Vidal v. Canada (Employment and Immigration), docket A-644-92

     A-644-92

B E T W E E N:

     DANIEL FERNANDO VIDAL

MARIA GRACIELA ESPINA DE VIDAL

MARIA FERNANDO VIDAL

Applicants

- and -

THE MINISTER OF EMPLOYMENT AND IMMIGRATION

Respondent

     REASONS FOR ORDER

GIBSON, J.:

     These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board that the Applicants are not Convention refugees within the meaning of that term in subsection 2(1) of the Immigration Act¹. The decision of the CRDD is dated the 4th of December, 1991.

     The Applicants are citizens of Argentina. They base their claims to a well-founded fear of persecution if required to return to Argentina on the grounds of political opinion and membership in a particular social group. Their claims derive largely from the actions of Daniel Fernando Vidal (the "principal applicant"). By reason of the principal applicant's actions, the other two claimants, his spouse and child, were subjected to a range of threats.

     The principal applicant, from the autumn of 1982 until the time when he, his spouse and child left Argentina in the summer of 1989, was employed in a series of unionized positions. He held a principled view against the deduction by his employers from his wages of monies to pay for union dues. He felt strongly that union dues were diverted for the benefit of union leaders and did not support the vast majority of employees, whom he referred to as "the real workers". He was an active supporter of the Union Civica Radical political party and not of the "Justicialista" or "Peronista" party which, he testified was closely aligned with the union groups comprising the General Confederation of Workers in Argentina.

     In the result, the principal applicant was intimidated, roughed-up and threatened to the point of death threats against both he and his spouse and child. His spouse received threatening telephone calls. After the Applicants left Argentina, the principal applicant's mother was, on at least three occasions up to and including during 1990, the subject of obscene threats and inquiries as to his whereabouts.

     Early on in its analysis, the CRDD states:

The panel does not consider mandatory union dues to constitute persecution. Such practices are consistent with labour practices in democratic countries such as Canada. The panel has considered the beatings the claimant suffered as a result of the failure to pay the dues but concludes that there is a viable local flight alternative.

Later in its analysis, the CRDD continues:

The claimant testified that he is not safe in any city in Argentina including his hometown of Mendoza. He said he would not be safe even if the UCR [the political party that the principal applicant supported] was in power.

The panel finds that portions of the claimant's testimony detailing union harassment were credible but concludes there remains the viable option of a local flight alternative.

Argentina is a large country. Its area is 2,758,827 square kilometres, making it the second largest country in South America. Its major cities, besides Mendoza, include Buenos Aires, Cordoba, Rosario and San Miguel de Tucuman.

     Finally, the CRDD concluded in the following terms:

The panel has noted that Argentina is not a one-party, monolithic state. There are municipal and provincial jurisdictions controlled by political opponents of the Justicialista (Peronist) Party and its trade union allies. Furthermore, each provincial police force is under control of the provincial governor.

In this context, it is the panel's view that the claimant could live safely in provinces of Argentina controlled by the UCR. The claimant testified he could not live safely in other areas but his problems arose in Mendoza controlled by the Peronists. Not all cities and provinces are controlled by the Peronist party. As Zalzali stated:

... there may be several established authorities in the same country which are each able to provide protection in that part of the territory controlled by them, protection which may be adequate but not necessarily perfect.

For these reasons, the panel believes that there would be no more than a minimal possibility of persecution should the claimants return to Argentina.

For all of the above reasons, the panel concludes that principal claimant does not have a well-founded fear of persecution based on any of the reasons contained in the definition of a Convention refugee and because of the availability of a reasonable local flight alternative.2

     The principal applicant did indeed testify that he could not live safely in other areas of Argentina than Mendoza. The following exchange took place between he and his counsel:

Q.      Mr. Vidal, could you have maybe gone to another city or gone away from where you are, but within Argentina, and worked and ---

A.      Definitely not. This union's system is tremendous. They are all united. United and joined with the --- General Confederation of Workers.

     Before me, counsel for the Applicants submitted that no notice that internal flight alternative would be an issue for the Applicants was given by the CRDD or the Refugee Hearing Officer to the Applicants before the hearing or at the commencement of the hearing. Nonetheless, as indicated above, the record before the CRDD discloses that the principal applicant and his counsel were well aware of the internal flight alternative issue and voluntarily addressed it in testimony. Counsel further argued that, in light of the principal applicant's testimony on the issue, it simply was not open to the CRDD to reject the Applicants' applications for Convention refugees status without either rejecting the principal applicant's testimony on the issue of internal flight alternative on the basis of credibility or without further analysis justifying its preference for a view that an internal flight alternative was available.

     Counsel for the Applicant cited to me my decision in Kulanthavelu v. Minister of Employment and Immigration³ where I wrote:

Mr. Justice Linden [in Thirunavukkarasu [1994] 1 F.C. 589] appears to have gone further than did Mr. Justice Mahoney in the portion of his reasons from Rasaratnam that is quoted above. Mahoney J.A. indicates that a question of an internal flight alternative "...must be expressly raised at the hearing...". Mr. Justice Linden indicates that the purpose of the notice is to allow an applicant and his or her counsel "...to prepare an adequate response..." or to prepare to discharge the burden that falls on them once the notice is given. It can be presumed that, in many cases at least, notice at the hearing will be insufficient for this purpose.

In this case, there is no evidence that notice was given to the Applicant in advance of the hearing that the issue of an internal flight alternative would be considered. Nor is there any indication of the face of the transcript from the hearing that the issue was "expressly raised at the hearing", in the words of Mr. Justice Mahoney, by the hearing officer or the CRDD although it was raised in passing by counsel for the Applicant. On the authority of Thirunavukkarasu, on this ground alone, I would find myself compelled to allow this application were it not for the fact that, despite this failure, I conclude that the Applicant discharged the burden on him [to demonstrated that he had no viable internal flight alternative].

     It would appear that my decision relied on on behalf of the Applicants has been overtaken by subsequent jurisprudence. In Balasubramaniam v. The Secretary of State of Canada⁴, Madame Justice Desjardins wrote:

At the beginning of the hearing before the Board, the presiding member indicated that the IFA was an issue the Board wanted to be addressed. The appellant was questioned by the Refugee Hearing Officer (RHO) and expressed his fears if he were to be returned to the Jaffna, Colombo and Kandy areas. Points of clarification were sought by the presiding member with regard to Colombo.

The appellant pleads before us that the notice given by the Board was insufficient in that it did not give the appellant the opportunity to respond adequately to the IFA issue and this would explain the paucity of the evidence as noted by the Board.

There is no doubt that the notice given by the Board complies with the jurisprudence of this Court as stated by Mahoney J.A. in Rasaratnam v. Canada (Minister of Employment and Immigration) and later reaffirmed by Linden J.A. in Thirunavukkarasu v. Canada (Minister of Employment and Immigration).

Counsel representing the claimant gave no indication that he was taken by surprise or that he needed an adjournment to better prepare for the hearing.

[citations omitted]

Thus it would appear, first, that notice given at the opening of a hearing before the CRDD that internal flight alternative is an issue is sufficient notice, particularly in circumstances where counsel representing the claimant gave no indication that he or she was taken by surprise or that an adjournment was needed to better prepare for that issue. Here, no notice whatsoever would appear to have been given. Nonetheless, counsel representing the Applicants gave no indication that she was taken by surprise or that she needed an adjournment to better prepare and evidence on the issue of internal flight alternative was indeed presented.

     In the circumstances, by extension from Balasubramaniam, I conclude that the Applicants herein suffered no prejudice by the failure to give notice that internal flight alternative was in issue and that therefore the failure to give notice did not constitute a reviewable error.

     In this matter, the CRDD did not ignore the principal applicant's evidence that no internal flight alternative would be available to him and his family if required to return to Argentina. Nor did it find the principal applicant's evidence in that regard to be less than credible. Instead, it preferred to rely on documentary evidence on the geography of Argentina, on the political-geographical make-up or Argentina and on the relationships between political parties, unions and law enforcement agencies in Argentina to conclude that an internal flight alternative was available to the Applicants at the time of their hearing before the CRDD. Despite the able argument of counsel for the Applicants, I conclude that this preference of documentary evidence over the evidence of the principal applicant as a basis to conclude that an internal flight alternative was available to the Applicants was reasonably open to the CRDD.

    

     In the result, this application for judicial review will be dismissed.

"Frederick E. Gibson"

Judge

Toronto, Ontario

May 15, 1997

     FEDERAL COURT OF CANADA

     Names of Counsel and Solicitors of Record

COURT NO:                  A-644-92

STYLE OF CAUSE:          DANIEL FERNANDO VIDAL ET AL.

                     - and -

                     THE MINISTER OF CITIZENSHIP

                     AND IMMIGRATION

DATE OF HEARING:          MAY 12, 1997

PLACE OF HEARING:          TORONTO, ONTARIO

REASONS FOR ORDER BY:      GIBSON, J.

DATED:                  MAY 15, 1997

APPEARANCES:

                     Mr. Jegan N. Mohan

                         For the Applicants

                     Ms. Cheryl D. Mitchell

                         For the Respondent

SOLICITORS OF RECORD:

                     Mohan and Mohan

                     Barristers & Solicitors

                     3300 McNicoll Avenue

                     Suite 225

                     Scarborough, Ontario

                     M1V 5J6

                         For the Applicants

                      George Thomson

                     Deputy Attorney General

                     of Canada

                         For the Respondent

                     FEDERAL COURT OF CANADA

                     Court No.:      A-644-92

                     Between:

                     DANIEL FERNANDO VIDAL ET AL.

     Applicants

                         - and -

                     THE MINISTER OF CITIZENSHIP

                     AND IMMIGRATION

     Respondent

                     REASONS FOR ORDER

__________________

¹      R.S.C. 1985, c.I-2

²      Zalzali v. Minister of Employment and Immigration (1991), 14 Imm. L.R. (2d) 81 (F.C.A)

³      Court File Imm.-57-93, December 3, 1993 (unreported) (F.C.T.D.)

⁴      Court File A-154-93, January 21, 1994 (unreported) (F.C.A.)