Date: 20001027
Docket: IMM-682-00
BETWEEN:
CLARA MOORE
Applicant
-and-
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HENEGHAN J.
[1] Clara Moore (the "Applicant") seeks judicial review of a decision made by the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board") which found that she is not a Convention refugee.
[2] The Applicant arrived in Canada, at Toronto, on March 8, 1997. She made her Convention refugee claim on March 5, 1998. She sought admission as a Convention refugee on the basis of holding a well-founded fear of persecution by reason of membership in a particular social group, that is women and children who are subject to abuse.
[3] The Board found that she was not a Convention refugee and based its findings on two factors. The Board accepted her evidence as to being a victim of abuse but it found in the first place, that she is no longer at risk from the friend of her father who tried to rape her. Secondly, the Board rejected as implausible the claim that the Applicant had no where to stay in Dominica except with her father. The Board did not address the issue of availability of state protection.
[4] The Applicant grounds her application for judicial review on two issues. The first, stated in the Memorandum of Fact and Law, is as follows:
| Did the Board err in law in that it ignored and misconstrued the evidence and drew improper inferences from the evidence with respect to the Applicant's risk of abuse at the hand of her father? |
[5] At the hearing, counsel for the Applicant advanced a second issue, that is whether the Board erred in failing to consider that the change in circumstances, contemplated by section 2(3) of the Immigration Act, R.S.C. 1985, c. I-2, as amended, (the "Act"), can apply to a change in personal circumstances, as well as a change in country conditions.
[6] The first issue advanced by the Applicant is essentially directed to the standard of review which applies to decisions of the Board. The Applicant argued that the findings of the Board with respect to her ability to reside apart from her father, either with her sister or brother until she became self-sufficient and able to maintain her own residence, and "speculative" evidence concerning a continuing threat from her father, were capricious and perverse, made without regard to the evidence.
[7] This argument is flawed. The applicable standard of review in cases such as this one was stated by this Court in Singh v. M.C.I. (August 19, 1999) IMM-6076-98 (F.C.T.D.) as follows:
| Taking all these factors into account, as required by the pragmatic and functional approach, and having carefully considered the decision of the Supreme Court in Pushpanathan and Baker, I am of the opinion that the appropriate standard of review for determinations of whether or not there is more than a mere possibility that the Applicant would face persecution if he were to return to India remains patent unreasonableness. |
[8] The Board is vested with the task of assessing credibility. The Applicant carries a heavy burden in challenging a credibility finding by the Board; see Ismaeli v. M.C.I. (April 11, 1994), IMM-2008-94 (F.C.T.D.).
[9] I am not persuaded that the Applicant has discharged the burden of showing that the findings of the Board were perverse or capricious. In the result, there is no basis for judicial intervention in the Board's decision.
[10] So far the second argument advanced by the Applicant at the hearing of the application, I note that this argument was not raised before the Board. Presumably this argument could have been raised at that time since the facts upon which it rests were before the Board.
[11] In any event, this argument cannot succeed. The terms of reference for applying section 2(3) of the Act are changes in country conditions, not changes in the personal circumstances of an individual claimant. This is the context recognized by the jurisprudence; see Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2. F.C. 739 (F.C.A.) and Yamba v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 457, Court File No. A-686-98 (F.C.A.). Furthermore, the definition of "Convention refugee", section 2(1) of the Act, also seems to import considerations of country conditions.
[12] Accordingly, this application for judicial review is dismissed.
[13] The parties each submitted a question for certification each addressing the role of section 2(3) when there has been a change in the personal circumstances of a claimant but no change in country conditions. In my opinion, this is not a case which requires certification of a question as contemplated by section 83 of the Act.
[14] The application for judicial review is dismissed.
"E. Heneghan"
J.F.C.C.
Toronto, Ontario
October 27, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: CLARA MOORE |
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
| DATE OF HEARING: WEDNESDAY, OCTOBER 25, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: HENEGHAN J. |
DATED: FRIDAY, OCTOBER 27, 2000
| APPEARANCES BY: Mr. Lorne Waldman |
For the Respondent
| SOLICITORS OF RECORD: Jackman, Waldman & Associates |
Barristers & Solicitors
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20001027
Docket: IMM-682-00
Between:
CLARA MOORE
Applicant
-and-
CITIZENSHIP AND IMMIGRATION
Respondent
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