Adaros-Serrano v. Canada ( Minister of Employment and Immigration )
93-A-124
McKeown J.
3/9/93
9 pp.
Application for judicial review of Convention Refugee Determination Division decision applicant not Convention refugee -- In 1987, while painting political material on walls, posting pamphlets, applicant abducted, raped, tortured for two days by military -- On release resuming political activities, but keeping low profile, staying home at night -- Receiving threatening telephone calls into 1988 -- New democratic government inaugurated in Chile in 1990 -- Chance encounter with torturer who threatened her in 1990 triggering post-traumatic stress syndrome -- Leaving Chile -- Panel recognizing transition to democracy in Chile incomplete; government of Chile hindered in exercise of some of its functions; allegations of torture continuing; government's effectiveness in prosecuting violations committed by security forces poor -- Application allowed -- Evidence supporting panel's conclusion no serious possibility applicant would be persecuted in Chile because of political opinion -- Applicant only in danger if protested past persecution by government officials -- Applicant not intending to make story public -- Panel holding reasons for applicant's fear of persecution ceasing to exist -- Board erred in determining persecution terminated in 1987 -- Continuing with phone calls, threat from torturer in 1990 -- If returned to Chile with post-traumatic stress disorder applicant requiring parental assistance, in whose area torturers live, exposing her to further acts of persecution -- Panel ignoring evidence government in Chile unable to control armed forces or interfere with suppression of evidence regarding prior human rights abuses -- No evidence government of Chile able to take any action to stop persecution -- Military forces having vested interest in ensuring evidence of former atrocities not made public -- Although safer to express political opinion in Chile today, applicant's knowledge of torturers, not political opinion, rendering her subject to persecution -- Panel not considering effect of changes on individual -- Panel also erred in holding applicant not having compelling reasons for refusing to avail self of protection of Chile, despite very serious violation of human rights -- Considered return home, resumption of modified lifestyle after abduction indicating applicant not perceiving persecution as so appalling and atrocious could not stand idea of living in place where persecution occurred -- Determination based on finding abduction, torture constituting persecution complained of -- Panel required to re-evaluate finding as persecution ongoing, resulting in post-traumatic stress disorder -- Must also consider other acts of persecution not result of political opinion, but of knowledge of identity of torturers -- Immigration Act, R.S.C., 1985, c. I-2, s. 2(3).