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A-633-80
Francisco Humberto Gonzalez Galindo (Appli- cant)
v.
Minister of Employment and Immigration (Respondent)
Court of Appeal, Urie and Ryan JJ., Kelly D.J.— Toronto, February 23, 1981.
Judicial review Immigration Application to review and set aside decision of Immigration Appeal Board that applicant's testimony as to his detention and torture was exaggerated in view of his minimal involvement in politics Application allowed The extent of applicant's political involvement has no necessary relationship to the well-founded fear of further detention and persecution that the physical and emotional disabilities suffered by the applicant would lead him to anticipate Applicant entitled to respond to certain information relied on by the Board and obtained in other hearings Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 Immigration Act, 1976, S.C. 1976-77, c. 52, s. 71(2).
APPLICATION for judicial review. COUNSEL:
Nancy Goodman for applicant. R. Levine for respondent.
SOLICITORS:
Knazan, Jackman & Goodman, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment of the Court delivered orally in English by
URIE J.: We are all of the opinion that this section 28 application must succeed.
A careful reading of the reasons for judgment of the Immigration Appeal Board indicates that the Board was of the opinion that testimony of the applicant as to his detention and torture over a period of two years, followed by shorter periods of detention twice a year in subsequent years, was exaggerated "taking into consideration the mini mal involvement in politics before September 1973". In so concluding the Board appears to have
ignored the evidence of the independent medical witnesses as to the nature of the physical and emotional disabilities suffered by the applicant which those witnesses found to be compatible with the history of torture and detention related by the applicant. In our view, this evidence indicates that the extent of the political involvement of the appli cant has no necessary relationship to the well- founded fear of further detention, torture and persecution that disabilities of the type suffered by the applicant would lead him to anticipate. This ground alone is sufficient to remit the matter for reconsideration.
In this case, in addition, the Board relied on certain information it had obtained in other hear ings relating to Chile. This information was relied on in a manner adverse to the applicant. The information was not the sort of information of which judicial notice could be taken in proceedings before a court nor was it of the general character well known to the Board and to the public referred to in the Maslej case.' If the kind of information used in this case, which appears to be of a type which an applicant might well be in a position to contest, is to be relied upon by the Board in a hearing pursuant to subsection 71(2) of the Immi gration Act, 1976, S.C. 1976-77, c. 52, natural justice requires that the applicant be entitled to respond to it just as he would to evidence adduced at the hearing.
The application will, therefore, be allowed, the order of the Immigration Appeal Board dated September 8, 1980, will be set aside and the matter will be referred back to the Board, prefer ably to be heard, by a panel thereof differently constituted, for disposition in a manner not incon sistent with these reasons.
° [1977] 1 F.C. 194.
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