Date: 20010418
Docket: IMM-2230-00
Neutral Citation: 2001 FCT 348
BETWEEN:
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] The applicant seeks judicial review of the April 4, 2000 decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") wherein the Board determined that the applicant was not a Convention Refugee.
[2] The issues are whether the Board breached natural justice by failing to properly assess compelling reasons, pursuant to subsection 2(3) of the Immigration Act, R.S.C. 1985, c.I-2, and whether or not the Board erred in making its credibility findings.
[3] The Board appeared to make reluctant credibility findings and give these findings minimal weight. The Board stated at pages 1-2 of its reasons:
The panel accepts that the claimant participated in what she perceived would be a peaceful demonstration on July 8, 1998. Unfortunately, the demonstration turned violent with some demonstrators fighting with the military and the police. The panel also accepts that the claimant may have been arrested along with many other demonstrators as alleged. The claimant described in the narrative portion of her PIF, as well as in her oral testimony, the physical and emotional treatment she endured at the hands of senior officers at the detention centre from July 8 to September 5, 1998. There were some discrepancies with respect to the treatment she received while detained.
[4] The Board was again ambiguous when they assessed her description of the torture and the Board recited certain contradictions in her evidence on how it occurred. The Board then concludes its review of the arrest, detention and torture at page 2 of its reasons:
Notwithstanding, the panel decided to give the benefit of the doubt to the claimant and accepted her evidence that she was incarcerated and detained as she alleged. Thus, the panel had to decide whether compelling reasons would apply in this particular claim.
I note that the word "torture" is not used here, nor in any subsequent part of the decision. The Board made no finding concerning the applicant's claim that the treatment she received constituted torture.
[5] The Board went on to perform an analysis of compelling reasons and stated at page 3 of its reasons:
While the panel is not minimizing the claimant's testimony of what she considered traumatic, it has carefully considered [sub]section 2(3) of the Immigration Act, as well as the Obstoj, Arguello-Garcia and Jiminez cases.
[6] Again, the Board appears to doubt the applicant's testimony. The Board must make clear findings on credibility if it wishes to reject the applicant's testimony. Otherwise, the Board must accept that she was tortured and explain why the torture does not amount to appalling or atrocious persecution.
[7] I also note that the Board goes on to consider the medical and psychological evidence, but devotes half of this analysis to considering the issue of the applicant's delay in getting medical and psychological assistance. If the Board accepts her description of her treatment in Nigeria, the relevance of the apparent delay in seeking medical treatment is unclear, since the medical and psychological reports are consistent with her description of her treatment.
[8] Natural justice requires that the applicant be told why the Board finds that the treatment or torture that she suffered does not constitute appalling or atrocious treatment. This is a difficult task for the Board. As Justice Rothstein stated in Hassan v. Canada (MEI) (1994), 77 F.T.R. 309 (T.D.) at paragraph 11:
While many refugee claimants might consider the persecution they have suffered to fit within the scope of subsection 2(3), it must be remembered that the nature of all persecution, by definition, involves death, physical harm or other penalties. Subsection 2(3), as it has been interpreted, only applies to extraordinary cases in which the persecution is relatively so exceptional, that even in the wake of changed circumstances, it would be wrong to return refugee claimants.
[9] Persecution, by definition, obviously constitutes bad treatment. In a subsection 2(3) analysis, the Board is required to assess whether or not the nature of the persecution in the particular case before it amounts to appalling or atrocious persecution. This requires careful findings of fact in relation to the treatment suffered by an applicant at the hands of her persecutors.
[10] The Board must analyse why the torture, if so found, or other reprehensible treatment, does or does not fit the requirements of subsection 2(3) of the Immigration Act. In Biakona v. Canada (MCI) (1999), 164 F.T.R. 220 (T.D.), Teitelbaum J. stated at paragraphs 45 to 48 that:
[45] These two words mean to me, acts that are vile or revolting. Therefore, it would appear that the Commission is satisfied that the treatment of the applicant during her detention in Zaire in December 1996 was both vile and revolting.__ The Commission is satisfied the applicant's treatment was reprehensible but did not fit the special requirements of subsection 2(3) of the Act without stating why they so concluded.
[46] __The Commission refers to the decision of Obstoj (supra) but does not say why the vile or revolting acts committed upon the applicant do not fit within the "compelling reasons" of subsection 2(3).
[47] __Surely, if the acts are revolting or vile and are reprehensible, the Commission should state, in the circumstances of the present case, why the acts committed cannot be considered compelling reasons. This, the Commission failed to do.
[48] __The application for judicial review is allowed and the matter is returned to be heard before a newly appointed Board.
ORDER
[11] For these reasons, the application for judicial review is allowed. The April 4, 2000 decision of the Board is quashed and the matter is returned to a differently constituted Board for redetermination in a manner not inconsistent with these reasons.
[12] The applicant sought the certification of a question, however this question is inextricably linked to the particular facts of this case. Accordingly, the question does not meet the test for certification.
"W.P. McKeown"
Ottawa, Ontario