."
Those attitudes are obvious on the fashionable Santa Fe Avenue in Buenos Aires's upscale Barrio Norte, where gay youths gather openly on well-lit corners on weekend nights, while slick-dressed men hand out coupons and fliers to gay discos, restaurants and cafes.
Although tolerance for homosexuals and lesbians here has not reached the level of the most liberal U.S. and European cities, social acceptance is now arguably the highest in Spanish-speaking Latin America . . . [Exhibit R-2, item 2, Response to Information Request ARG33227.E, December 7, 1999, IRB, p. 2]
The panel considers this information to be highly persuasive of the climate of tolerance and growing acceptance in Buenos Aires of persons with alternate sexual orientation. It further supports the panel's finding that this claimant has a viable IFA in Buenos Aires should he return to Argentina.
The panel notes that, according to more recent documentary evidence released by the International Lesbian and Gay Association's (ILGA) Human Rights Committee (IGLHRC),
On August 30, 1996, the Statutory Convention of Buenos Aires unanimously approved a measure forbidding discrimination on the basis of gender, age, race, religion, political ideology or sexual orientation, making Buenos Aires the first Spanish-speaking city in Latin America to do so . . . on September 24th, the city's Statutory Convention passed a clause that repealed the infamous Police Edicts that have enabled police to arbitrarily detain young people, transvestites, gays, lesbians, and prostitutes among other (sic), without any form of judicial review. [Exhibit R-2, item 3, Argentina-World Legal Survey, The International Lesbian and Gay Association, December 23, 1999, p. 3]
Further documentary evidence shows that in Argentina, "homosexual couples are now eligible for widow and widow (sic) pensions . . . medical coverage is also extended to same-sex partners . . . [and] discrimination against transsexuals has ended, following a landmark court ruling permitting a person born male to become female". [Exhibit R-2, item 6, Response to Information Request ARG27761.E, September 16, 1997] Other documentary evidence [Exhibit R-3, item 8 "Gays in Argentine", QueerNet.org. June 6, 1995; item 11, "Lesbians, Gays, Transvestites and Transsexuals Coming Together in Buenos Aires", October 11, 1995; item 13, ILGA Report: 5th Pride in Buenos Aires: Cold Weather but No Cold Feet, July 1, 1996; item 20, The Washington Post, September 28, 1997] also shows that there is a large homosexual community in Buenos Aires and that they are able to carry on with gay-oriented social activities without being harassed, let alone persecuted, by the authorities.
Even if the panel accepted that the claimant faced harassment from some policemen in Mendoza, the documentary evidence reveals a variety of governmental mechanisms available to this claimant in order to lodge complaints against police for corrupt or violent or illegal activities. The claimant provided no satisfactory explanation as to why he did not pursue such avenues of national redress as set out in a variety of Responses to Information Requests contained in Exhibit R-3, such as ARG35680.E of 13 October 2000. Most important, however, and as stated above, even if the panel found the claimant to be at risk in Mendoza, the panel finds the cumulative documentary evidence before it to be persuasive evidence that the claimant has a viable IFA in Buenos Aires.
[8] The CRDD then went on to consider whether the conditions in Buenos Aires were such that it would be unreasonable, in all the circumstances, including those particular to the claimant, for him to seek refuge there, i.e. would it be unduly harsh to expect the claimant to move to another, less hostile part of the country before seeking Convention refugee status in Canada? The CRDD concluded that Buenos Aires was a realistic, attainable option for the applicant Righi. Its reasoning in this respect, is as follows:
The panel finds that the claimant failed to discharge the onus of showing that it would be unreasonable for him to relocate to Buenos Aires. On the contrary, the panel finds that it is reasonable to expect the claimant to be able to adjust reasonably well in Buenos Aires, the proposed IFA.
In reaching this conclusion, the panel notes that the claimant completed his secondary education and has five years of work experience. The panel further determines from the documentary evidence that it is reasonable to expect the claimant to obtain the support of at least one of the support groups for gays in Buenos Aires, should he require such support to facilitate his adjustment to life in the capital city. The claimant was asked why he never consulted or belonged to any gay support group in Argentina. He said they do not exist, although Exhibit R-3, containing among other things, the Sexual Orientation package, shows that indeed, such groups exist, especially in the city of Buenos Aires. Their existence contributes to our finding of the viability of this large city as an IFA for the claimant.
At a basic level, the claimant speaks the principal language spoken in Buenos Aires and in all of Argentina - Spanish. The panel finds that this linguistic facility would only serve to enhance his chances of leading a reasonably fulfilling and meaningful life in Buenos Aires. The panel is aware that the test of IFA is not one of perfection in the alternate location; it is a two-pronged component as identified above. The panel, therefore, considers Buenos Aires to be a viable IFA for this claimant.
[9] The applicants submit that credibility alone is not determinative of the question of whether the applicant Righi is a Convention refugee. It is alleged that the CRDD erred by finding that homosexuals no longer face persecution in Argentina and by finding that there exists a viable IFA. Counsel argues that the CRDD ignored and misconstrued documentary evidence in coming to these conclusions and in so doing erred by failing to consider the totality of the evidence. The applicants refer to six examples of documentary evidence allegedly ignored by the CRDD and submit that the failure to refer to relevant evidence constitutes reviewable error, which vitiates the decision.
[10] I have carefully reviewed the documentation in the record, the submissions of counsel and the specific documentary evidence referred to by counsel. First, it is noteworthy that the CRDD did not make a finding with respect to Argentina in the general sense. The panel found that even if there was a reasonable chance that the applicant Righi would be harassed in Mendoza because of his sexual orientation and even if it were to find that such cumulative harassment would amount to persecution in Mendoza, the applicant has a viable IFA in Buenos Aires. With respect to the six pieces of documentary evidence referred to, only two are in relation to Buenos Aries. Of the remaining four, two of the examples deal with Argentina, in the general sense, and two deal with the province of Cordoba. Only those specific to Buenos Aries are relevant to the CRDD finding of an IFA.
[11] One of those examples deals with demonstrations at the entrance of the Buenos Aires Legislature. The demonstrators included transvestites, representatives of the Argentine homosexual community, prostitutes' associations, citizens opposed to prostitution and a group of pensioners. Violent confrontations with police occurred during the demonstrations. This documentary evidence lacks the probative value suggested by the applicants and does nothing to assist the applicants' argument.
[12] The second example, specific to Buenos Aires, refers to separate raids of two gay bars in Buenos Aires. The first raid occurred on October 2, 1998 when forty people were detained. Within forty minutes, everyone had been released without anyone being formally charged. The second raid occurred in the same month, under the order of a judge, and police forcefully entered a pub and detained more than seventy people for an infraction to the games and prevention laws. The laws in question have since been repealed.
[13] It is well established that the Board is presumed to have considered all of the evidence before it: Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.). It is entitled to rely on documentary evidence in preference to that of the claimant: Zhou v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1087 (C.A.). The two examples, specific to Buenos Aires, are not, in my view, of such probative value that the CRDD was required to specifically refer to them, examine them and analyse them in detail. My examination of the record persuades me that the CRDD weighed and considered the totality of the evidence. The failure of the CRDD to embark upon a detailed inquiry with respect to the aforementioned evidence does not warrant my intervention. It was open to the CRDD to conclude that the applicant Righi had an IFA.
[14] The application for judicial review is dismissed. Counsel did not suggest a question for certification. No question is certified.
_____________________________
Judge
Ottawa, Ontario
October 2, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-4699-01
STYLE OF CAUSE: Christian Juan Righi and others v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 26, 2002
REASONS FOR ORDER OF THE HONOURABLE MADAM JUSTICE LAYDEN-STEVENSON
DATED: October 2, 2002
APPEARANCES:
Ms Lani Gozlan for the Applicant
Ms Pamela Larmondin for the Respondent
SOLICITORS ON THE RECORD:
Lani Gozlanfor the Applicant
Max Berger & Associates
Barristers and Solicitors
103 Bay Street, Suite 207
Toronto, Ontario
M5S 3A5
Mr. Morris Rosenbergfor the Respondent
Deputy Attorney General of Canada