Date: 20000405
Docket: IMM-3450-99
BETWEEN:
KASHMEER SINGH MANDAR
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] In the present case, the Convention Refugee Determination Division ("the CRDD") made a finding that both subjective and objective fear of persecution existed at the time the applicant left India in 1994. However, the CRDD also found that changes in the conditions in the Punjab are sufficient to remove the applicant"s objective fear of persecution. I find no reviewable error with respect to these findings.
[2] The only issue in the present judicial review is with regard to the application of
s. 2(3) of the Immigration Act . In this respect, the CRDD said this:
| The Panel is not satisfied the above facts constitute "appalling" and "atrocious" incidents. Set against the events that Section 2(3) of the Act was initially created for and the subsequent cases where "compelling reasons" were found to exist, it is the panel"s opinion they fall short of the criteria envisaged in the jurisprudence. In the panel"s opinion the facts of this case are not "extraordinary" or "appalling" and "atrocious". The panel believes this applies to both the experiences of the claimant and those of his family, taken individually and collectively. |
| With regard to the psychological report, the panel was guided by Jiminez, wherein, Justice J. Rouleau states: |
| I do not think any of the jurisprudence (Obstoj, Arguello-Garcia) suggests a further test of continuing psychological after-effects. |
| Therefore, the panel does not believe that the psychological report carries any weight in its analysis of the existence of "compelling reasons". |
| Accordingly, based on the "objective factors alone" the panel determined that the claim at hand does not warrant invoking Section 2(3) of the Immigration Act.1 |
[3] In my opinion, the proper test respecting s. 2(3) has not been applied. In my opinion, the proper test is that stated by Noël J. in Shahid v. Canada (Minister of Citizenship and Immigration) (1995) 89 F.T.R. 106 at paragraph 25:
| It seems clear, having regard to Obstoj and Hassan, supra, that the Board erred in construing s. 2(3) as requiring ongoing fear of persecution. The Board, once it embarked upon the assessment of the applicant"s claim under s. 2(3), had the duty to consider the level of atrocity of the acts inflicted upon the applicant,the repercussions upon his physical and mental state , and determine whether this experience alone constituted a compelling reason not to return him to his country of origin. That it failed to do... [Emphasis added.] |
[4] I find that the CRDD"s failure to apply the test as just stated constitutes reviewable error.
ORDER
[5] Accordingly, the CRDD"s decision is set aside and the matter is referred back for reconsideration with the following directions that:
| 1. The original panel be reconstituted to consider evidence and argument respecting the applicability of s. 2(3) only; and |
| 2. If the panel cannot be reconstituted, the matter be referred to a newly constituted panel to consider evidence and argument respecting the applicability of s. 2(3) only, and the newly constituted panel shall be bound by all other findings of the original panel; and |
| 3. The test to be applied on reconsideration of the applicability of s. 2(3) be that stated by Noël J. at paragraph 25 of the decision in Shahid v. Canada (Minister of Citizenship and Immigration) as above quoted. |
"Douglas R. Campbell"
J.F.C.C.
Toronto, Ontario
April 5, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: KASHMEER SINGH MANDAR |
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
| DATE OF HEARING: TUESDAY, APRIL 4, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR ORDER
| AND ORDER BY: CAMPBELL J. |
| DATED: WEDNESDAY, APRIL 5, 2000 |
| APPEARANCES: Mr. Lorne Waldman |
| SOLICITORS OF RECORD: Jackman, Waldman & Associates |
Barristers & Solicitors
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
Morris Rosenberg
Deputy Attorney General of Canada
FEDERAL COURT OF CANADA
Date: 20000405
Docket: IMM-3450-99
Between:
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
__________________
1Applicant"s Application Record, page 12.
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