Hassan v. Canada ( Minister of Employment and Immigration )
A-653-92
Rothstein J.
4/5/94
7 pp.
Application for judicial review of Immigration and Refugee Board's decision applicants, citizens of Somalia, not Convention refugees -- Whether applicant invoking Immigration Act, s. 2(3) must demonstrate existing or ongoing fear of persecution both subjectively and objectively -- In Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (C.A.) test to apply in usual case of interpretation of s. 2(3): if applicant has reasonable or serious possibility of suffering persecution if returned to country of origin -- Test to apply in exceptional circumstances (where claimants suffered such appalling persecution that experience alone compelling reason not to return them even though no longer any objective reason to fear further persecution): s. 2(3) should apply to anyone who has been recognized as refugee at any time: Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2 F.C. 739 (C.A.) -- Convention refugee determination not necessary before s. 2(3) may be applied -- Board erred in law by finding Act, s. 2(3) requiring existing fear, both objectively and subjectively -- Act, s. 2(3) applying only to tiny minority of present day claimants, those in special and limited category who can demonstrate suffered persecution, experience alone compelling reason not to return to country where suffered persecution -- Nature of persecution involving death, physical harm or other penalties -- S. 2(3) applying to extraordinary cases in which persecution relatively exceptional, that even in wake of changed circumstances, would be wrong to return refugee claimants -- Application granted -- Immigration Act, R.S.C., 1985, c. I-2, s. 2(3).