Date: Sun, 7 Aug 1994 21:26:06 -0400 From: ay690@freenet.carleton.ca (Rodrigo Espinoza) UNCLASSIFIED / NONCLASSIFIE FROM/DE EANDIHULL ORD ORD150 03JUN94 TO/A ALL IMMIGRATION MISSIONS HOM AND SOCAFF MANAGERS / TOUTES LES MISSIONS IMMIGRATION CDMS ET GERANTS DU PROC AFFSOC INFO EANDIHULL ISG GENERAL DISTRIBUTION SDI SDE SIP SIH SRE IVRP CMB REF ORD 0149 03JUN94 --- PROCESSING OF SAME SEX AND COMMON LAW CASES / TRAITEMENT DES CAS CONCERNANT DES CONJOINTS DE MEME SEXE ET DE FAIT RECENT TELEX (0RD0149) REMINDED MISSIONS OF BACKGROUND TO HUMANITARIAN AND COMPASSIONATE (HANDC) AUTHORITY PROVIDED UNDER NEW R 2.1. THIS TELEX WlLL DISCUSS OPTIONS AROUND HOW TO PROCESS SANE SEX AND COMMON LAW COUPLES AS THERE APPEARS TO BE SOME CONFUSION AND INCONSISTENCY IN APPLICATION OF REGULATIONS. 2. NEW FEDERAL GOVERNMENT HAS UNDERTAKEN TO CONDUCT REVIEW OF ISSUE OF RECOGNITION OF SAME SEX RELATIONSHIPS ACROSS RANGE OF GOVERNMENT PROGRAMS AND LEGISIATIONS. IN THE CONTEXT OF WIDER GOVERNMENTAL REVIEW THE TREATMENT OF SAME SEX RELATIONSHIPS UNDER THE IMMIGRATION REGULATIONS lS COMING UNDER INCREASING SCRUTINY BY PUBLIC, MEDIA, COURTS AND INTEREST GROUPS. LIKEWISE FAILURE OF IMMIGRATI0N TO RECOGNIZE COMMON LAW RELATIONSHIPS IS INCREASINGLY BEING QUESTIONED. 3. THE IMMIGRATION REGULATIONS DEFINE SPOUSE AS SOMEONE OF THE OPPOSITE SEX TO WHOM AN INDIVIDUAL IS JOINED IN MARRIAGE. DUE T0 THIS DEFINITION, FC SPONSORSHIP OF SAME SEX OR COMMON LAW SPOUSE OR INCLUSION OF SAME SEX OR COMMON LAW SPOUSE ON INDEPENDENT, REFUGEE OR OTHER APPLICATION IS CONVENTIONALLY PRECLUDED. THESE REGULATIONS REMAIN LAW OF THE LAND UNLESS THEY ARE CHANGED BY GOVERNMENT OR STRUCK DOWN BY COURTS. NEVERTHELESS IN SPITE OF DEFINITION OF SPOUSE, OTHER PROVISIONS OF REGULATIONS INCLUDING R. 11(3) AND R 2.1 MAY APPLY TO APPLICATIONS INVOLVING SAME SEX OR COMMON LAW COUPLES. 4. IN PROCESSING APPLICATIONS INVOLVING SAME SEX OR COMMON LAW RELATIONSHIP MISSIONS SHOULD CONSIDER EACH APPLICATION ON ITS INDIVIDUAL MERITS. FOLLOWING POINTS ARE INTENDED TO PROVIDE GUIDANCE TO MISSIONS TO ASSIST THEM IN PROCESSING OF SUCH CASES. 5. IF MISSION RECEIVES APPLICATION THAT MAS BEEN INITIATED VIA AN FC SPONSORSHIP WHICH INVOLVES SAME SEX OR COMMON LAW SPOUSE, MISSION SHOULD REVIEW THE APPLICATION AND PROCESS IT UNDER INDEPENDENT REGULATIONS AS PROCESSING UNDER FC NOT POSSIBLE. IF APPLICATION HAS BEEN OPENED AS FAMILY CLASS MISSIONS SHOULD CHANGE CATEGORY TO INDEPENDENT (ND2) AT SELECTION STAGE. IT IS NOT NECESSARY TO REFUSE AS FC PRIOR TO CHANGING CATEGORY. MISSIONS SHOULD ACCEPT THOSE SAME SEX OR COMMON LAW SPOUSES THAT QUALIFY UNDER NORMAL SELECTION SYSTEM OR WHERE R 11(3) IS WARRANTED IF SELECTION POINTS DO NOT REFLECT APPLICANTS ABILITY TO SUCCESSFULLY ESTABLISH. IN THESE CASES THE BONA FIDES OF THE RELATIONSHIP ARE PROBABLY NOT RELEVANT TO THE ASSESSMENT OF THE APPLICATION. 6. IF OPTIONS IN PARA 5 ARE NOT VIABLE MISSIONS SHOULD REVIEW SAME SEX OR COMMON Y TO WAIVE R8 AND AUTHORIZE THE ISSUANCE OF AN IMMIGRATION VISA. HANDC GROUNDS IN SUCH CASES INCLUDE THE EXISTENCE OF A STABLE RELATIONSHIP WITH A CANADIAN CITIZEN OR PERMANENT RESIDENT. MISSIONS SHOULD RECOGNIZE THAT UNDUE HARDSHIP WOULD OFTEN RESULT FROM SEPARATING OR CONTINUING THE SEPARATION OF A BONA FIDE SAME SEX OR COMMON LAW COUPLE. 7. WHEN ASSESSING WHETHER HANDC FACTORS ARE PRESENT MISSIONS MAY, OF COURSE, LOOK BEHIND SAME SEX OR COMMON LAW RELATIONSHIP (AS IS DONE WITH MARRIAGES OF CONVENIENCE). MISSIONS SHOULD ASSESS RELATIONSHIPS TO DETERMINE THAT THEY ARE BONA FIDE (IN TERMS OF DURATION AND STABILITY OF RELATIONSHIP) AND NOT ENTERED INTO PRIMARILY FOR THE PURPOSE OF GAINING ADMISSION TO CANADA OF ONE OF THE PARTIES. WHERE HANDC FACTORS ARE PRESENT AND APPLICANT IS OTHERWISE ADMISSIBLE MISSIONS SHOULD ISSUE IMMIGRANT VISA. WHERE NO GROUNDS EXIST TO ACCEPT APPLICATIONS, INCLUDING THOSE THAT WERE INITIATED BY A FC SPONSORSHIP (EVEN THOUGH SPONSORSHIP PRECLUDED BY REGULATIONS), MISSION SHOULD REFUSE APPLICANT AS INDEPENDENT UNDER A 19(2)(D), R4 ETC. INDEPENDENT REFUSAL LETTER SHOULD MAKE CLEAR THAT FC SPONSORSHIP WAS REVIEWED BUT FOUND TO BE OUTSIDE OF REGULATIONS. 8. MISSIONS MAY ALSO USE R. 11(3) OR R. 2.1 TO FACILITATE THE ADMISSION OF AN OTHERWISE UNQUALIFIED APPLICANT WHO IS INVOLVED IN A SAME SEX OR COMMON LAW RELATIONSHIP WITH AN INDIVIDUAL WHO, IN THEIR OWN RIGHT, QUALIFIES FOR IMMIGRATION UNDER ANY CATEGORY. FOR EXAMPLE, MISSIONS COULD USE R 2.1 TO ISSUE AN IMMIGRANT VISA TO THE SAME SEX SPOUSE OF A QUALIFIED INDEPENDENT APPLICANT. 9. VANCOUVER BASED ORGANIZATION QUOTE LEGIT UNQUOTE (LESBIAN AND GAY IMMIGRATION TASKFORCE) WHICH IS ACTIVE IN PROMOTING CHANGES TO IMMIGRATION SPOUSAL REGULATIONS HAVE ADVISED US THAT THEY INTEND ON SENDING QUESTIONNAIRE TO PROGRAM MANAGERS OVERSEAS. PURPOSE OF QUESTIONNAIRE IS TO ELICIT INFORMATION ON THE MANNER IN WHICH OFFICES MIGHT PROCESS QUALIFIED SAME SEX CLIENTS. WHILE LEGIT IS FREE TO SEND QUESTIONNAIRE WE HAVE INFORMED THEM THAT MISSIONS DO NOT NORMALLY ANSWER HYPOTHETICAL QUESTIONS. WE HAVE ALSO SHARED THIS TELEX WITH LEGIT AND HAVE INFORMED THEM THAT MISSIONS MAY CHOOSE NOT TO ANSWER QUESTIONNAIRE. 10. THIS TELEX SHOULD BE SHARED WITH ALL STAFF. ANY QUESTIONS ON THIS TELEX SHOULD BE ADDRESSED TO ORCI WITH COPY TO YR GEOGRAPHIC DIVISION. [FRENCH EQUIVALENT FOLLOWS] Notice 1 de 1, page 1 de 36, bd CRDD Indexed as: N. (L.X.) (Re) Convention Refugee Determination Decisions [1992] C.R.D.D. No. 47 No. T91-04459 Immigration and Refugee Board of Canada Convention Refugee Determination Division Toronto, Ontario Panel: E. Teitelbaum and L. Colle (Dissenting) In camera Heard: January 6, 1992 Decision: April 9, 1992 Argentina (ARG) -- Positive -- Males -- Arbitrary arrest and detention -- Credibility -- Freedom of assembly -- Freedom of association -- Human rights violations -- International refugee law -- International law -- Rape -- Sexual abuse -- Social Notice 1 de 1, page 2 de 36, bd CRDD group persecution -- Torture. Appearances: Michael Schelew, for the claimant(s). Kirk Cooper, Refugee Hearing Officer. REASONS FOR DECISION These are the reasons of the Refugee Division regarding the claim to Convention refugee status of xxxxxxxxxxxxxxxxxxxx. The hearing pursuant to section 69.1 of the Immigration Act [as enacted by R.S.C. 1985 (4th Supp.), c.28, s.18] was held at Toronto, Ontario on 6 January 1992. Michael Schelew, Barrister and Solicitor, represented the claimant. Also present were Kirk Cooper, Refugee Hearing Officer (RHO) and an interpreter fluent in the Spanish and English languages. Section 2(1) of the Immigration Act [as enacted by R.S.C. 1985 (4th Supp.), c.28, s.1] reads, in part: "Convention refugee" means any person who (a) by reason of a well-founded fear of persecution Notice 1 de 1, page 3 de 36, bd CRDD for reasons of race, religion, nationality, membership in a particular social group or political opinion, (i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country... The claimant bases his claim on the assertion that he fears persecution because of his membership in a particular social group. The relevant facts and information which led to this claim and were put forward in evidence by the claimant are as follows. He was born on xxxxxxxxxxxx 1963 in Argentina and is a citizen of that country. Since the age of eight years the claimant realized that he had certain sexual proclivities. While at a private boarding school he suffered humiliation and degradation at the hands of his fellow classmates because of his homosexuality. School authorities would not help him. He believes that they, like his classmates, were homophobic. Notice 1 de 1, page 4 de 36, bd CRDD During his military service in 1982, the claimant engaged in a romantic liaison with another soldier. When this liaison was discovered they were subjected to an eight-day jail term, followed by blackmail by an army officer until he completed his military service. After his release from the military in xxxxxxxx of 1982, he had no difficulties living a gay lifestyle in xxxxxxx until November 1985 when he was stopped by the police and taken to a local police station. His landlady was contacted and she secured his release, but by the end of that week she asked him to leave his quarters. The witness who appeared at this hearing testified that she was a tenant in the same apartment building and that the reason for the claimant's eviction was his homosexuality. The claimant, like other homosexuals, attended gay bars from time to time even though he was aware that the police routinely detained homosexuals who spent time there. In May of 1986 he was arrested at a gay bar. Once again he was subject to blackmail, this time to avoid having the authorities inform his parents and his employer about his sexual preference. Again in October of 1986, he was detained in a gay bar, then taken into Notice 1 de 1, page 5 de 36, bd CRDD a police car where he was beaten and mocked sexually. After being stripped of his money, he was let go. A similar incident took place in January of 1987, when he was released after paying the police money they demanded for discretion about his homosexuality. All of this served to frighten the claimant enough that he abstained, for a time, from going to gay bars. However, he still went to areas of town where he could meet like-minded people. In December of 1987 he was arrested by two policemen in that part of town. As he did not have enough money to pay the bribe for his release, the following day the police informed his employer and co-workers that he was gay. When confronted by his employer, he acknowledged that it was so. The degree of degradation and humiliation that he subsequently suffered at the hands of his co-workers made his work situation untenable and he felt obliged to resign. In January 1988, in a depressed state, the claimant moved to xxxxxxx, another city, in an effort to change his life. He found a new job and frequented gay bars. One morning that month he was arrested. After being verbally abused by the police he Notice 1 de 1, page 6 de 36, bd CRDD was released upon production of a gold watch and chain. Clearly, his expectation that his life would change as a result of this move did not materialize. In March of 1988, he returned to xxxxxxx where he took another job. At the same time he became involved in a relationship which ended in September of 1988. Again, his fear of reprisals prevented him from going to gay bars for a time. In February of 1989 the claimant met someone with whom he established a stable relationship. In April they attended a gay bar where they were stopped by two policemen. They paid money to the policemen so as to be able to be allowed to leave unhindered. One evening in June, while looking for his friend, he was set upon in front of a bar by four men who beat him and took his wallet. When the police arrived he sought their help. Instead of helping, they severely sexually abused him. Again in August of 1989, the police raided the bar where he and his friend had been visiting. His friend managed to get out but the claimant did not. Although he was only verbally mistreated and was released approximately six hours later, the consequences of this event were dire for him. The police Notice 1 de 1, page 7 de 36, bd CRDD telephoned his employer, who fired him immediately and humiliated him further by informing the other employees of the reason for his dismissal. One of his fellow employees lived in the same apartment building as he. She informed the other tenants and the superintendent of the incident at work. As a result the claimant was asked to leave the apartment building. The claimant and his friend no longer attended gay bars and had no more problems for the rest of that year. However, in January 1990 they attended a birthday party for a friend, after which they decided to go to a gay bar. The entire group was stopped by a police car and taken to the station. The claimant had been drinking that evening and, although not drunk, was emboldened to speak his mind. He refused to give money to the police and criticized them for not protecting gay people. Two other people supported him in his verbal attack on the police. For this they were placed in a van and taken to a detention centre in the country. The claimant was then set upon mercilessly. He was beaten with billy clubs and fists, stripped, sodomized, blindfolded, tied to the walls in spread- eagle fashion, given electric shock and then was forced to listen to others being tortured in the same manner. Apologies Notice 1 de 1, page 8 de 36, bd CRDD for his outburst in the police station produced none of the forgiveness he sought. This only led to another round of being raped, beaten, tortured by electricity, and left on the wall for a long period of time. While he was unconscious he was dumped on the side of a road under a bridge, naked, with his clothes next to him. He found his way to his friend's hairdressing salon. These events had further, unfortunate ramifications for the claimant. When his friend was unable to locate him, he telephoned the claimant's parents to see if he had returned there. Without telling them why, he explained that the claimant had been arrested. They came to xxxxxxx to the police station where they learned about their son's homosexuality. When he went to see his family to speak to them, the claimant's father told him that he was a disgrace, and would have nothing more to do with him. Stripped of any family support and unable to tolerate police terror any longer he decided that he had to leave Argentina. After making appropriate arrangements to leave Argentina, he and his friend arrived on 6 March 1990 in Canada. I accept that the claimant's testimony was credible and Notice 1 de 1, page 9 de 36, bd CRDD trustworthy. The issue for determination is this. Is the claimant a Convention refugee within the meaning provided in the Immigration Act? In my opinion he is. Based on all the evidence before me, he has shown that he has good grounds to fear persecution for a Convention reason. There is no question, in my mind, that the experiences as described by the claimant amount to persecution. The question I have to consider is whether the persecution is for a Convention reason. Mr. Schelew argued that the reason the claimant was persecuted is because he is a homosexual and, as such, is a member of a particular social group. In the publication by the office of the United Nations High Commissioner for Refugees (UNHCR) paragraphs 77 and 79 [The Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, January, 1988] read: 77. A "particular social group" normally comprises persons of similar background, habits or social status. A claim to fear of persecution under this heading may frequently overlap with a claim to fear Notice 1 de 1, page 10 de 36, bd CRDD of persecution on other grounds, i.e. race, religion or nationality. 79. Mere membership of a particular social group will not normally be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership con be a sufficient ground to fear persecution. Social group is not defined in the Immigration Act. I believe, therefore, that the words should be given their ordinary and usual meaning. The Oxford Dictionary defines social as "capable of being associated or united". Clearly homosexuals are capable of being associated or united. The same dictionary defines group as "a number of persons classed together on account of a certain degree of similarity". Homosexuals are classed together on account of a certain degree of similarity, i.e. that they are attracted to persons of their own gender. I therefore find that homosexuals, be they male or female, are members of a particular social group. In case No. 19880315 of the Federal Administrative Court [Exhibit C-4, Summary of case published in the International Journal of Notice 1 de 1, page 11 de 36, bd CRDD Refugee Law.] of the Federal Republic of Germany, referred to by Mr. Schelew, the court did not deal explicitly with the issue of whether homosexuals are a particular social group under article 1A(2) of the 1951 Convention; however, its ruling is useful in this regard. In this case the claimant was an Iranian citizen who asserted that he was in danger of being sentenced to death and executed in Iran because he was a homosexual. Pointing to the persecution of homosexuals in the concentration camps of the Third Reich, the court held that homosexuality could be considered as an attribute that could be grounds for asylum if it was an irreversible, personal characteristic. The court appears to have accepted that homosexuality is an immutable characteristic. In my opinion, even if homosexuality were a voluntary condition it is one so fundamental to a person's identity that a claimant ought not to be compelled to change it. In his book, The Law of Refugee Status [Toronto: Butterworths, 1991 at 163-164.], James C. Hathaway has this to say: While the precise issue has not yet been adjudicated in Notice 1 de 1, page 12 de 36, bd CRDD Canada, the basis for treating sexual orientation as an immutable characteristic capable of defining a social group was established by the decision of the Federal Court Trial Division in Timothy Veysey v. Commissioner of the Correctional Service of Canada. The applicant in that case alleged a breach of his right to equality by reason of the refusal of prison officials to extend the conjugal visitation policy in force for heterosexual spouses to include also homosexual spouses. In finding a violation of the equality rights provision of the Charter of Rights and Freedoms, Mr. Justice Dub‚ applied the 'ejusdem generis' test to define the scope of non-enumerated heads of equality. His conclusions are unmistakably pertinent to the definition of "particular social group" in refugee law: Most of the grounds enumerated in s. 15 of the Charter as prohibited grounds of discrimination connote the attribute of immutability, such as race, national or ethnic origin, colour, age. One's religion may be changed, but with some difficulty; sex and mental or physical disability, with even Notice 1 de 1, page 13 de 36, bd CRDD greater difficulty. Presumably, sexual orientation would fit within one of these levels of immutability. Another characteristic common to the enumerated grounds is that the individuals or groups involved have been victimized and stigmatized throughout history because of prejudice, mostly based on fear or ignorance, as most prejudices are. This characteristic would also clearly apply to sexual orientation, or more precisely to those who have deviated from accepted sexual norms, at least in the eyes of the majority. If I accept (as the German court and Mr. Justice Dub‚ have) that homosexuality is an immutable characteristic, that alone, in my opinion, suffices to place homosexuals in a particular social group. In the German court case referred to above, it would appear that the court assessed the claim of the person concerned within the context of political opinion without considering the ground of particular social group. In my view, however, a claimant who can show that merely because he is a Notice 1 de 1, page 14 de 36, bd CRDD homosexual he is at risk of persecution at the hands of the very agency which purports to protect him by law would establish that he is a Convention refugee on the ground of membership in a particular social group. He does not have to hold a political opinion or be persecuted because of his religion, nationality or race. Nor does he have to be perceived by his government as a political opponent. That is not to say that he could not also make a claim on the basis of one of those grounds. The claimant made no claim on any ground but social group. I do not believe that there is need for any link between membership in a particular social group and any other of the Convention grounds to justify finding a claimant to be a Convention refugee. What must be shown by the claimant is that he is at risk of persecution because he is a member of a particular social group, in this case the homosexual group. Among the many documents entered as evidence is the Europa World YearBook 1990 [Exhibit R-1] which indicates that no citizens in Argentina may be detained except for reasons and in the manner prescribed by the law. This is borne out by other documentary evidence [Exhibit R-1] in which the rights of people are ostensibly protected by the state. However, there is Notice 1 de 1, page 15 de 36, bd CRDD evidence that there have been violations of these legal protections in some instances. For example, while the constitution prohibits torture and the criminal code provides penalties for torture, there were several reported cases in which police officers were found to be the perpetrators of torturing or otherwise mistreating persons suspected of criminal activities [Exhibit R-1 - Item 4, p. 492 - U.S. Department of State, Country Reports on Human Rights Practices for 1990, Argentina.]. Nonetheless, it would appear from the documentary evidence that the police, with a few exceptions, have wide powers which are generally unchecked by the courts, and in some instances even supported by the courts and the Church. A paper prepared by the Immigration and Refugee Board Documentation Centre in January 1991 [Exhibit C-2] describes the general public's concern for and fear of police and their powers which are unchecked by the higher authorities. The agent of the claimant's persecution, the police, is an agency of the government itself. The UNHCR Handbook [The Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, January, 1988, at p. 5.], paragraph 78 reads: Notice 1 de 1, page 16 de 36, bd CRDD Membership in such a particular social group may be at the root of persecution.... I believe that the claimant's being a homosexual is at the root of his persecution by the government of Argentina. Homosexual activities in Argentina are not illegal, and the right to practice homosexuality between consenting adults exists for people over the age of 22 [Exhibit R-1]. After the reinstatement of democracy, gay groups began to operate openly. However, when the Comunidad Homosexual Argentina (CHA), Argentine Homosexual Community, based in Buenos Aires, applied for official legal recognition, the Argentine Federal Appeals Court refused the application and ruled that CHA was ineligible. It went on to accuse CHA of attempting to make homosexuality morally acceptable when it should be considered a "pathology" or a "negative value" [Exhibit C-2]. A Buenos Aires newspaper published the home addresses and national identity card numbers of directors of the Board of CHA, most of whom were quickly fired from their jobs. In addition, a second list of 36 members of the association also have their names and Notice 1 de 1, page 17 de 36, bd CRDD I.D. numbers published. Most of them, too, were dismissed from their work [Exhibit C-2, p. 19]. In my opinion, this decision and the action of the newspaper provide fertile ground for the clearly homophobic police force in that country to continue to employ its repressive tactics against homosexuals with impunity. It is necessary, I believe, to make a brief comment on an issue which is likely to occur in some minds. Why would anyone continue to frequent a place where they are likely to have encounters with the police? I am referring to gay bars. How do gay bars differ from another established institution, the singles bar? They both exist for the same purpose: to enable people with similar interests to socialize. There is no evidence that patrons of singles bars are subject to the kind of persecution that the claimant described. In this case, the claimant had the misfortune not to be sufficiently fleet of foot when the bars were raided. And why should he have to be? Article 20 of the Universal Declaration of Human Rights [as set forth by the United Nations in the Universal Declaration of Human Rights] states: Notice 1 de 1, page 18 de 36, bd CRDD (1) Everyone has the right to freedom of peaceful assembly and association. There was no evidence that these bars are anything other than social gathering places and for no evil purpose. An individual should not be exposed to illegal detention and torture by the simple act of being present in a legal place. The final question that I have to address is whether the claimant is unable or unwilling to avail himself of the protection of his country of nationality. The claimant was asked whether he complained to the authorities about the blackmail incident during his military service. He stated that he did not, as he believed that the word of his superior would carry more weight than his own and that the repercussions could be dire. He was also questioned as to whether he had attempted to lay charges against the police for their brutal treatment of him. The conversation he had with a lawyer involved in such matters convinced him that the better part of wisdom would be to desist from pursuing this idea. The Notice 1 de 1, page 19 de 36, bd CRDD lawyer advised him that the experience of other homosexuals who had attempted to do so was that they were inevitably victims of other, trumped up, charges. Homosexuals faced the constant fear of police threats that they would be exposed to their parents, their employer, their landlord and the community. A combination of these factors resulted in little action being taken by members of the homosexual community against the police. On the occasion of the claimant having overcome his fear enough to protest his treatment at the hands of the police the results were calamitous. On numerous occasions, when the police carried out their threats to expose the claimant, he lost his job, was expelled from his living quarters and finally was wrenched from his family. In these circumstances I find that the claimant is justified in not seeking the protection of his country. For all of the above reasons I determine that xxxxx xxxxxxxxxxxxxx is a Convention refugee. DATED at Toronto, this 29th day of May, 1992. "Ethel Teitelbaum" Notice 1 de 1, page 20 de 36, bd CRDD DISSENTING REASONS I have carefully reviewed the reasons of my esteemed colleague and concur in one aspect but dissent on several others, including the result, for the following reasons. MEMBERSHIP IN A PARTICULAR SOCIAL GROUP I find that the claimant is a member of a particular social group because of his homosexual orientation. I conclude this constitutes an innate and fundamental personal characteristic. Homosexuals have a pattern of social interaction and share some common understandings. It has been written: [Sociology, Broome and Selnick, pp. 124-125.] People in social groups are conscious of belonging together in common memberships, and a group possesses some mechanism to determine who belongs and who does not. Homosexuals are conscious of belonging together in a common Notice 1 de 1, page 21 de 36, bd CRDD sexual orientation. It is the innate and fundamental characteristic of homosexuality itself which determines who belongs and who does not. RISK OF PERSECUTION I have reviewed the documentary evidence. Argentina is a sexually conservative society that discriminates against and harasses homosexuals. However, the UNHCR Handbook, [Office of the United Nations High Commissioner for Refugees, Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, January 1988, paragraph 54, p. 15.] states: 54...It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned... I conclude for reasons to be outlined that not all homosexuals in Argentina are subject to the risk of Notice 1 de 1, page 22 de 36, bd CRDD persecution. In this particular claim, the incidents outlined by the claimant involving his treatment by the police, if found to be true, would constitute persecution. However, for reasons to be expanded upon later I do not find the part of his testimony regarding rape, torture and beatings by the Argentine police to be credible or plausible. Although I found the claimant's testimony regarding the instances of harassment (loss of job and apartment) to be credible, I found his testimony about the alleged police brutality to be exaggerated in an attempt to persuade the panel that what he suffered was persecution and not discrimination. Before delving into the particulars of the claim I would like to address the treatment of homosexuals in Argentina and whether as members of a particular social group they are subject to persecution. Homosexual relations in Argentina are not illegal and consequently the Buenos Aires Herald [Exhibit C-2, Buenos Aires Herald, August 26, 1990] is correct when it reports that homosexuality between consenting adults is a right enshrined in the Argentine constitution. Gay advocacy groups such as the Notice 1 de 1, page 23 de 36, bd CRDD Comunidad Homosexual Argentina (CHA) operate without government interference. [Exhibit C-3, The Advocate, December 31, 1991.] The CHA's application for official legal recognition was rejected by the Argentine Supreme Court by a 7-2 vote. [Ibid.] However, according to CHA President xxxxxxxxxxxx, Argentine President Carlos Menem, "has made it clear that if the gay rights group reapplies for legal status with the justice ministry, its application will be granted." [Exhibit C-3, The Advocate, December 31, 1991.] Argentine law proscribes numerous types of sexual behaviour or expression including the operation of homosexual bars in social clubs. According to Argentine law the managers of such facilities are subject to 1500-3000 peso fines and up to 30 days in jail. [Exhibit C-2, Articles of the Federal Argentine Police Edicts, undated, p. 76 with accompanying translation.] However, a 600-1500 peso fine and 15-day jail sentence is also possible for those who swear in public and draw obscene figures on the facade of buildings. [Ibid., p. 77. ] A 600-2100 peso fine and 21-day jail sentence is possible against: [Exhibit C-2, Articles of the Federal Argentine Police Edicts, undated, p. 77 with accompanying translation.] Notice 1 de 1, page 24 de 36, bd CRDD a) Those who provoke or annoy pedestrians with words or gestures which imply an offence of coarseness, the maximum punishment will be given when the act is performed against people from the Church, seniors, the weak, ladies and girls; b) Those who lack respect for a woman, making her victim of abuse or other incorrect actions, insult her or show her obscene gestures, say words or propose to her inconvenient things or deliberately follow her when she passes by; c) Those who bathe in public places, breaking rules of decency and decorum: d) Those who instigate youngsters to perform immoral acts and facilitate or allow them to enter places of prostitution or night clubs or other places inappropriate for their coarseness (sic); [Exhibit C-2, The Spanish version reads: "Los que inciten a menores a actos inmorales y facilitaren o permitieren su entrada a sitios Notice 1 de 1, page 25 de 36, bd CRDD de prostitucion o 'cabarets' y otros impropios para la moral;", p. 81.] e) Those who expose themselves in stores, squares or other public places with indecorous clothes or taking off their clothes in the same places: f) Those who show themselves in public dresses or disguised in clothes that belong to the opposite sex: g) Prostitutes or their attendants who incite people from their houses: h) People of either sex who publicly incite or offer themselves for a carnal act (April 19, 1949); i) Those subjects known as perverted who are found in the company of people under 18 years of age (July 15, 1932). Many of the reports submitted by counsel talk of the repression of homosexuals. Most of the documentary evidence is Notice 1 de 1, page 26 de 36, bd CRDD from gay advocacy groups or publications that would understandably highlight and possibly exaggerate the issues of the homosexual community. These publications are in my view one sided. Moreover, these publications have a specific objective and cannot be considered as providing objective reporting. Their reporting must be compared with documentary evidence submitted by the Refugee Hearing Officer including human rights reports from the Human Rights World Watch, the Lawyers Committee for Human Rights, Amnesty International and the U.S. State Department Report on Human Rights Practices [Exhibit R-1] all of which do not highlight homosexuals as being at a heightened risk of persecution. Counsel cited the Argentine Supreme Court's upholding of these edicts (Police Edict 207 [Exhibit C-2, Articles of the Federal Argentine Police Edicts, undated, p. 76-77 with accompanying translation.]) which among other provisions allows the detention, up to 30 days, of club owners who permit same- sex dancing and up to 21 days, of people of either sex "who Notice 1 de 1, page 27 de 36, bd CRDD publicly incite or offer themselves for a carnal act." [Supra, citation above, p. 77] I note these edicts also apply to those who swear in public, use insults, urinate in public or draw sexual graffiti. They apply to heterosexual men who make uninvited sexual advances towards women and to those wearing immodest clothes as well as to transvestites and prostitutes. The edicts govern the public behaviour of homosexuals and other groups because in Argentine society the sexual mores are such that the public display of certain behaviour is unacceptable - - yet there is a constitutional right to engage in homosexual relations in private. The edicts' aim seems to be to protect neighbourhoods, the elderly, minors and women. The edicts specifically state: [Supra, citation above, p. 77.] Those who provoke or annoy pedestrians with words or gestures which imply an offence or coarseness, the maximum punishment will be given when the act is performed against people from the Church, seniors, the weak, ladies and girls; In my view the edicts and their application may well Notice 1 de 1, page 28 de 36, bd CRDD involve harassment and discrimination of certain groups but they are not persecutory in nature. But I note as well that Argentine society itself is ambivalent about their application. The edicts were upheld by a close 5 to 4 Supreme Court ruling after having been overturned by lower courts. There have also been unsuccessful legislative efforts in the Argentine Congress since 1986 to overturn the edicts. [Exhibit C-2, "The Court Ratified That The Police Can Sanction With Even 30 days Imprisonment", Clarin, October 17, 1991, pp. 1-6.] In my view this is evidence that Argentine society is facing many of the problems experienced elsewhere in the world having to do with the rapidly changing sexual mores in the latter part of this century. The existence of these conflicts however does not establish that homosexuals or other groups are necessarily subject to persecution. PROTECTION ISSUES A major issue in this claim is the claimant's attempt at obtaining protection from the abuse of police authorities. The claimant made a feeble attempt through his lawyer who advised Notice 1 de 1, page 29 de 36, bd CRDD him against complaining against the Argentine police. I note that the documentary evidence states: [Exhibit R-1, item 4, U.S. Department of State, Country Reports on Human Rights Practices for 1990, Argentina, p. 492.] ...during 1990 there were several cases in which police officers were suspended, charged, and sentenced to prison for torturing or otherwise mistreating persons suspected of criminal activities. Even if the claimant was reluctant to pursue this avenue I note he made no attempt to go through the CHA which is waging a highly publicized and visible gay civil rights struggle. The claimant also made no attempt to approach any media outlet in the country to press his case. Some outlets like the Buenos Aires Herald have editorially supported gay civil rights and the CHA's bid for legal recognition: [The Handbook on Procedures and Criteria for Determining Refugee Status, Geneva, January, 1988.] ...Once one floodgate of discrimination is opened, any number may follow and that is a risk a country like Notice 1 de 1, page 30 de 36, bd CRDD Argentina cannot afford the luxury of taking. The case against CHA affects not only those males and females less attracted to the opposite sex than to their own but also freedom-loving people irrespective of their sexual preferences. Furthermore, another option for recourse would have been international human rights organizations which enjoy unrestricted access in Argentina and domestic human rights organizations which operate openly. [Exhibit R-1, item 4, U.S. Department of State, Country Reports on Human Rights Practices for 1990, Argentina, p. 496.] CREDIBILITY/PLAUSIBILITY According to the claimant his experiences with police physical and sexual attacks had the cumulative effect of making him flee Argentina. But I find that the implausibility of some of the incidents recounted by the claimant seriously impairs his credibility regarding his dealings with the police. In assessing the claimant's testimony revolving around his Notice 1 de 1, page 31 de 36, bd CRDD dealings with the police I have used the test contained in Faryna v. Chorny: [Faryna v. Chorny (1952) 2 D.L.R. 354 (B.C.C.A.) at 357.] In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Although there are documented instances of discrimination and harassment of homosexuals in Argentina the claimant's testimony regarding severe police abuse is neither plausible nor credible. I counted 10 separate accounts of encounters with the police emanating from his attendance at gay bars starting in 1986 until 1990. Because of his frequenting of gay bars and subsequent encounters with the police the claimant allegedly suffered constantly escalating terror including being blackmailed four times, robbed, sexually assaulted twice, raped five times, arrested, beaten, tortured, and given electric shock treatment. The claimant had gay friends outside of the bar scene and when asked why he kept going to gay bars despite Notice 1 de 1, page 32 de 36, bd CRDD the ensuing alleged terror, he testified that he liked to dance, have good times and socialize. I find that answer not credible in that it is inconceivable that the claimant would seek good times if in fact he would suffer ever increasing excruciating treatment with each eventful visit to a gay bar. He could not give a credible or plausible answer how any disco could be so worthwhile that he would put his life at risk. The claimant alleged he was sexually assaulted by police. He said that in October 1986 he was caressed sexually in a police car, that in June 1989 he was sexually abused by drunken police officers and then raped and that on January 20, 1990 he was beaten, sodomized and raped three times in what resembled a sexual torture chamber. I find this testimony implausible given the claimant's repeated description echoed by counsel and the RHO of a homophobic/Catholic, [Exhibit C-2, Ben Carlson, "Argentina's Homophobia Protested", Bay Area Reporter, October 30, 1991.] Latino-macho, AIDS-loathing security establishment [Exhibit R-2, Maria Laura Avignolo, "Argentina keeps prisoners with AIDS in shackles", Latinamerica Press, October 24, 1991.] that regularly engages in blackmail against homosexuals. I find implausible that a police force that Notice 1 de 1, page 33 de 36, bd CRDD allegedly hunts homosexuals would itself take part in sexual assaults that would involve the very activities it finds so disturbing including homosexual sexual contact. Would that not leave police open to blackmail by other officers -- mirroring what happened to the claimant in the army? The claimant testified that the assaulting officers used sex as a punishment. But in this instance it would have been a sexual punishment that would have comprised some of the very physical acts including unprotected sex with a homosexual that the homophobic Argentine police force found so hateful. DOCUMENTARY EVIDENCE REGARDING SEXUAL ASSAULTS BY POLICE I have reviewed all the documentary evidence and found one reference to sexual assault involving federal police officers. [Exhibit C-2, Rex Wockner, "Anti-gay terror escalates in Argentina", Outlines, March 1990.] The article quotes a Comunidad Homosexual Argentina press release as stating that police engaged in psychological torture against gay prisoners including exposing them "to mockery, insults, humiliation and even sexual assault." The context of the article is somewhat Notice 1 de 1, page 34 de 36, bd CRDD ambiguous as to the degree of direct police involvement in such sexual assaults. The press release seems to be written in the style of an advocacy group trying to publicize and dramatize its cause. Furthermore, the charge is listed ninth in a list of actions allegedly perpetrated by the police. The sexual assault charge comes off as a throw-away line instead of a major feature of this press release which would have been expected given its potential significance. I note there is no mention of sexual assaults committed by police against gays in any of the other 11 articles [Exhibits C-2, C-3, various articles] produced by gay rights publications. One would expect these publications to highlight such incidents. Other than the Outlines article referred to above, there is no reference of sexual assaults in any of the 15 articles and press releases [Exhibits R-1, R-2, C-2, C-3, various articles] in which the Comunidad Homosexual Argentina is a prominent participant. Furthermore, there is no reference in any of the other Notice 1 de 1, page 35 de 36, bd CRDD documentary evidence [Ibid.] to sexual and physical assaults of gays by police. This evidence includes reports and statements from the Human Rights World Watch, the Lawyers Committee for Human Rights, Amnesty International, the U.S. State Department Report on Human Rights Practices and an Argentine organization, the Permanent Assembly for Human Rights. I have already noted that international and domestic human rights groups could easily document such abuses if they existed since they have unrestricted access in Argentina. All of the above factors leads me to attach low probative value to the Outlines article and on a balance of probabilities, I find that the police do not engage in sexual attacks of homosexuals in Argentina. For all these reasons, I find the claimant's testimony regarding his dealings with the police to be pervasively implausible and I therefore conclude that the claimant did not experience persecution. CONCLUSION Therefore, for all the above reasons I conclude that xxxxxxxxxxxxxxxxxxxx is not a Convention refugee. Notice 1 de 1, page 36 de 36, bd CRDD DATED at Toronto, this 29th day of May, 1992. "Larry Colle" Fin du document End of pl request. Please type "r" to see the next ranked document. -- rodrigo espinoza ay690@freenet.carleton.ca