Date: 20010501
Docket: IMM-4580-00
Neutral citation: 2001 FCT 421
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
JESSICA ROBYN DOLAMORE
Respondent
Facts
[1] The respondent, a citizen of New Zealand and Australia, alleges a well-founded fear of persecution at the hands of her abusive former husband and his accomplices, by reason of her membership in a particular social group, the group being "women". She also claims a well-founded fear of persecution from members of her biological family, by reason of her membership in the family and arising from their abuse of her as a child.
[2] In her Personal Information Form ("PIF"), the respondent recounted a litany of physical, sexual and emotional abuse, beginning at the age of three years, at first at the hands of her alcoholic mother and her mother's boyfriends, and her violent father. The respondent, as well as her siblings, were made wards of the state when she was nine years old because of the appalling conditions in which they were living.
[3] As a teenager, the respondent went to live with her married sister, where she was raped by her brother-in-law. Believing that she had no other alternative, she went to Australia to rejoin her parents, where she once again suffered her father's violence and sexual abuse. Soon after, still only 14 years of age, she went to work for an Australian military man who needed a nanny for his son. Her new employer proved to be as violent and abusive as her father. When she became pregnant as a result of repeated rapes, he assaulted her viciously, causing her to miscarry. A few years later, when she was 19 years old, they married.
[4] In her PIF, the respondent describes repeated abhorrent and vicious physical and sexual abuse suffered at the hands of her first husband over many years, abetted on occasion by his brother.
[5] After ten years of marriage and the birth of three daughters, the family moved to the United States, where her former husband enrolled at Weber State University in Utah.
[6] The violence continued in the United States, until, following one particularly vicious attack on her, the respondent's former husband was charged and convicted of aggravated assault against her and subsequently deported from the United States to his native country Australia in 1990, following their divorce. Before his departure, he threatened to kill her and her family.
[7] Subsequently she learned from her three daughters that he and his friends had sexually abused them also. She also alleged that he made threatening calls and wrote threatening letters to her after he had left the United States, as well as using his friends to harass her.
[8] Once the respondent had completed her degree in Utah, she returned reluctantly to New Zealand with her children in December 1995, having made unsuccessful inquiries into means of obtaining permanent resident status in the United States.
[9] She stated that she hoped to be able to hide from her former husband and her own family in New Zealand. However, she alleged that he and her family were able to locate her through her church and began to harass her again. Once her former husband sent a friend to her bishop, asking for her whereabouts. She received anonymous threatening telephone calls which she believed came from him. In addition, she alleged that he had involved her family in his search for her, as they were also attempting to contact her through the church.
[10] While living in New Zealand, the respondent met and married her second husband. After several incidents, some involving a dispute with members of her church, the respondent and her family decided to leave New Zealand, fearing that her former husband or one of his family would kill them as he had threatened to do. Consequently, they left for Canada in November 1997 and made refugee claims.
Issues
11- Did the Board err in considering that the respondent was a member of a particular social group?
12- Did the Board err in failing to consider state protection in objectively assessing the respondent's fear of persecution from her biological family?
13- Did the Board base its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the evidence before it?
14- Did the Board err in concluding that there were compelling reasons why the respondent should not be returned to New Zealand pursuant to subsection 2(3) of the Immigration Act?
Analysis
[11) I will address Issue No. 2:
2- Did the Board err in failing to consider state protection in
objectively assessing the respondent's fear of persecution from
her biological family?
[12] The applicant submits that the Board erred by not assessing the ability of the state to provide protection when assessing whether the respondent's fear of persecution is well founded.
[13] The applicant is arguing that in order for subsection 2(3) of the Immigration Act to apply, the Board has to determine that the respondent, at one time, would have been a Convention refugee. Therefore, the applicant submits that to determine this issue, the Board had to examine whether there was state protection available to the respondent before there was a change of circumstances.
[14] In Singh v. Canada (Minister of Citizenship and Immigration) (1995), 97 F.T.R. 139 (F.C.T.D.), Richard J., as he then was, stated:
Generally, subsection 2(3) applies only to situations involving a determination of changes in circumstances. [Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 at 319 (F.C.A.).] The definition in subsection 2(1) provides that a person is a Convention refugee if the applicant is outside the country of nationality or former habitual residence by reason of a well-founded fear of persecution for one of the enumerated grounds and is unable or unwilling to avail themself of the protection of that country. The basis for a finding of an IFA is a recognition that while an applicant may have a well-founded fear in one part of the country of origin, the applicant does not have a well-founded fear throughout that country. As such, the applicant whose claim is rejected solely on the basis of an IFA is not and never could have been a Convention refugee as defined in subsection 2(1). [Rasaratnam v Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 at 710 (F.C.A.). See also Thirunavukkarasu, supra, note 4 at 592-593.] Since the applicant could not have been a Convention refugee, the applicant cannot cease to be a Convention refugee within the meaning of paragraph 2(2)(e) and, therefore, subsection 2(3) would not apply. A determination based on changes in country circumstances, however, involves a recognition that the applicant might at one time have been a Convention refugee, but is no longer, or has ceased to be, a Convention refugee because the conditions in the country have changed to such an extent as to eliminate the source of the applicant's fear. [Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2 F.C. 739 (F.C.A.).]
[15] The respondent relies on Hassan v. Canada (Minister of Employment and Immigration) (1994), 77 F.T.R. 309 (F.C.T.D.), where Rothstein J. stated:
The question is whether an applicant invoking subsection 2(3) must demonstrate an existing or ongoing fear of persecution both subjectively and objectively. The panel in this case found that such ongoing fear was required. [...]
[...]
To require that, before subsection 2(3) could apply, there would have to be a Convention refugee determination in respect of an applicant, could make the application of subsection 2(3) dependant on timing alone. Hugessen J.A. rejected this approach in Obstoj at page 748:
The exceptional circumstances envisaged by subsection 2(3) must surely apply to only a tiny minority of present day claimants. I can think of no reason of principle, and counsel could suggest none, why the success or failure of claims by such persons should depend upon the purely fortuitous circumstance of whether they obtained recognition as a refugee before or after conditions had changed in their country of origin. Indeed an interpretation which produced such a result would appear to me to be both repugnant and irrational. It would also, as noted, render paragraph 69.1(5)(b) quite incomprehensible.
and as he stated earlier at page 747:
To put the matter another way, subsections 2(2) and 2(3), while at first blush they appear to deal only with the loss of a refugee status which has already been acquired, have in fact been extended by Parliament and incorporated into the definition by means of paragraph (b), so that their consideration forms part of the determination process itself.
Based on Obstoj, I do not think it is necessary for there to be a Convention refugee determination before subsection 2(3) may be applied. Subsection 2(3) may be applied, in an appropriate case, to the Convention refugee determination itself.
I am satisfied, based on Obstoj, that in the case at bar, the Board erred in law by interpreting subsection 2(3) as requiring ongoing fear of persecution. Lest there be some concern that this interpretation of subsection 2(3) detracts from the normal requirement of applicants demonstrating ongoing fear of persecution, it should be recognized, as Hugessen J.A. pointed out in Obstoj, that subsection 2(3) applies only to a tiny minority of present day claimants -those in a special and limited category who can demonstrate that they have suffered such appalling persecution, that their experience alone is a compelling reason not to return them to the country in which they suffered persecution. While many refugee claimants might consider the persecution they have suffered to fit within the scope of subsection 2(3), it must be remembered that the nature of all persecution, by definition, involves death, physical harm or other penalties. Subsection 2(3), as it has been interpreted, only applies to extraordinary cases in which the persecution is relatively so exceptional, that even in the wake of changed circumstances, it would be wrong to return refugee claimants.
[16] However, Heald J. in Hassan v. Canada (Minister of Employment and Immigration) (1992), 147 N.R. 317 (F.C.A.) stated:
It is clear, as the appellant suggests, that subsections 2(2) and 2(3) of the Immigration Act speak to the loss of status as a Convention refugee because of, inter alia, a change in material circumstance in a refugee's home nation. But those provisions in no way alter the test used to initially determine a claimant's status. It is trite law that to establish status as a Convention refugee within the meaning of the Immigration Act, one has to meet both a subjective and objective threshold. One must have a "well-founded fear of persecution". One cannot get to the point of possibly losing one's status as a Convention refugee, i.e. subsections 2(2) and 2(3) cannot be applicable, unless one first falls within the statutory definition contained in subsection 2(1).
[17] From the above cases, I find that the applicant is right in stating that the Board has to examine whether the respondent could have met, at some point in time, the definition of a Convention refugee before determining whether subsection 2(3) could apply.
[18] The issue of state protection is essential to the determination of whether a refugee claimant meets the definition of Convention refugee under section 2 of the Immigration Act.
[19] In Ward, supra, the Supreme Court of Canada explained the test to establish fear of persecution as follows:
It is clear that the lynch-pin of the analysis is the state's inability to protect: it is a crucial element in determining whether the claimant's fear is well-founded and thereby the objective reasonableness of his or her unwillingness to seek the protection of his or her state of nationality. Goodwin-Gill's statement, the apparent source of the Board's proposition, reads a follows, at p. 38:
Fear of persecution and lack of protection are themselves interrelated elements. The persecuted clearly do not enjoy the protection of their country of origin, while evidence of the lack of protection on either the internal or external level may create a presumption as to the likelihood of persecution and to the well-foundedness of any fear.
[...]
[20] More generally, what exactly must a claimant do to establish fear of persecution? As has been alluded to above, the test is bipartite: (1) the claimant must subjectively fear persecution; and (2) this fear must be well-founded in an objective sense. This test was articulated and applied by Heald J.A. in Rajudeen, supra, at p. 134:
The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear.
[21] I conclude that the Board erred in not examining the issue of state protection regarding the respondent's objective fear before there was a change of circumstances.
[22] Therefore it will not be necessary to address the three other issues.
[23] This application for judicial review is allowed, the Board's decision is set aside and the case is sent back to the Board for reconsideration by another panel.
[24] Neither counsel has submitted question for certification.
"Pierre Blais"
JUDGE
CALGARY, Alberta
May 1, 2001
FEDERAL COURT OF CANADA
TRIAL DIVISION
Date: 20010501
Docket: IMM-4580-00
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4580-00
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP
AND IMMIGRATION v.
JESSICA ROBYN DOLAMORE
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: April 30, 2001
REASONS FOR ORDER AND ORDER OF BLAIS, J.
DATED: May 1, 2001
APPEARANCES:
Mr. Brad Hardstaff FOR THE APPLICANT
Ms. Rishma N. Shariff FOR THE RESPONDENT
SOLICITORS OF RECORD:
Morris Rosenberg
Deputy Attorney General of Canada
OTTAWA, Ontario FOR THE APPLICANT
Caron & Partners
CALGARY, Alberta FOR THE RESPONDENT