Digests

Adjibi v. Canada (Minister of Citizenship and Immigration)

IMM-2580-01

2002 FCT 525, Dawson J.

8/5/02

17 pp.

Judicial review of CRDD's denial of claim to refugee status--Applicants 29-year-old citizen of Congo and her two children--After husband arrested in late 1994 or early 1995, Congolese officials ransacked home, pushed children around, raped adult applicant--Eventually relocated to South Africa where granted refugee status--Raped by two policemen, who ransacked home, hit children, threatened to return--Believes these men took eldest son whom has not seen since-- Applicants left South Africa immediately--CRDD believing applicant, but noting positive developments in Congo since change of government in 1997, and noting applicant having no news with respect to situation vis-à-vis current government-- Not persuaded reasonable chance or serious possibility would be persecuted based on Convention ground should applicants return to Congo--Found insufficient evidence claimant's persecution sufficiently "atrocious", "appalling" to warrant application of Immigration Act, s. 2(3)--S. 2(2)(e) providing person ceases to be Convention refugee when reasons for fear of persecution in country person left, or outside of which person remained, ceased to exist--S. 2(3) providing person not ceasing to be Convention refugee by virtue of s. 2(2)(e) if establishing compelling reasons arising out of any previous persecution for refusing to avail himself of protection of country outside of which remained by reason of fear of persecution--Convention Relating to the Status of Refugees, Art. 1C(5) genesis of s. 2(3)--Explained in United Nations High Commissioner for Refugees' Handbook on Procedures and Criteria for Determining Refugee Status, cl. 136: person who suffered under atrocious forms of persecution should not be expected to repatriate even though change of regime as may not always produce complete change in attitude of population or in mind of refugee--Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2 F.C. 739 (C.A.); Yamba v. Canada (Minister of Citizenship and Immigration) (2000), 254 N.R. 388 (F.C.A.) considering s. 2(3)--Generally case law of F.C.A. holding "compelling reasons" arising out of past persecution which can be characterized as "atrocious" or "appalling"--Application allowed--(1) CRDD not erring in applying test of whether prior persecution sufficiently "atrocious", "appalling"-- Sufficient that in view of evidence before CRDD, nature of submissions made to it on applicants' behalf, words "appalling", "atrocious" proper interpretive aids to guide CRDD as to whether documentary, oral evidence, supporting applicants' submission compelling reasons existed not to return them to Congo--(2) Immigration Act, s. 69.1(11) requiring CRDD to give written reasons--Must be sufficiently clear, precise, intelligible that claimant might know why claim failed, decide whether to seek leave for judicial review-- CRDD not mentioning psychiatric assessment in evidence which concluded adult applicant suffered from post-traumatic stress disorder--Reasons insufficient--Having found adult applicant to have suffered persecution, unclear what CRDD meant when spoke of "insufficient evidence"--Persecution by definition requiring maltreatment which rises to level of serious harm--Meaningful reasons requiring sufficiently intelligible explanation as to why persecutory treatment not constituting compelling reasons--Requiring thorough consideration of level of atrocity of acts inflicted upon applicant, effect upon applicant's physical, mental state, whether experiences, and their sequela constituting compelling reason not to return applicant to country of origin --CRDD's failure to provide meaningful reasons reviewable error--Although determinative, appropriate to address balance of submissions--(3) While not fatal for CRDD to fail to mention medical reports if reasons otherwise reflecting proper grasp, consideration of evidence, failure to discuss medical evidence example of CRDD's failure to adequately discuss, consider evidence in reasons--Similarly no indication CRDD considered adult applicant's treatment by South African police--CRDD not obliged to consider s. 2(3) in relation to incidents in South Africa--Persecutory treatment in another country cannot justify refusal to avail oneself of protection of one's home country--But persecutory events not being persecutory treatment in one's home country may exaggerate or amplify effect of persecutory conduct--CRDD must take refugee claimant as is at time of hearing in order to determine whether claimant should not be expected to repatriate-- Medical reports detailed current medical condition as result of rapes in both Congo, South Africa--CRDD should have had regard to cumulative effect of those events upon adult applicant when considering if, in that present state, adult applicant has compelling reasons for refusing to return to Congo--(4) CRDD not mentioning children in s. 2(3) analysis --UNHCR Handbook recognizing persecution of family member may be such as to make it unreasonable to expect refugee claimant to repatriate--Given that, together with fact CRDD dismissing claims of all of applicants on basis of changed country conditions, and legal requirement CRDD obliged to consider applicability of s. 2(3) once relies upon change in country condition to deny refugee status (Yamba), follows that CRDD erred in law in failing to consider application of s. 2(3) to each applicant--CRDD to determine whether infant claimants could meet threshold established by case law--(5) Baker v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.) dealing with need to consider best interests of child in context of humanitarian and compassionate application--Ranganathan v. Canada (Minister of Citizenship and Immigration), [2001] 2 F.C. 164 (C.A.) cautioning that the more humanitarian grounds allowed to enter into determination of refugee claim, the more refugee procedure blending into humanitarian and compassionate procedure with consequence concept of persecution in definition of refugee would be replaced in practice by concept of hardship, which was not Parliament's intent--CRDD committing no reviewable error in failing to take into account best interests of child when inquiring as to whether children have compelling reasons arising out of previous persecution for refusing to avail themselves of protection of Congo--Immigration Act, R.S.C., 1985, c. I-2, ss. 2(2)(e) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1), (3) (as am. idem), 69.1(11) (as am. by S.C. 1992, c. 49, s. 60)-- United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1C(5).