Date: 19981207
Docket: IMM-3840-97
BETWEEN:
SEBASTIAN SWATANDRA SINGH and
SASHI KANTA SINGH
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
NADON, J.
[1] The Applicants seek to set aside a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated August 13, 1997, which denied their claim to refugee status in Canada.
[2] The Applicants are citizens of Fiji. They are of Indo-Fijian ancestry. They arrived in Vancouver in June 1995 and, shortly thereafter, claimed refugee status. The male Applicant bases his claim of a well-founded fear of persecution on the grounds of political opinion and racial prejudice. The female Applicant's (his wife) claim is dependant on that of her husband.
[3] The Board concluded that the male Applicant, and hence his wife, did not have a well-founded fear of persecution. At pp. 7 and 8 of its reasons, the Board states the following:
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"At the outset of the hearing a wide variety of issues was [sic] identified, based on the Screening Form [footnote omitted] and additions by counsel and panel members. Extensive evidence was adduced on these, particularly on the question of whether or not there has been a meaningful change in country conditions, especially in light of the Constitutional Amendment Bill passed by the Fijian parliament in January, 1997 [footnote omitted]. After considering all of the evidence, however, only one issue remains relevant and determinative. That is the objective basis of the claim. |
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The documentary evidence shows that the two military coups of 1987 provided a political environment in which the principal claimant, a supporter of the deposed FLP - NFP coalition and the personal driver of a high-profile leader and power-broker, could well be subject to political persecution. Had the principal claimant come to Canada in 1987 and sought asylum along with Sylvester Joseph, his claim may have had a similar positive outcome. But he remained in Fiji. While he suffered further related incidents of persecution in March, 1988 and January, 1989, since that time there has been no objective basis for his claim of persecution. |
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Five years passed during which the principal claimant had a transitional period of manual labour, but succeeded in finding a new position. |
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The limited scope of his efforts to leave Fiji in this period undermine a claim of subjective fear. Had he been afraid of political and racial persecution, he would have followed the example of his close associate, Sylvester Joseph, and come to Canada for refuge. |
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Mr. Joseph's return visit to Fiji in 1994 prompted the security service briefly to renew its interest in the principal claimant, but when he was taken in for questioning he was not detained or beaten in the earlier persecutory manner. |
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In plain terms, the principal claimant stayed in Fiji well beyond the time when he could have been determined to be a Convention refugee. He has not had a well-founded fear of persecution since 1989. |
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For the sake of completeness, because counsel raised the issue, the panel considers that section 2(3) of the Act does not apply because what the principal claimant suffered in 1987-89 does not meet the high threshold of "atrocious" and "appalling".1 So there are no "compelling reasons" why he and his wife cannot return to Fiji."
[4] The Board recognized that with respect to events which took place in 1987 through to 1989, the male Applicant would probably have had good grounds to seek refugee status in Canada. However, in the opinion of the Board, the events which took place between 1989 and 1995 are not such that they support the male Applicant's belief that he will be persecuted should he return to Fiji. On the evidence before the Board, that conclusion is not unreasonable.
[5] The Board was also of the view that the male Applicant had not made a serious attempt to leave Fiji between 1987 and 1995. The Board stated that this finding undermined the male Applicant's subjective fear of persecution. Again, on the evidence before the Board, I cannot conclude that this finding is unreasonable.
[6] The last issue for determination is whether the Board erred in concluding that the male Applicant could not, in the circumstances of this case, invoke ss. 2(3) of the Immigration Act (the "Act")2, which provides as follows:
"A person does not cease to be a Convention refugee ... if the person establishes that there are compelling reasons arising out of any previous persecution for refusing to avail himself of the protection of the country that the person left, or outside of which the person remained, by reason of fear of persecution."
[7] The Board concluded that there were no "compelling reasons" for the male Applicant not to be returned to Fiji. In reaching this conclusion, the Board referred to the decision of the Federal Court of Appeal in Obstoj (supra). In that case, Mr. Justice Hugessen, speaking for the majority, stated at p. 748 that:
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"It is hardly surprising, therefore, that it should also be read as requiring Canadian authorities to give recognition of refugee status on humanitarian grounds to this special and limited category of persons, i.e. those who have suffered such appalling persecution that their experience alone is a compelling reason not to return them, even though they may no longer have any reason to fear further persecution. |
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The exceptional circumstances envisaged by subsection 2(3) must surely apply to only a tiny minority of present day claimants. I can think of no reason of principle, and counsel could suggest none, why the success or failure of claims by such persons should depend upon the purely fortuitous circumstance of whether they obtained recognition as a refugee before or after conditions had changed in their country of origin. Indeed an interpretation which produced such a result would appear to me to be both repugnant and irrational. It would also, as noted, render paragraph 69.1(5)(b) quite incomprehensible.".
[8] In Hassan v. Minister of Employment and Immigration (1994), 77 F.T.R. 309 (T.D.), Mr. Justice Rothstein had occasion to apply ss. 2(3) of the Act. He explained the subsection, at p. 312, in the following terms:
"I am satisfied, based on Obstoj, that in the case at bar, the Board erred in law by interpreting s. 2(3) as requiring ongoing fear of persecution. Lest there be some concern that this interpretation of s. 2(3) detracts from the normal requirement of applicants demonstrating ongoing fear of persecution, it should be recognized, as Hugessen, J.A., pointed out in Obstoj, that s. 2(3) applies only to a tiny minority of present day claimants - those in a special and limited category who can demonstrate that they have suffered such appalling persecution, that their experience alone is a compelling reason not to return them to the country in which they suffered persecution. While many refugee claimants might consider the persecution they have suffered to fit within the scope of s. 2(3), it must be remembered that the nature of all persecution, by definition, involves death, physical harm or other penalties. Section 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] In Shahid v. Minister of Employment and Immigration (unreported decision, dated 15 February 1995, in File No. IMM-6907-93), Noël, J. set aside the Board's decision on the ground that, in construing ss. 2(3) of the Act, the Board had required an ongoing fear of persecution. This, according to Noël, J., was an error. I cannot but agree. At the end of the hearing, the respondent asked Noël, J. to certify the following question: what is the meaning and import of the expression "compelling reasons" found in paragraph 2(3) of the Immigration Act?". Mr. Justice Noël's response was as follows:
| "I believe that the legal underpinning of ss. 2(3), insofar as the considerations relevant to the ascertainment of "compelling reasons" are concerned, has been clearly identified by the Court of Appeal in Obstoj, supra. What remains is the determination in each instance as to whether the facts give rise to its application. Thus the issue stands to be decided on the facts of each case. The certification of the question is therefore denied." |
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[10] I agree entirely with Noël, J. that determining whether, in a given case, there are "compelling reasons" requires the Board to make a finding of fact. In this case, the Board found, as a fact, that there were no "compelling reasons" so as to conclude that the Applicant and his wife should not return to Fiji.
[11] In my view, on the record before the Board, this finding is not unreasonable and therefore I cannot agree with the Applicants that the Board committed a reviewable error. For these reasons, the male Applicant's application for judicial review shall be dismissed. Hence, as the female Applicant bases her claim entirely on that of her husband, her application shall also be dismissed.
"MARC NADON"
JUDGE
Ottawa, Ontario
December 7, 1998
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1 Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2 F.C. 739 (C.A.); (1992), 93 D.L.R. (4th) 144 (F.C.A.).
2 Immigration Act, R.S.C. 1987, c. I-2, s. 2(3).
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