Arguello-Garcia v. Canada ( Minister of Employment and Immigration )
92-A-7335
McKeown J.
10/11/93
7 pp.
Application for judicial review of Convention Refugee Determination Division decision applicant not Convention refugee -- Applicant from El Salvador -- In 1981, brother and family murdered by National Guard -- In 1987 arrested by military -- During six weeks in detention, mistreated, sexually assaulted, tortured, accused of being guerilla accomplice -- Escaped when guerillas attacked jail -- Stayed in hiding or unable to move about freely for two years -- Immigration Act, s. 2(3) providing person not ceasing to be Convention refugee by reason of changing country conditions if establishing compelling reasons arising out of any previous persecution for refusing to avail himself of protection of country left because of fear of persecution -- Board finding facts not amounting to previous persecution -- Application allowed -- Board erred in law -- 1981, 1987 incidents amounting to persecution -- Change of regime in country not always producing complete change in attitude of population, nor in mind of refugee -- Based on objective factors alone, persecution suffered by applicant sufficiently serious, atrocious, appalling to warrant application of s. 2(3) -- Since erroneously determined issue of past persecution, Board failed to consider negative or psychological effect of past persecution of applicant -- Ample evidence before Board showing applicant continuing to suffer severe psychological hardship as result of serious persecution he and family suffered -- Lack of change of principal members of government in El Salvador and continued presence in power of former agents of persecution justifying applicant's strong subjective fear of returning to country -- Unsettled and violent conditions in El Salvador, applicant's subjective fear, and lasting psychological effects of serious past persecution "compelling reasons" arising out of past persecution for refusing to avail himself of protection of El Salvador -- Immigration Act, R.S.C., 1985, c. I-2, s. 2(2)(e) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1), (3) (as am. idem).