Date: 20050121
Docket: IMM-773-04
Citation: 2005 FC 71
Ottawa, Ontario, January 21, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
CEBALLOS, SHADIAH CEBALLO
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (panel) dated December 29, 2003, pursuant to subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27. In that decision, the panel determined that the applicant does not qualify as a "Convention refugee" under section 96 or as a person in need of protection under section 97.
ISSUE
[2] Did the panel make a patently unreasonable error in finding that the applicant had not succeeded in establishing that she had a well-founded fear of persecution?
[3] For the following reasons, I answer this question in the negative and I will therefore dismiss this application for judicial review.
BACKGROUND
[4] The applicant is 23 years old and is a citizen of the Philippines. She alleges that she has a well-founded fear of persecution and that her life would be at risk if she were to return to her country.
IMPUGNED DECISION
[5] The panel did not find that the applicant's story was credible.
ANALYSIS
[6] The test to satisfy to establish a well-founded fear of persecution was stated by La Forest J., in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689 at page 723 and reiterated in Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R.. 593 at paragraphs 119 and 120 :
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. . . .
[7] In the Handbook on Procedures and Criteria for Determining Refugee Status (Geneva, 1979) prepared by the United Nations, the expression "well-founded fear of persecution" is explained:
38. To the element of fear - a state of mind and a subjective condition--is added the qualification "well-founded". This implies that it is not only the frame of mind of the person concerned that determines his refugee status, but that this frame of mind must be supported by an objective situation. The term "well-founded fear" therefore contains a subjective and an objective element, and in determining whether well-founded fear exists, both elements must be taken into consideration.
[8] Although Canada is not bound by this document, it is nonetheless very persuasive. More than a "mere possibility" of fear of persecution must be established (Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.)). The applicable test is therefore establishing a "reasonable chance" or a "serious possibility" of fear of persecution (R. v. Secretary of State for the Home Department, ex parte Sivakumaran, [1988] 1 All E.R. 193 (H.L.)).
[9] In Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 at pages 316 and 317 (F.C.A.)), the Federal Court of Appeal determined that nobody is in a better place than the panel to weigh and assess the evidence. Accordingly, the Court must not substitute its opinion for that of the decision-maker unless the applicant is able to establish that that decision is patently unreasonable.
First requirement: Does the applicant have a well-founded subjective fear?
[10] The applicant stated that she left her country in June 2000 to distance herself. She wanted to visit Canada, study and eventually return to the Philippines. The applicant did not fear for her life despite the fact that she had been physically assaulted and threatened by her cousins who wanted money from her (page 412 of the Tribunal Record). She acknowledged that she has not been in contact with her cousins since June 2000 and that there has been no direct threat to her life.
[11] It was her mother who told her that she would be persecuted if she were to return to her country. However, her mother herself, who is still living in Kuwait, returned to the Philippines for her sister's funeral in June 2003. All went well and she was not bothered by her nephews despite the fact that they were furious that she had not sent them any money since January 2003 (page 409 of the Tribunal Record). According to the applicant, these are the individuals persecuting her.
[12] The Board found that these elements did not establish a serious or real fear of persecution. The Court does not intend to intervene on this point.
Second requirement: Is the applicant's subjective fear objectively well-founded?
[13] Based on the documentary evidence, the Board found that there was no evidence of the applicant having an objective fear of persecution. This evidence supports the panel's finding. Again, I see no grounds here for the Court's intervention.
[14] The parties declined to submit serious questions of general importance and none are raised in this case. Therefore, no question will be certified.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed. No question is certified.
"Michel Beaudry"
Judge
Certified true translation
Kelley A. Harvey, BCL, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-773-04
STYLE OF CAUSE: CEBALLOS, SHADIAH CEBALLO v. MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: December 2, 2004
AND ORDER: THE HONOURABLE MR. JUSTICE BEAUDRY
DATE OF REASONS: January 21, 2005
APPEARANCES :
Marc Chénard FOR THE APPLICANT
Diane Lemery
FOR THE RESPONDENT
SOLICITORS OF RECORD:
Marc Chénard FOR THE APPLICANT
Montréal, Quebec
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT