Yong-Gueico v. Canada ( Minister of Citizenship and Immigration )
IMM-3413-96
Cullen J.
14/7/97
9 pp.
Application for judicial review of Immigration and Refugee Board CRDD (Tribunal) decision applicants not Convention refugees-Tribunal accepted principal applicant's testimony with respect to experiences in Chile (multiple instances of persecution) as credible-However, Tribunal determined applicants not refugees mainly on basis country conditions have changed in Chile to such extent applicants could not have well-founded fear of persecution-Issue determinative of case: finding of changed country conditions and interplay with Act, s. 2(3)-Application allowed-Changes in country conditions must be assessed according to impact on claimant's situation-Effect of Act, s. 2(3): where there are compelling reasons, cessation clause of definition in Act, s. 2(e) will not be operative and change of country conditions will not thereby defeat person's claim for Convention refugee status-Act, s. 2(3) requiring recognition of refugee status on humanitarian grounds to those who suffered such appalling persecution that their experience alone compelling reason not to return them, even though they may no longer have any reason to fear further persecution: Obstoj v. Minister of Employment and Immigration, [1992] 2 F.C. 739 (C.A.)-Whether Tribunal duty bound to consider and conclude whether or not "compelling reasons" within meaning of Act, s. 2(3) in applicants' case-Definition in Act, s. 2(1) requiring Tribunal to condider cessation clauses in subsection 2(2), which, in turn requiring consideration of other provision of Act bearing directly on s. 2(2), and limiting its scope; s. 2(3)-Therefore, when Act, s. 2(2) engaged to determine refugee claimant's case, Act, s. 3(3) also engaged-In spite of positive onus placed on refugee claimant to establish "compelling reasons", Tribunal must, in such case, consider effect of s. 2(3) on case before it, otherwise, has declined to exercise jurisdiction, resulting in error in law-Tribunal duty bound to make relevant determinations regardless of whether issue raised by applicant or not, if ground raised by facts-Most important thing to be determined: whether applicant's evidence indicating past persecution, and if so, whether compelling reasons arising out of past persecution, by reason of fear of persecution, as to why applicants should not be repatriated-Also, although no requirement for Tribunal to refer to every piece of documentary evidence before it, fact no reference at all made to applicants' documentary evidence looking rather suspicious-Justice must not only be done, but must also be seen to be done-Case referred back to differently constituted Tribunal for re-determination-Question certified: Whether Refugee Division obliged in law to consider application of Immigration Act, s. 2(3) if issue not raised at hearing by parties to hearing or by Refugee Division; if so, nature and extent of obligation-Immigration Act, R.S.C., 1985, c. I-2, s. 2 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1; S.C. 1992, c. 49, s. 1; 1994, c. 31, s. 18; 1995, c. 15, s. 1).