Date: 19990219
Docket: IMM-2635-98
Between:
ESMERALDA CRUZ HERNANDEZ
Applicant
- and -
THE MINISTER
Defendant
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board, dated April 2, 1998, which determined that the applicant and her husband are not Convention refugees.
[2] This application for judicial review relates to the panel"s decision only insofar as the applicant"s refugee claim is concerned.
[3] The applicant is a citizen of El Salvador. She alleges that due to threats by guerrillas, her father left El Salvador for the United States on March 2, 1985, by himself, leaving his wife and children behind.
[4] In August 1987, the applicant"s brothers also left El Salvador because they were constantly being threatened by guerrillas who wanted to force them to join their organization.
[5] According to the applicant: in 1989, while she was at her parents" house with her mother and cousin, guerrillas entered the home to make it into a headquarters; the guerrillas murdered her cousin when he refused to join them; they threatened to kill the applicant and her mother if they reported what they had seen; after the guerrillas left, the applicant and her mother fled from the family home to go and hide with the applicant"s sister; the applicant, who was 13 at the time, continued her studies until 1992, when she decided to leave the country with her mother to go to the United States to join her father, who was living in New York; in the United States, she made a refugee claim in 1995 that was rejected; she received a work visa that expired in 1996; in 1997, she received a deportation notice for that April; that is when she and her husband left the United States for Canada.
[6] The Refugee Division did not question the applicant"s credibility with respect to the facts related, but did not believe that she had serious grounds for fearing for her safety were she to be returned to her country now, or that there was a serious possibility of persecution.
[7] The panel stated that there was no evidence that the applicant was of serious interest to the guerrillas despite the fact that she had witnessed her cousin"s murder, given that she remained in El Salvador for three years until she left for the United States. In my view, this inference is reasonable, especially since the guerrillas interfered with neither her nor her mother when her cousin was murdered.
[8] The panel also based its decision on the documentary evidence in finding that the current situation in El Salvador had changed since 1992 and that under the circumstances, the applicant no longer faced a serious possibility of persecution.
[9] The applicant chiefly argues that the panel disregarded the contradictory documentary evidence. She asserts that although there have been changes in El Salvador since 1992, that did not justify the panel"s finding that she was no longer in any danger.
[10] In Yusuf v. Canada (M.E.I.),1 the Federal Court of Appeal identified the applicable test for analysing changes in circumstances:
We would add that the issue of so-called "changed circumstances" seems to be in danger of being elevated, wrongly in our view, into a question of law when it is, at bottom, simply one of fact. A change in the political situation in a claimant's country of origin is only relevant if it may help in determining whether or not there is, at the date of the hearing, a reasonable and objectively foreseeable possibility that the claimant will be persecuted in the event of return there. That is an issue for factual determination and there is no separate legal "test" by which any alleged change in circumstances must be measured. The use of words such as "meaningful" "effective" or "durable" is only helpful if one keeps clearly in mind that the only question, and therefore the only test, is that derived from the definition of Convention Refugee in s.2 of the Act: does the claimant now have a well founded fear of persecution? Since there was in this case evidence to support the Board's negative finding on this issue, we would not intervene.
[11] Thus, a change in the political situation in a country of origin is relevant if it helps to objectively determine the possibility that the claimant will be persecuted in the event of return. That is a question of fact for the panel to consider. In this case, the panel cited the peace accords of January 1992, the creation of a national police force under civilian control, the FMLN becoming a political party and the distribution of lands among former army and FMLN combatants, as relevant evidence supporting a finding that the applicant no longer had an objective basis for her fear.
[12] There is, of course, documentary evidence in the record that casts doubt on the effectiveness of the national police and tells of the difficulties El Salvador is experiencing as far as respect for human rights is concerned, but considering the evidence mentioned earlier, it was not unreasonable to find that there was no reasonable chance the applicant would be persecuted in the event of her return to El Salvador. There are therefore no grounds for this Court to intervene. The application for judicial review is dismissed.
[13] Neither counsel submitted a question for certification.
Danièle Tremblay-Lamer
JUDGE
MONTRÉAL, QUEBEC
February 19, 1999.
Certified true translation
Peter Douglas
Federal Court of Canada
Trial Division
Date: 19990219
Docket: IMM-2635-98
Between:
ESMERALDA CRUZ HERNANDEZ
Applicant
-AND-
THE MINISTER
Respondent
REASONS FOR ORDER
| FEDERAL COURT OF CANADA |
| TRIAL DIVISION |
| NAMES OF COUNSEL AND SOLICITORS OF RECORD |
| COURT NO.: IMM-2635-98 |
| STYLE OF CAUSE: ESMERALDA CRUZ HERNANDEZ |
| Applicant |
| AND |
| THE MINISTER |
| Respondent |
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: February 18, 1999 |
| REASONS FOR ORDER OF THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER |
| DATED February 19, 1999 |
| APPEARANCES: |
| Brigitte Poirier for the applicant |
| Thi My Dung Tran for the respondent |
| SOLICITORS OF RECORD: |
| Brigitte Poirier |
| St-Hubert, Quebec for the applicant |
| Morris Rosenberg |
| Deputy Attorney General of Canada |
| Ottawa (Ontario) for the respondent |