Date: 19990407
Docket: IMM-4742-98
SASKATOON, SASKATCHEWAN, Wednesday, this 7th day of April, 1999.
PRESENT: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
NELSON GUERRERO SAAVEDRA,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] The claimant in this case was found by the CRDD to be excluded from consideration for refugee status by virtue of Article 1(f)(a) of the Convention Relating to the Status of Refugees because, in 1985, he was complicit in crimes against humanity as a member of the Chilean military during the Pinochet regime.
[2] Fundamental to the finding of complicity, the CRDD made the following findings of fact:
| 1. "the panel determines that the claimant witnessed torture and that he was aware of other acts of torture by members of the armed forces"; and |
| 2. "the claimant freely admitted that he was aware of other acts of torture by members of the armed forces. This admission is sufficient to conclude that the claimant had personal knowledge that the armed forces were committing crimes against humanity during the time that he was a member of the armed forces." |
[3] I find that both these findings are unsupported by the evidence; the beating which the claimant witnessed was not an act of torture, and the equivocal evidence the claimant gave respecting his knowledge does not constitute a "free admission."
[4] In my opinion, these erroneous findings of fact are fundamental to the decision rendered by the CRDD, and, accordingly, I order that the decision be set aside and this matter be referred back to a differently constituted panel of the CRDD for redetermination.
[5] As the reviewable error in this case was caused by imprecise decision making, I find special reasons to award costs to the applicant, and I so order.
"Douglas Campbell"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-4742-98
| STYLE OF CAUSE: Nelson Guerrero Saavedra v. Minister of Citizenship and Immigration |
PLACE OF HEARING: Saskatoon, Saskatchewan
DATE OF HEARING: April 7, 1999
REASONS FOR ORDER
OF THE COURT: The Honourable Mr. Justice Campbell
DATED: April 7, 1999
APPEARANCES
Gary Bainbridge for the Applicant
Glennys Bembridge
Dept. of Justice
7th floor, 229 - 4th Avenue South
Saskatoon, Saskatchewan for the Respondent
S7K 4K3
SOLICITORS OF RECORD
Woloshyn & Company
Barristers & Solicitors
200 Scotiabank Building
111 Second Avenue South
Saskatoon, Saskatchewan
S7K 1K6
for the Applicant
Morris Rosenberg
Deputy Attorney General of Canada for the Respondent