Jiminez v. Canada (Minister of Citizenship and Immigration), docket IMM-1718-98

Date: 19990125

Docket: IMM-1718-98

BETWEEN:

     WILFREDO JIMINEZ

     Applicant

AND:

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

ROULEAU, J.

[1]      This is an application pursuant to section 82.1 of the Immigration Act for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board") dated March 26, 1998, in which the Board determined Mr. Jiminez was not a Convention Refugee. The review is concerned with the application of subsection 2(3) of the Immigration Act. This subsection provides in part as follows:

(2) Cessation of convention Refugee Status - A person ceases to be a Convention refugee when ... (e) the reasons for the person's fear of persecution in the country that the person left, or outside of which the person remained, cease to exist. (3) Exception - 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.

(2) Perte du statut de réfugié au sens de la Convention - Une personne perd le statut de réfugié au sens de la Convention dans les cas où: ... (e) les raisons qui lui faisaient craindre d'être persécutée dans le pays qu'elle a quitté ou hors duquel elle est demeurée ont cessé d'exister. (3) Exception - 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.

[2]      The Court was asked to determine the following issues:

1)      Did the Board misinterpret subsection 2(3) of the Immigration Act?

2)      Did the Board fail to properly apply subsection 2(3) of the Immigration Act to the established facts?

3)      In light of the Federal Court Trial Division decisions in Arguello-Garcia, (1993), 21 Imm L.R. (2d) 285 and Shahid, (1995), 28 Imm L.R. (2d) 130, was there an additional test, that of an applicant suffering continuing psychological after-effects of the previous persecution even though he or she may have satisfied the basic rule that the applicant suffered "atrocious" or "appalling" acts of persecution in the country from which he or she is claiming asylum?

[3]      Mr. Jiminez was born in Santa Ana, El Salvador on May 12, 1960. He lived with his mother until he was 14 at which time he joined the military. He gained entrance as a minor with the help of his uncle, a high ranking member of the military. After nine months, his uncle arranged for his release. He became a policeman in 1976. After three months on the job, he was assigned to the Criminal Investigation Section. In 1977, he began to investigate privately unaccounted for deaths with the bodies showing signs of mutilation and torture. In 1979, Mr. Jiminez formed a group with 20 other policemen to investigate the deaths. He came to believe that one Roberto Mayor Daguison, a major in the army, was responsible for the crimes.

[4]      On August 2, 1979, Mr. Jiminez asked to be released from his duties as a police officer. On September 27, three vehicles with blackened windows pulled up beside him and told him he was now in trouble and would suffer the consequences. He recognized the vehicles as being part of the death squads. A black hood was placed over his head, he was handcuffed and taken to a place where he was beaten, interrogated and tortured. He was told, under threat, to discontinue his investigation of the deaths. He noticed other members of his group also being tortured.

[5]      Two days later, Mr. Jiminez was tied to a chair and electrodes placed on his ankles and head. His feet were placed in water and he was given electric shocks. He was beaten and hit on the head with a rifle butt. They cut him numerous times with a knife and poured boiling milk on his chest. He was left on a floor full of blood. During this detention he witnessed others being raped and testified that he was raped himself.

[6]      Mr. Jiminez was dumped among other bodies and left for dead. He was found by the Red Cross who discovered that he was still alive and was taken to a hospital. He had a bullet in his foot, his upper leg and his calve. His finger was deformed from the torture and his face was inflamed from all the beatings. His teeth were also broken.

[7]      After his release from the hospital he hid at his grandfather's farm in the country. He later discovered that several members of his group had been murdered. Eventually, he organized the remaining members along with others to break into a military area in order to retrieve the files the military kept on them. One member was shot and killed on their way out.

[8]      Mr. Jiminez left El Salvador a few days after the raid. He went to the United States and lived with his mother in New York a few months and then continued to reside in the U.S. for apparently seven years. He entered Canada in 1987, whereupon he immediately claimed refugee status.

[9]      While living in Toronto in 1991, Mr. Jiminez became involved with drugs and alcohol. While drunk, he called and made threats to an operator. As a result of this incident, he was sent to a psychiatric hospital for evaluation and assessment. He became afraid he would be returned to El Salvador, so he went to a border crossing in Manitoba and declared himself to be a Mexican, so that if he was sent back, it would not be to El Salvador. A member of the Mexican consulate interviewed him and determined he was not Mexican.

[10]      Mr. Jiminez moved to Vancouver in May or June of 1992. In 1993, he was charged with breaking and entering after trying to force himself into an ex-girlfriend's apartment. He received 14 months' probation and later wrote a letter of apology to the victim. Mr. Jiminez pleaded guilty for trafficking in narcotics against the advice of his lawyer, having a " gram of cocaine in his possession worth $30 He received a suspended sentence with 12 months' probation. Both offenses occurred while Mr. Jiminez was heavily involved in drugs. Following this incident, he entered drug and alcohol abuse counselling.

[11]      In April 1996, he was attached by four men which resulted in severe brain injury and seriously limited movement on the right side of his body. Though still able to care for himself, Mr. Jiminez has since become mentally incapacitated as a result of the beating. Maria Undurraga, a registered psychologist, determined in an interview on March 29, 1997 that Mr. Jiminez has severe difficulty remembering recent and past events; that he becomes confused very easily, has severe language-processing difficulties and experiences increased anxiety in the face of stress.

[12]      Mr. Jiminez was examined by Dr. Baker on September 15, 1997. The doctor noted that he fatigued easily and slurred his speech. He found numerous scars on Mr. Jiminez's hands which were consistent with wounds intentionally inflicted with a knife. His forearm had a scar consistent with a knife wound, as did his right abdominal wall. There were also scars on his chest consistent with being burned by a hot liquid. The marks around Mr. Jiminez's knees were also consistent with injury caused by electrical shocks. At this time Mr. Jiminez complained of nightmares, daily memories of the events in El Salvador and described his fear of police. Dr. Baker determined that Mr. Jiminez's complaints were consistent with Post Traumatic Stress Disorder.

[13]      On November 28, 1997, Mr. Jiminez was seen by Dr. Paredes, a psychiatrist, who concluded that Mr. Jiminez suffered from dementia due to head injury, although drug and alcohol abuse could not be ruled out as contributing factors. Dr. Paredes concluded it was difficult to make a diagnosis in retrospect, prior to the dementia, however, Mr. Jiminez might have suffered from Post Traumatic Stress Disorder following the 1979 torture.

[14]      The hearing before the Refugee Board took place on September 4, 1997 and September 26, 1997. Mr. Jiminez testified. Nevertheless the Board found that he had become mentally incapacitated in 1996 and was unable to properly testify in support of his claim. The Board relied on Mr. Jiminez's PIF, which had been prepared before the head injury occurred, as well as psychiatrist reports.

[15]      The Board determined that Mr. Jiminez had been beaten, burned, raped, shot and left for dead in El Salvador in 1979. It also found that conditions in El Salvador have changed dramatically since 1979.

[16]      The Board concluded that there was no basis for finding that compelling reasons exist which arose out of previous persecution in El Salvador. The Board held that the psychological indices produced for Mr. Jiminez were limited to an assessment of his present state premised on the severe brain injury suffered in April 1996, and that Dr. Paredes stated he could not rule out drugs and alcohol as contributing factors. The Board decided that "it has not been established that the applicant's evident suffering is the continued effect of past persecution".

[17]      Given these findings, the Board concluded it was not necessary to consider the applicability of the exclusion clauses, pursuant to Article 1F(a) and 1F(c) of the Schedule to the Immigration Act, as raised by the Minister (arising out of the trafficking charges).

[18]      The Court shall now undertake a detailed analysis of the jurisprudence which the Board appeared to follow. If the conditions in a country have changed to such an extent that the source of the claimant's fear of persecution no longer exists, the claimant ceases to be a Convention refugee. The only exception is if the claimant falls under subsection 2(3) of the Immigration Act.

[19]      The leading case with respect to the interpretation of subsection 2(3) of the Immigration Act is Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2 F.C. 739 (C.A.). In an oft-cited passage, Hugessen J.A. at p. 748 stated:

On any reading of subsection 2(3) it must extend to anyone who had been recognized as a refugee at any time, even long after the date of the Convention. 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.

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 be both repugnant and irrational.

[20]      Desjardins J.A. in a concurring judgment, added at p. 751 that "section 2(2) and (3) was added to the definition of a Convention refugee in order to "bring the definition into conformity with the United Nations Convention Relating to the Status of Refugees"". The United Nations Convention, paragraph 136, states that:

It is frequently recognized that a person who, or whose family, has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of regime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experience, in the mind of the refugee.

[21]      The Act recognizes that a claim is valid in special circumstances even if, according to Desjardins J. A., "there is no longer an objective basis for the fear of persecution itself", p. 752.

[22]      Rothstein J., in Pour-Shariati v. Canada (Minister of Employment and Immigration), [1995] 1 F.C. 767 (T.D.), appeared to rely on Obstoj (supra); the only instance in which a claimant will be able to attain Convention refugee status "despite the absence of a well-founded fear of persecution in the future, is where the claimant's past persecution was of such an appalling nature that even a change of circumstances in the country of origin, removing the potential for future prosecution, will not defeat the Convention refugee claim." In such a situation, claimants will be recognized as Convention refugees on humanitarian grounds.

[23]      Thus, according to Hugessen J.A. in Obstoj, the persecution must be of such an appalling or atrocious nature that the experience alone is a compelling reason not to return the refugee claimant to his or her country of origin. Similarly, in Velasquez v. Minister of Employment and Immigration (1994), 76 F.T.R. 210 at 212, Gibson J. held that s. 2(3) would be applicable if there are compelling reasons arising out of any previous persecution. In this case he found that the wife of a 78 year old man who was brutally raped by three men in El Salvador fit under the definition of s. 2(3).

[24]      The parties then referred the Court to two other decisions on the issue and they are suggesting that the test applied in Obstoj, supra, may have been extended.

[25]      In Arguello-Garcia v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 285 (F.C.T.D.), McKeown J. at p. 288 noted that s. 2(3) is based on a "general humanitarian principle which permits a person who has suffered serious past persecution to retain or obtain Convention refugee status despite fundamental changes in his country of origin". In this case the claimant was held in detention, raped and beaten in El Salvador for being a suspected member of the guerillas. His brother and other members of his family were murdered by the National Guard and his mother, who witnessed the murders, died of shock three days later. McKeown J. held at p. 288 that based on objective factors alone, the claimant's persecution in this case was sufficiently "atrocious" and "appalling" to warrant the application of s. 2(3). However, McKeown J. went on to note that the claimant in this case continued to suffer severe psychological hardship as a result of his persecution, and testified to a strong subjective fear of returning to El Salvador.

[26]      Noël J., as obiter, in Shahid v. Canada (Minister of Citizenship and Immigration) (1995), 28 Imm. L.R. (2d) 130 (F.C.T.D.) at 136 set out the three-part test that he suggests was established by McKeown J. in Arguello-Garcia (supra). His analysis concluded the following:

(1) The claimant must have suffered from "atrocious" or "appalling" acts of persecution in the country from which he or she is claiming asylum;

(2) The claimant must have a subjective fear of persecution such that he refuses to return to his country of origin and asks for the protection of the authorities of that country;

(3) The claimant must suffer continuing psychological after-effects of the previous persecution.

[27]      Noël J. went on at p. 138 that it was the duty of the Board to consider the level of atrocity of the acts inflicted on the claimant, the repercussions upon his physical and mental state, and then determine whether this experience alone constituted a compelling reason not to return the claimant to the country of origin. Noël J. concurred with Rothstein J. in Hassan v. Minister of Employment and Immigration (1994), 77 F.T.R. 309 where it was held at p. 312 that s. 2(3) does not require an ongoing fear of persecution. However, the standard which must be met is a strict one, according to Rothstein J. at p. 312:

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.

[28]      It should be noted that I began the discussion of Shahid indicating that it was obiter. This is quite evident when one reads the entire decision. Though Noël J. has indicated that McKeown J. perhaps had established a three-part test, he seemed to revoke it in paragraph 25 at page 138 where he wrote:

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.

He went on to say:

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...

[29]      No doubt the claimant has a heavy evidentiary burden to establish compelling reasons arising out of past persecution that negate the impact of changed country conditions: Yong-Gueico v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 987 (T.D.) per Cullen J.; also, Brown v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 988 (T.D.) per Richard J. (as he then was). Whether or not compelling reasons exist is a question of fact: Rasanayagam v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1080 (T.D.) per Wetston J.

[30]      Counsel for Mr. Jiminez does not dispute the Board's findings that the conditions in El Salvador have significantly changed since Mr. Jiminez fled the country. The sole issue is the applicability of s. 2(3) of the Immigration Act. The Board in its decision in respect of this issue, concluded that there was no basis for finding that compelling reasons exist which arose out of previous persecution in El Salvador given that the psychological indices produced for Mr. Jiminez were limited to an assessment of his present state premised on the severe brain injury suffered in April 1996, and that Dr. Paredes stated he could not rule out drugs and alcohol as contributing factors.

[31]      The respondent argues that the Board "clearly states that there was insufficient evidence upon which to base a finding that the applicant's experience of persecution in El Salvador was so exceptional that it causes ongoing suffering of the order experienced by the applicant in Arguello-Garcia.

[32]      The Minister relying on the Arguello-Garcia case argues that the test imports an "ongoing suffering". I disagree. McKeown J. himself in Arguello-Garcia stated at p. 288 that on "objective factors alone", he would have found the claimant's suffering to warrant the application of s. 2(3). Evidence of Post-Traumatic Stress Disorder simply reinforced his conclusion as he appeared to summarize the evidence.

[33]      Counsel for the Minister urged the Court to analyze the decision rendered by the Federal Court of Appeal in Obstoj and compare it with the decisions rendered by McKeown J. and Noël J. and determine if in fact in order for s. 2(3) to apply there is an onus on a refugee claimant to establish that he must suffer continuing psychological after-effects.

[34]      I do not think any of the jurisprudence raised suggests a further test of continuing psychological after-effects. I discern no contradictions in the jurisprudence. I fear counsel have put emphasis on obiter and not on the ratio decidendi.

[35]      Counsel having submitted the additional test as an alternative in arguments before the Tribunal may have led them to confuse the state of the law. They appear to have accepted the fact that the applicant had been beaten, tortured, burned, raped and shot while in El Salvador and was then left for dead. However, the Board made no determination as to whether or not this applicant qualified under the exception provided under s. 3(2).

[36]      Finally it was submitted that if I am persuaded to return the matter for rehearing that this is a case in which the C.R.D.D. should be directed with respect to the result. I disagree. There is a question of fact that can only be determined by the Board, that is whether or not this appellant meets the exceptional circumstances envisioned by s. 2(3).

[37]      The Board in the case at bar seemed to focus exclusively on whether Mr. Jiminez's current suffering was the "continued effect of past persecution". The Board accepted as a fact that Mr. Jiminez was beaten, burned, raped, shot and left for dead. However, it did not comment on whether the nature of Mr. Jiminez's persecution was sufficiently "appalling" and "atrocious" to warrant the application of s. 2(3). This is clearly an error of law.

[38]      The application is allowed and the matter is returned for redetermination by a newly constituted panel.

                                     JUDGE

OTTAWA, Ontario

January 25, 1999