Date: 19980623
Docket: IMM-2288-97
OTTAWA, ONTARIO, THE 23rd DAY OF JUNE 1998
PRESENT: THE HONOURABLE MR. JUSTICE RICHARD
BETWEEN:
NSIMBA DIAMANAMA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
UPON an application for judicial review of a decision of the Refugee Division dated May 13, 1997, wherein it was determined that the applicant is not a Convention refugee;
THIS COURT ORDERS THAT:
1. The application for judicial review is dismissed.
2. No question will be certified.
__________________________
Judge
Date: 19980623
Docket: IMM-2288-97
BETWEEN:
NSIMBA DIAMANAMA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
RICHARD J.:
[1] This is an application for judicial review of a decision of the Refugee Division dated May 13, 1997, wherein it was determined that the applicant is not a Convention refugee.
[2] The applicant has failed to show that the Refugee Division failed to deal with one of the grounds for persecution, relied on by the applicant, that she was the spouse of her husband. Counsel for the applicant claims this was not addressed by the tribunal in its reasons. However, the record shows that the tribunal did refer to the fact that her husband left Zaïre in 1989 because of his anti-government activities. The tribunal made a specific finding that there was insufficient evidence to establish that the applicant suffered any serious prejudice because of her husband. The tribunal did not misunderstand that aspect of the applicant's claim. In reaching its decision that the applicant was not a Convention refugee on any of the enumerated grounds, the tribunal must be understood to have concluded that the applicant had not established a well-founded fear of persecution on this ground.
[3] The applicant also asserts that the tribunal had made a number of errors of fact in reaching its decision that she did not have a well-founded fear of persecution by reason of her refusal to cooperate with the authorities to make uniforms for the MPR, the party in power, her subsequent detention and provisional release.
[4] After hearing the arguments of counsel, I have concluded that the tribunal did not ignore any of the applicant's evidence or arguments, and that it was open to the tribunal to determine:
1. That the applicant's problems with the authorities were not related to her husband's previous political activity;
2. That the authorities are not interested in her and that she has no prospective well-founded fear of persecution;
3. That she never belonged to a political party and that her problems with the military were caused by the fact that, as owner of a shop, she refused to make uniforms; and,
4. That she had made very little effort to contact relatives in Zaïre or obtain evidence to support her claim.
[5] It was open to the tribunal to find that the applicant had failed to satisfy the onus on her to show that she had a well-founded prospective fear of persecution if she were to return to Zaïre.
[6] The applicant has failed to show that the tribunal's findings are patently unreasonable.
[7] Finally, the applicant's counsel raised the question of the tribunal's failure to consider the applicability of subsection 2(3) of the Immigration Act. At no time was this matter raised by the applicant and her counsel, who represented her at two separate hearings, before the Refugee Division.
[8] Counsel for the applicant asserts that the Refugee Division is sometimes required, as a matter of law, to consider the applicability of subsection 2(3) of the Immigration Act, even if the issue is not raised by the parties.
[9] Counsel submits that this was such a case by reason of the brutal and horrible treatment the applicant was subjected to by three soldiers while in detention. A medical report about that treatment was filed at the hearing.
[10] As I stated in Singh v. Canada (1996), 30 Imm. L.R. (2d) 226 at 228, generally, subsection 2(3) applies only to situations involving a determination of change of circumstances.
[11] As noted by Madame Justice Reed in Corrales v. Canada, (1977) F.C.J. No. 1283 at paragraph 7, where the Tribunal has never made a determination that the applicant was a Convention refugee, there is no need for it to consider subsection 2(3) of the Immigration Act.
[12] In this case, the tribunal did not determine that the applicant was a Convention refugee.
[13] In my view, in these circumstances, subsection 2(3) of the Immigration Act is not engaged. At the time of the hearing before the Refugee Division, there was no question of changed circumstances in the country from which the applicant sought refuge.
[14] The applicant has failed to show that subsection 2(3) of the Immigration Act applies in these circumstances.
[15] Accordingly, the application for judicial review is dismissed.
[16] No question will be certified.
__________________________
Judge
Ottawa, Ontario
June 23, 1998
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-2288-97
STYLE OF CAUSE: NSIMBA DIAMANAMA v MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 17, 1998
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE RICHARD
DATED: June 23, 1998
APPEARANCES
Mr. Michael Crane FOR THE APPLICANT
Mr. David Tyndale FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Mr. Michael Crane FOR THE APPLICANT Toronto, Ontario
Mr. George Thomson FOR THE RESPONDENT Deputy Attorney General of Canada
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