Federal Court Decisions

     Date : 19971027

     Docket : IMM-924-97

BETWEEN:

     MAKONNEN HABTEMARIAM MESKELE

     BENIYAM MAKONNEN HABTEMARIAM

     MICHAEL MAKONNEN HABTEMARIAM

     BEZAWIT MAKONNEN HABTEMARIAM

     Applicants

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

     [Delivered from the Bench at Ottawa, Ontario

     on Monday, October 27, 1997]

McGILLIS, J.

[1]      Counsel for the applicant argued, among other things, on this application for judicial review that the Immigration and Refugee Board ("Board") erred in law in its analysis on the question of past persecution.

[2]      A review of the evidence before the Board indicates that the applicant was arbitrarily imprisoned in deplorable conditions and mistreated by the Ethiopian authorities for two months in 1991 for reasons related to his political involvement. Following his release from prison, he learned that his home had been searched on several occasions during his imprisonment. In 1992, his brother-in-law was murdered by members of the governing political party. In 1994, the applicant's wife was arrested and imprisoned for political reasons. The applicant has not seen his wife and has been unable to establish any contact with her since her arrest and imprisonment. The applicant's evidence was found by the Board to be credible.

[3]      In its analysis of the question of past persecution, the Board considered each matter raised by the applicant in an isolated or compartmentalized fashion, concluding for various reasons that each of the incidents was not persecutory in nature. In my opinion, the Board erred in law in failing to appreciate the totality of the uncontradicted and credible evidence adduced by the applicant concerning the persecution suffered by him or by members of his immediate family. Furthermore, the Board failed to recognize the persecutory nature of the imprisonment endured by the applicant for two months. Even though the applicant did not immediately flee the country, his imprisonment may nevertheless constitute a valid basis for a prospective fear of persecution, particularly when considered in the context of the many subsequent problems encountered by the applicant and his family. [See Retnem et al v. Minister of Employment and Immigration (1991), 132 N.R. 53, 55 (F.C.A.)].

[4]      In the circumstances, I have concluded that the error committed by the Board in its analysis of the crucial question of past persecution fundamentally tainted its entire decision. Indeed, counsel for the respondent fairly and properly conceded during the course of argument that a new hearing would be required if the Board had erred in that aspect of its decision.

[5]      Given my conclusion in this matter, it is unnecessary for me to consider the other issues raised by the applicant.

[6]      The application for judicial review is allowed. The decision of the Board is quashed and the matter is remitted to a differently constituted Board for rehearing and redetermination. The case raises no serious question of general importance.

Judge

OTTAWA, ONTARIO

October 27, 1997