Date: 20050106
Docket: IMM-1263-04
Citation: 2005 FC 5
Ottawa, Ontario, this 6th day of January, 2005
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
ALEXANDER JACQUIN CUESTA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Alexander Cuesta arrived in Canada from Colombia in January 2003. He says he fears persecution in Colombia because of his homosexuality. He presented his claim to a panel of the Immigration and Refugee Board, but the Board determined that he was not entitled to refugee protection. Mr. Cuesta argues that the Board erred when it found there was insufficient credible evidence supporting his claim. He asks for a new hearing.
[2] I can find no basis for overturning the Board's decision and must, therefore, dismiss this application for judicial review.
I. Issue
Did the Board err in finding that Mr. Cuesta did not have a well-founded fear of persecution in Colombia based on his sexual orientation?
II. Analysis
[3] I can only overturn the Board's decision if I find that it was patently unreasonable, in the sense that it was entirely out of keeping with the evidence before it.
[4] Mr. Cuesta argues that the Board failed to take account of documentary evidence showing that homosexual men are seriously mistreated in Colombia. Further, he suggests that the Board erred when it concluded that it was unlikely that he would be persecuted in Colombia given that he had not experienced any problems in the past. He says he did not suffer persecution in the past because he kept his sexual orientation a secret. Now he wants to live with his partner. As a result, it would become public knowledge that he is gay. He claims to fear the consequences of public disclosure of his sexual orientation.
[5] The Board clearly considered some of the documentary evidence and, from it, concluded that the treatment of homosexual males was improving in Colombia. It noted that consensual homosexuality was decriminalized in 1980; an openly gay candidate was elected governor of Valle del Cauca in 1997; recent court decisions proscribed discrimination based on sexual orientation; an advocate for gay rights in Colombia had experienced no reprisals for his work; attempts have been made to introduce same-sex partnership legislation; and gay pride marches take place in major cities.
[6] Mr. Cuesta suggests that the Board overlooked documentary evidence of violence against gay men, including reports of "social cleansing" of street prostitutes and homosexuals, a shooting incident at a gay bar in Cali in 2001, nine cases of extortion and murder of homosexual men in Bogota, and threats and violence against two men who ran a travel agency known for promoting gay tourism.
[7] Having reviewed the documentary evidence, I cannot find that the Board's conclusions were patently unreasonable. Mr. Cuesta no doubt disputes the emphasis and weight the Board ascribes to the evidence, but that is not a basis for overturning the Board's decision. While the Board did not refer specifically to the reports Mr. Cuesta brought to my attention, it did note that "the situation there is not perfect by any means" and that "there are continuing problems with human rights in Colombia". In the end, however, it concluded that there was only the "merest possibility" that Mr. Cuesta would be persecuted if he returned to Colombia. This conclusion finds support in the evidence before the Board.
[8] Mr. Cuesta acknowledged that he did not have problems before he left Colombia. Therefore, he did not try to seek asylum in the other countries he studied in or visited before he came to Canada (e.g. Italy, Spain, United Kingdom, Mexico). Nor did he have any fear of returning to Colombia, which he did twice during his travels. When he arrived in Canada, he waited two months before making his refugee claim. The Board concluded from this evidence that Mr. Cuesta did not actually fear persecution.
[9] Mr. Cuesta argues that the Board concentrated too greatly on his past experiences and failed to consider his fear of living openly with his partner in Colombia, given the prevailing homophobic attitude in Colombian society. In my view, however, the Board was entitled to take account of Mr. Cuesta's failure to seek asylum at the first reasonable opportunity. He met his partner in Italy and, even based on his own characterization of his claim, could have made a claim anytime thereafter. I cannot fault the Board's analysis of this issue.
[10] Accordingly, I must dismiss this application for judicial review. Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is dismissed;
2. No question of general importance is stated.
"James W. O'Reilly"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1263-04
STYLE OF CAUSE: CUESTA v. MCI
PLACE OF HEARING: TORONTO, ON
DATE OF HEARING: November 24, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: January 6, 2005
APPEARANCES BY:
Ms. Linda Martschenko FOR THE APPLICANT
Ms. Alison Engel-Yan FOR THE RESPONDENT
SOLICITORS OF RECORD:
LINDA MARTSCHENKO FOR THE APPLICANT
Windsor, ON
MORRIS ROSENBERG
Deputy Attorney General of Canada
Toronto, ON FOR THE RESPONDENT
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