Xie v. Canada ( Minister of Employment and Immigration )
A-1573-92
Rothstein J.
3/3/94
8 pp.
Application for judicial review of Immigration and Refugee Board's decision applicant victim of discrimination or harassment, but not persecuted-Applicant, citizen of People's Republic of China, involved in student uprisings, arrested, detained, name placed on "black file" which prevented him from obtaining employment or returning to school to upgrade qualifications-Arriving in Canada in 1992 and claiming refugee status on basis of well-founded fear of persecution by reason of political opinion-Whether blacklisting persecution or merely discrimination-Whether panel erred by making conclusions unsupported by evidence-In Oyarzo v. Minister of Employment and Immigration, [1982] 2 F.C. 779 (C.A.), Federal Court of Appeal suggesting refusal of permission to continue education because of political opinion factor to be considered in refugee claim-Difficulties in obtaining employment, together with other considerations, part of determination of Convention refugee status: Ovakimoglu v. Minister of Employment and Immigration (1983), 52 N.R. 67 (F.C.A.)-Panel not properly appreciating evidence applicant suffering restrictions on right to earn livelihood and access to normally available educational facilities-Ability to sustain oneself normally depending upon opportunity to work and earn livelihood-If state taking steps to prevent person from securing employment in country in which state controlling economy, consequences substantially prejudicial to person concerned-Systematic governmental interference with opportunity to find work serious restraint on individual-If blacklisting only restricting ability to find employment through certain channels but not through others, action not necessarily amounting to persecution-If, as alleged by applicant, blacklisting making it illegal to be employed by anyone in China, possible no potential employer would be willing to risk consequences of employing applicant-Panel not obligated to accept evidence suggesting only employment opportunity for applicant in China through illegal means, but not entitled to ignore it-Panel's conclusion no legal reason why applicant could not be employed by former employer contrary to evidence before it-Panel made finding of fact without regard to material and erred in manner justifying relief-Application allowed-Federal Court Act, s. 18.1(3), not giving Federal Court jurisdiction to substitute its decision for that of tribunal whose decision under review-Court having jurisdiction to refer matter back for redetermination in accordance with appropriate directions-Directions in nature of directed verdict should only issue where case straightforward and decision of Court on judicial review dispositive of matter before tribunal-Generally Court should leave to specialized tribunals right to make decisions on merits-Matter referred back for redetermination to differently constituted panel-Parties directed to produce evidence as to whether blacklisting rendering it illegal for person to be employed in China or whether only limiting employment opportunities and seriousness of such limitations-Federal Court Act, R.S.C., 1985, c. F-7, s. 18.1(3) (as enacted by S.C. 1990, c. 8, s. 5).