Date: 20000824
Docket: IMM-4707-99
BETWEEN:
HASAN KULLA
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MACKAY J.
[1] These reasons confirm those rendered orally at the conclusion of the hearing on this application for judicial review held at Toronto, Ontario, on August 23, 2000.
[2] At the conclusion of the hearing I ordered that the impugned decision, which held the applicant not to be a Convention refugee, be set aside and that his application be referred back for reconsideration by a differently constituted panel.
[3] The applicant is a 56 years old man from Albania who arrived in Canada in February 1988 on a visitor"s visa. Subsequently he applied to be considered a Convention refugee. When that claim came to be considered, the CRRD panel in its decision of August 31, 1999, noted that:
The panel accepts that the claimant and his family were persecuted by the former communist regime, but it does not accept that the claimant would be persecuted by the present socialist regime.
[4] After reviewing the evidence before it, the panel set forth at page 4 of its decision the following:
... We, therefore, do not find the claimant to have a well-founded fear of persecution in Albania. Counsel for the claimant raised compelling reasons arising out of the claimant"s past persecution. The panel is mindful that a limited category of persons who have suffered "atrocious" and "appalling" persecution would be found refugees based on their past experiences alone. However, the claimant"s internment in various camps or treatment of his family members though cruel and harsh, in the panel"s opinion, could not be characterised as "atrocious" and "appalling". In reaching its decision, the panel considered the psychological report submitted by the claimant. It recounts the claimant"s experiences and make a finding that the claimant, due to the persecution he had endured during the Communist regime, has developed symptoms consistent with a diagnosis of chronic and profound Clinical Depression. The panel does not take issue with the medical findings of the report. However, since the panel does not find that the compelling reasons provision applies in this case, therefore, the claimant"s medical condition would not have a bearing on the determination of this claim.
The Refugee Division, therefore, determines that the claimant, Hasan Kulla, is not a Convention refugee.
[5] It is accepted by counsel for both parties that in this passage the panel was referring to argument on behalf of the claimant that his claim should be considered in light of subsection 2(3) of the Immigration Act, R.S.C. 1985, c. I-2 as amended. After defining "Convention refugee" in subsection 2(1), subsection 2(3) provides:
| (3) A person does not cease to be a Convention refugee by virtue of paragraph (2)(e) 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.
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(3) Une personne ne perd pas le statut de réfugié pour le motif visé à l'alinéa
(2)e) si elle établit qu'il existe des raisons impérieuses tenant à des persécutions antérieures de refuser de se réclamer de la protection du pays qu'elle a quitté ou hors duquel elle est demeurée de crainte d'être persécutée.
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[6] That provision has been accepted as requiring recognition of refugee status on humanitarian grounds for a special and limited category of persons whose experience of suffering is a compelling reason not to return them even though they may no longer have reason to fear persecution in the country from whence they came; see per Hugessen J.A. in Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2 F.C. 739, 93 D.L.R. (4th) 144, 142 N.R. 81 (Fed.C.A.). In this case, while I am persuaded that the panel"s conclusion is not adequately explained, having found the claimant"s past experience to be "cruel and harsh" but not "atrocious" and "appalling", ultimately, in my opinion the panel did not address the issue that was raised. That issue was not whether the claimant"s past experience could be characterized as "atrocious" and "appalling", adjectives used in other jurisprudence, but as rather, whether, as Madam Justice Reed stated in Dini v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1054 (F.C.T.D.) as the relevant test under subsection 2(3):
If the person establishes 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.
[7] In addition, the panel"s decision notes that it "considered the psychological report submitted by the claimant" and it did not take issue with medical findings of the report, but since compelling reasons arising from the applicant"s past experience were not applicable in this case, his "medical condition would not have a bearing on determination of this claim". I can only read this as a determination that the medical condition was not considered as a factor in assessing whether there were compelling reasons which would lead to the application of subsection 2(3). While that is what the medical report was offered to support, the panel evidently did not give consideration to that evidence for that purpose. The jurisprudence seems clear that where such evidence is ignored, the panel errs; see Biakona v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 391 (F.C.T.D.); A.S. v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 492 (F.C.T.D.), Bhardwaj v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1117 (F.C.T.D.).
[8] Having determined that the panel erred in its application of subsection 2(3) in the circumstances of this case, other arguments raised on behalf of the applicant are not here resolved. On the finding of errors in relation to the application of subsection 2(3), the application for judicial review was allowed, the impugned decision set aside and the matter remitted for reconsideration by a differently constituted panel.
[9] An order so providing, orally rendered at the conclusion of the hearing, has been confirmed in writing. No questions for consideration for certification pursuant to subsection 83(1) of the Immigration Act were suggested by counsel and none are certified.
"W. Andrew MacKay"
J.F.C.C.
Toronto, Ontario
August 24, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: HASAN KULLA |
Applicant
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| DATE OF HEARING: WEDNESDAY, AUGUST 23, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER BY: MACKAY J. |
DATED: THURSDAY, AUGUST 24, 2000
| APPEARANCES BY: Mr. Micheal T. Crane |
For the Respondent
| SOLICITORS OF RECORD: Micheal Crane |
| 166 Pearl Street, Suite 200 |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000824
Docket: IMM-4707-99
BETWEEN:
Applicant
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
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