Federal Court Decisions

Date: 20010322

Docket: IMM-2596-00

     Neutral Citation: 2001 FCT 217

BETWEEN:

                                       MAJLINDA DINI

                                             ARBEN DINI

                                           KLAUDIA DINI

Applicants

                                                    - and -

   THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

                                  REASONS FOR ORDER

GIBSON J.:

[1]    These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicants not to be Convention refugees within the meaning ascribed to that phrase in subsection 2(1) of the Immigration Act^[1]. The decision of the CRDD is dated the 17^th of April, 2000.

[2]    The decision here under review is not the first decision of the CRDD with respect to the applicants' claims to Convention refugee status. An earlier decision, also finding the applicants not to be Convention refugees, was the subject of judicial review by this Court. By order dated the 24^th of June, 1999, Madame Justice Reed set aside the earlier decision and referred the applicants' claims back to the CRDD for determination of whether subsection 2(3) of the Immigration Act was applicable with respect to the applicants. The relevant portions of the subsection 2(2) and subsection 2(3) of the Immigration Act read as follows:

2.(2) 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.

2.(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.

2.(2) 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.

2.(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.

[3]                 In reasons delivered orally and subsequently provided in writing^[2], Madame Justice Reed wrote:

The Board found that there had been changed country conditions but did not expressly decide whether the applicants had been Convention refugees prior to the change. Implicit in reliance on the principle of changed country conditions is a finding that they were such.    In any event, the Board proceeded, as Federal Court of Appeal jurisprudence has indicated is appropriate, to assess what is likely to occur to the applicants if they are returned to their country of origin [Albania] in the circumstances that exist there at the date of the hearing before the CRDD, which of course includes the changed country conditions. That analysis led to the conclusion that the applicants were not as of that date, Convention refugees.

I understood both counsel to agree that when changed country conditions are relied upon by a panel of the Board and a request for a subsection 2(3) analysis is made there is an obligation on the Board to undertake that analysis. ... The required analysis was not undertaken.

Madame Justice Reed concluded it would be quite inappropriate for this Court itself to undertake such an analysis. Thus her order referring the matter back followed.

[4]                 Madame Justice Reed wrote further:

In this regard, I note that while counsel referred to subsection 2(3) only being applicable when the treatment to which an applicant had been subjected was appalling, and to the references in the jurisprudence to situations of personal trauma, subsection 2(3) describes the relevant test as being:

if the person established 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 ...

[5]                 Counsel for the applicant urged that by the foregoing words, Madame Justice Reed was implying that "compelling reasons" might encompass circumstances where treatment suffered by an applicant was something less than appalling and involving situations of personal trauma.

[6]                 In conducting its analysis pursuant to the order of Madame Justice Reed, the CRDD wrote:

The question in this case is what constitutes "compelling reasons arising [out] of any previous persecution" and whether that applies to the case at bar.

In Obstoj, Mr. Justice Huggessen held that section 2(3) should 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 compelling reason not to return them", even though they may no longer have any reason to fear further persecution. However, such circumstances are "exceptional":

[t]he exceptional circumstances envisaged by subsection 2(3) must surely apply only to a tiny minority of present day claimants.

This caution was confirmed in subsequent cases before the Federal Court e.g. Cortez that it is applied "in unusual circumstances" and in Yusuf where it is stated that "very rare class of persons to whom this exceptional provision applies."

The determination of whether there are "compelling reasons" is a question of fact. Case law indicates that the threshold necessary to demonstrate "compelling reasons" is a high one. For instance, in the case of Hassan, the Court stated:

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.

In Arguello-Garcia, the applicant was a citizen of El Salvador whose brother's family were murdered by the National Guard in 1981. His mother, who witnessed the murders, died of shock three days later. In 1987, the applicant was arrested and detained for six weeks on suspicion of being associated with guerillas. During his detention, he was mistreated, sexually assaulted, and tortured. In 1990, the applicant's son was murdered. The applicant made an application to the Federal Court to review the IRB's decision that s. 2(3) did not apply to him. In assessing the applicant's past experiences inflicted by his agents of persecution, the Court took guidance from dictionary definitions of "atrocious"..., "atrocity"... and "appalling" ... . The Court found that the torture and sexual assault experienced by the applicant ‘surely [qualify] as "atrocious" and "appalling" acts, as defined above'.

However, in Siddique, the Court upheld that CRDD's finding that the torture the claimant had endured during his 15-day detention in Bangladesh in the early 1980's, albeit abhorrent did not constitute atrocious persecution. In Toah, the Court upheld the CRDD's finding that the claimant's detention, torture, beatings and sexual assaults were not "sufficiently serious", "atrocious" or "appalling" to warrant the application of section 2(3).

Thus, it appears that the "test" for the application of compelling reasons from the jurisprudence is to determine whether, on an objective basis, a claimant's sufferings are sufficient to warrant it.^[3]   

[7]                 The CRDD then undertook a review of the experience of the applicants in Albania that gave rise to their claims for Convention refugee status, all as previously determined by another panel of the CRDD. In the decision here under review, following that review, the CRDD concluded:

Having regard to the entire evidence of the past experience of the two [adult] claimants, the panel is of the opinion that what they have suffered [does] not objectively amount to appalling or atrocious persecution.

With respect to the male adult claimant, the CRDD wrote:

However, the panel finds that his experiences were not sufficiently atrocious or appalling so as to constitute compelling reasons not to return to Albania.

With respect to the female adult claimant, the CRDD wrote:

Such treatment, taken either singly or cumulatively with her family background does not constitute sufferings so appalling or atrocious that would invoke the application of the compelling reasons provisions.

[8]                 Clearly, counsel for the applicants urged, the CRDD did not adopt what he urged was the implicit determination of Madame Justice Reed that for there to be compelling circumstances sufficient to meet the requirement of subsection 2(3) of the Immigration Act, the treatment that the applicants experienced in Albania might not have to reach the level of "appalling" or "atrocious".

[9]                 In Kulla v. Canada (Minister of Citizenship and Immigration)^[4], Mr. Justice MacKay, at paragraph 6, noted:

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), ... 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.                                                                                                                      [citation omitted]

[10]            In my view, much more clearly than did Madame Justice Reed in Dini, Mr. Justice MacKay is suggesting that it should not be assumed that "compelling reasons" arising out of any previous persecution only exist where the previous persecutory treatment reaches the level of "atrocious" and "appalling". Once again, impliedly at least, he appears to suggest a lower threshold of "cruel and harsh". That the CRDD in the decision here under review did not consider the decision in Kulla is not at all surprising given that the Kulla decision post-dated the decision here under review by several months.

[11]            Against the decisions of the Appeal Division and this division of this Court as they stood when the CRDD took the decision here under review, I am satisfied that the CRDD was correct in equating "compelling reasons" arising out of any previous persecution with past persecution that could be characterized as "atrocious" or "appalling". Further, I am satisfied that the CRDD made no reviewable error in concluding that the past persecution that the adult applicants before it had suffered in Albania did not reach the threshold of "atrocious" or "appalling" persecution.

[12]            In light of my foregoing conclusion, this application for judicial review will be dismissed.

[13]            Taking into account the decisions of Madame Justice Reed in Dini and of Mr. Justice MacKay in Kulla, counsel for the applicant urged that the determination that I have arrived at may be wrong in law in that the correct interpretation of "compelling reasons arising out of any previous persecution" as those words appear in subsection 2(3) of the Immigration Act may involve a somewhat lower threshold of previous persecution than is characterized as "atrocious" or "appalling". Certainly, to my knowledge, and counsel cited no case to the contrary, the equating of compelling reasons with "atrocious" or "appalling" treatment is not a question that has been addressed by the Court of Appeal. Counsel for the applicant urged that I certify a question in the following terms as a question that is both serious and of general importance and that would be determinative of an appeal in this matter:

In relation to a determination under s. 2(3) of the Immigration Act, does a finding of "compelling reasons" require a finding of "appalling" or "atrocious" past persecution?

[14]            Counsel for the respondent urged against certification of a question but agreed to the above form of question if a question were to be certified.

[15]            I am satisfied that the question proposed for certification by counsel for the applicant is a serious question of general application and that a response to it would be determinative of an appeal of this decision^[5]. I will certify the question proposed.

_____________________________

                    J. F.C.C.

Ottawa, Ontario

March 22, 2001

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