Mahmoud v. Canada ( Minister of Employment and Immigration )
A-237-92
Nadon J.
26/10/93
15 pp.
Application for judicial review of Immigration and Refugee Board decision applicant not Convention refugee -- Applicant born in Eritrea, province of Ethiopia -- Since 1961 "ongoing war" between Ethiopian government and Eritrean Liberation Front (ELF), of which applicant member -- In response to increased activities of Eritrean guerrillas, Ethiopian Army seizing power in 1974 -- After escaping Ethiopian soldiers in May, 1975 applicant fleeing to Saudi Arabia where worked until 1991 when work permit not renewed -- Arriving in Canada by way of Fort Erie on February 8, 1991 -- In July 1991, following overthrow of military regime, transitional Ethiopian government formed under leadership of Ethiopian People's Revolutionary Democratic Front (EPRDF) -- Secession of Eritrea from Ethiopia goal of Eritrean People's Liberation Front (EPLF) which controls Eritrea, but undertaking secession will not occur until referendum held in 1993 -- Applicant claiming refugee status based on nationality, political opinion, membership in particular social group -- Remaining active in ELF while in Saudi Arabia -- Indicating EPLF considering him as enemy -- Board holding only issue whether substantial change in circumstances in Ethiopia and Eritrea -- Holding applicant's fear of Ethiopian Armed Forces alleviated by change in circumstances in Ethiopia and Eritrea, namely fall of military regime -- Holding applicant's fear of persecution by EPLF not "objectively" justified -- Applicant arguing change in country conditions must be permanent, formal, effective and enduring -- Arguing Board could not find change in government permanent when transitional government only established in July, 1991 and hearing taking place in August, 1991 -- Also arguing since EPLF setting up de facto state in Eritrea, Board should have considered Eritrean nationality as issue instead of examining Ethiopia as whole -- Application allowed -- Board erred in law by not applying proper test for consideration of changing country conditions -- Finding changes in circumstances of enduring nature could not possibly have been made based on evidence before it -- Proper test for changing country conditions set out in The Law of Refugee Status by James Hathaway (Toronto: Butterworths, 1991) -- (1) Changes must be of substantial political significance in sense power structure under which persecution deemed real possibility no longer existing -- (2) Must be reason to believe substantial political change truly effective -- (3) Change of circumstances must be shown to be durable -- Although test proposed in context of cessation of Convention refugee status, nature of changing circumstances of country equally applicable in Convention refugee application -- Cuadra v. Canada (Solicitor General) (1993), 157 N.R. 390 (F.C.A.) and Ahmed v. Minister of Employment and Immigration (1993), 156 N.R. 221 (F.C.A.) adopting essence of Hathaway's test -- Disagreeing with Boateng et al. v. Minister of Employment and Immigration (1993), 65 F.T.R. 81 (F.C.T.D.) wherein Hathaway test rejected and Tawfik v. Canada (Minister of Employment and Immigration), 93-A-311, MacKay J., judgment dated 23/8/93, 5 pp., F.C.T.D., not yet reported, agreeing with Boateng -- Hathaway's test not opposed to reasoning of Pratte J.A. in Mileva v. Canada (Minister of Employment and Immigration), [1991] 3 F.C. 398 (C.A.) -- Pratte J.A. stating Court must determine whether change in country circumstances such that applicant "at the time his claim is being decided, has good grounds to fear persecution in the future" -- Cannot be determined grounds to fear persecution in future no longer exist unless change in circumstances, as evaluated at time of Board hearing, significant, effective, durable -- Some reasonable period of time must pass to permit trier of facts to assess changing conditions and consequences -- Since transitional government established in Ethiopia in July, 1991 and Board heard applicant in August, 1991, Board could not conclude change in circumstances of enduring nature -- Evidence not supporting finding changes significant, effective from applicant's perspective -- Change in circumstances in Ethiopia and Eritrea not meeting any of requirements of Hathaway's test -- Also disagreeing with Villalta v. Canada (Solicitor General), A-1091-92, Reed J., judgment dated 8/10/93, 9 pp., F.C.T.D., not yet reported, wherein Hathaway's test accepted, except for extent of proof to be adduced -- Reed J. holding degree of proof necessarily higher in cessation case as ultimate objective to remove Convention refugee status -- No difference whether dealing with cessation situation or application for Convention refugee -- Determining factor that decision change in country conditions meaning person will be sent back to country of origin -- Person seeking Convention refugee status should not be in less favourable position than subject of cessation hearing -- Immigration Act, R.S.C., 1985, c. I-2, s. 2(1) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1).