Date: 19971120
Docket: IMM-540-97
BETWEEN:
XIOMARA DEL SOCORRO AGUILAR-OSORNO
KEVIN MANUEL ARGUELLO
ANNIE MARIA ARGUELLO
TATIANA AMALIA ARGUELLO and
TAMARA ESMERALDA ARGUELLO
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] The applicants, a mother and her four teenage children, are citizens of Nicaragua. The eldest child is now nineteen. The husband and father of this family, currently 66, was physically abusive towards his spouse. This abuse continued over a number of years until September 1986, when the mother fled to Miami, Florida where she was joined by her children some months later. She claims to have sought political asylum shortly after her arrival in the United States. While in the U.S., she was employed as a cashier and a factory worker. She received no financial support from her husband in raising her family. In 1995, when the mother was told that her husband was in Miami looking for her, the family left Florida to enter Canada. The applicants immediately sought refugee status in Canada.
[2] The applicants challenge the negative determination of the Convention Refugee Determination Division on two grounds: (a) the decision was handed down while the applicants' counsel was still investigating whether a formal application for refugee status had been filed on their behalf in the United States; and (b) the tribunal erred in concluding that the country conditions in Nicaragua had significantly changed to the point where the mother and her eldest child had no objective basis for a well-founded fear of persecution and, more particularly, when protection was available to the victims of spousal abuse.
[3] On the first issue, counsel for the applicants was afforded an additional period of six to eight weeks from the last hearing date to file supplementary evidence concerning the status of the applicants' refugee claim, if any, in the United States. Some six weeks after the hearing, the counsel forwarded an interim reply to the tribunal and added: "I ask that the matter remain open for the possible adducing of further evidence and/or submissions." Slightly more than three months later, the tribunal's decision was issued. During that three-month period, there were no further communications between the tribunal's staff and the applicants' counsel.
[4] Perhaps because the proof was inconclusive, the tribunal dealt with the issue of the applicants having filed for refugee status in the alternative. If, in the words of the tribunal, "... she did not apply as the documentary evidence suggests ...", her failure to do so over nine years would put into serious question her subjective fear of persecution. On the other hand, "[e]ven if the panel accepts, as she orally testified, that she did apply for status in the U.S. as early as February 1987, ... she can be considered a former habitual resident of the U.S." After noting the documentary evidence of a substantial backlog in the processing of some 24,000 Nicaraguan refugee claims, the tribunal concluded that the applicants' U.S. refugee claims were not yet extinguished or finalized.
[5] The tribunal did deal with the issue of the applicants having sought refugee status in the U.S. as if the applications had been filed. Counsel for the applicants could have confirmed no more than this upon completion of his investigation. The tribunal staff's not communicating with the applicants' counsel prior to the handing down of the decision after the file had been kept in abeyance for some three months does not, in my opinion, constitute a breach of natural justice and procedural fairness. The time limit set by the panel members at the end of the hearing could not be unilaterally and indefinitely extended by counsel for one of the parties, particularly in the absence of any further communication.
[6] Similarly, I find no reviewable error in the tribunal's appreciation of the evidence. It may have been preferable for the tribunal to accept the mother's credibility without qualification rather than to have done so "on a balance of probabilities". Also, a review of the transcript discloses no oral testimony to support the tribunal's statement that the mother moved to Canada not to seek refuge from the harm she might suffer from her husband, "but apparently because she was afraid that her work permit had been, or would be, affected by the new rules in the U.S." Here, the tribunal appears to have relied upon an article from the New York Times edition of March 21, 1995 concerning new rules to deny work permits to refugee claimants whose cases were under review. Neither of these points constitutes a reviewable error.
[7] The tribunal's conclusion that the claimants had no objective well-founded fear is based on its appreciation of the documentary evidence of the changes in circumstances, particularly with respect to the protection now available to the victims of spousal abuse in Nicaragua and on its belief that her husband at his current age will not pursue her after a period of approximately twelve years of no communication. I am satisfied that in reaching this conclusion, the panel accepted the mother's continuing subjective fear of her abusive spouse. This was the basis of its recommendation that the appropriate authorities consider the family's humanitarian and compassionate grounds for remaining in Canada. It was still open to the tribunal, on the basis of the documentary evidence, to conclude that there exists no serious possibility of persecution upon the family's return to Nicaragua in the absence of an objective basis for a well-founded fear.
[8] While sharing the tribunal's concern that the applicants' humanitarian and compassionate grounds receive their due consideration from the respondent, I have not been convinced that the decision under judicial review discloses any error in law or in fact within the meaning of section 18.1 of the Federal Court Act. Accordingly, this application for judicial review is dismissed. Neither party suggested the certification of a question.
Judge
Ottawa, Ontario
November 20, 1997