Bibomba v. Canada ( Minister of Citizenship and Immigration )
IMM-1706-98
Teitelbaum J.
23/3/99
20 pp.
Application for judicial review of IRB Refugee Division decision applicants, mother and son citizens of Congo, not Convention refugees-Mother claiming she, husband and brother experienced persecution while in Zaire as brother suspected of being spy for opposition and as mother member of opposition political party (UDPS) in Canada-Refugee Division denied applicants refugee status on basis evidence, given change in circumstances in Democratic Republic of Congo, did not establish reasonable chance or possibility of persecution should applicants return to Congo-Issues whether Commission erred in finding that, given change of circumstances in new Congo, applicants' fear not wellfounded and unreasonable; whether Commission misapplied test under Immigration Act, s. 2(3) and erred by failing to analyze whether persecution suffered warranted application of s. 2(3); whether Commission erred in failing to take into consideration medical report in its assessment of objective basis of applicant's fear; whether Commission erred in law in finding applicant's fear of persecution not well-founded on basis of adherence to political party in Canada; whether Commission erred in finding unlikely that applicant, in light of political profile in Zaire, would be targeted by authorities now in place; whether Commission erred in assessing evidence and in concluding treatment received between 1993 and 1996 not persecutory-Application allowed-Despite respondent's submission open to Commission to conclude changes in circumstances such that it made applicant's fear unreasonable and unfounded given that new regime not expected to persecute those suspected of being its supporters under former regime, Commission failed to properly put its mind to issue of whether recent changes in circumstances such that applicant should no longer fear persecution if she were to return to Congo, thereby committing reviewable error-Issue of whether person's experience amounting to "compelling reasons" under Act, s. 2(3) question of fact for Commission's determination-Commission had duty to consider level or atrocity of acts inflicted upon applicant, repercussion upon physical and mental state, and determine whether this experience alone constituted compelling reason not to return her to country of origin: Shahid v. Canada (Minister of Citizenship and Immigration) (1995), 28 Imm. L.R. (2d) 130 (F.C.T.D.)-Commission erred in not considering medical report because of Board's conclusion acts committed upon applicant did not bring Act, s. 2(3) for consideration-Commission satisfied applicant's treatment in Zaire reprehensible but did not fit special requirements of Act, s. 2(3), but failed to state why it so concluded-Refugee claimants cannot use as reason for fear of returning to country of citizenship fact politically active while in Canada and thus should not be returned to country of citizenship-Immigration Act, R.S.C., 1985, c. I-2, s. 2(3).