IMM-1439-03
2004 FC 1125
Juma Khamis Suleiman and Zakia Salum Abdula (Applicants)
v.
The Minister of Citizenship and Immigration (Respondent)
Indexed as: Suleiman v. Canada (Minister of Citizenship and Immigration) (F.C.)
Federal Court, Martineau J.--Toronto, July 27; Ottawa, August 12, 2004.
Citizenship and Immigration -- Status in Canada -- Convention Refugees -- Judicial Review of decision of Refugee Protection Division (RPD) of Immigration and Refugee Board that applicants not Convention refugees, and that "compelling reasons" exception found in Immigration and Refugee Protection Act, s. 108(4), not applicable -- Suleiman (principal applicant), member of opposition party Civic United Front (CUF), suffering maltreatment at hands of Tanzanian authorities -- Once in Canada, applicants learning that Suleiman's brother detained, cousin killed by government agents -- RPD found Suleiman credible, but dismissed refugee claim in light of changed country conditions -- Also found treatment afforded Suleiman deplorable, but not "atrocious", "appalling", standard set by F.C.A. in Canada (Minister of Employment and Immigration) v. Obstoj for "compelling reasons" exception not met -- Whether RPD finding exception not applicable reviewable error -- Act, s. 108(4) referring to "compelling reasons arising out of previous persecution, treatment or punishment", not requiring such acts or situation be "atrocious", "appalling" -- Issue whether, considering totality of situation, wrong to reject claim or make declaration refugee protection ceased in wake of change of circumstances -- Each case to be assessed on own merits based on totality of evidence -- Question to ask: Should claimant be made to face background set of life left behind? -- Claimant's state of mind creates precedent, but other factors can also come into the balance (country, conditions, population attitude, age of claimant, cultural background, previous social experiences) -- RPD erred in inferring Obstoj requiring persecution qualify as "atrocious", "appalling" -- This error vitiating Convention refugee determination -- RPD failed to consider whether repatriation would cause Suleiman undue emotional suffering so as to constitute "compelling reasons" -- RPD failed to thoroughly examine evidence (death of cousin, Suleiman's maltreatment and delicate mental state) to make proper assessment, and failed to state why "deplorable" acts committed not "compelling reasons" -- Application allowed.
This was an application for judicial review of a decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board. The RPD found that the applicants were not Convention refugees. It also found that the "compelling reasons" exception, found in subsection 108(4) of the Act, was not applicable. This exception provides that despite the fact that the reasons for which a person sought refugee protection ceased to exist, refugee protection should nevertheless be conferred where "compelling reasons" arise out of previous persecution, torture, treatment or punishment which justify a person's refusal to avail himself or herself of the protection of the country which he or she left.
The applicants, citizens of Tanzania, alleged a well-founded fear of persecution at the hands of Tanzanian authorities. The principal applicant, Mr. Suleiman, was a member of the opposition party Civic United Front (CUF) in Tanzania, and as a result of such membership, was denied access to schooling and the right to vote in elections, and was subjected to maltreatment, including the disruption of his business and the confiscation of his goods, his arrest, detention, and beating. This maltreatment ultimately led the applicants to flee Tanzania, and once in Canada, they found out that Mr. Suleiman's brother had been detained and that his cousin had been killed by government agents.
The RPD found Mr. Suleiman credible and accepted that he suffered past persecution. Nevertheless, the RPD determined that in light of the changed country conditions, the applicants' fear of persecution was not objectively well-founded and dismissed their claim for refugee status. The RPD also considered the applicability of the "compelling reasons" exception, and found that although the treatment afforded Mr. Suleiman was deplorable, it was not "atrocious" and "appalling" and as such, the standard set by the F.C.A. in Canada (Minister of Employment and Immigration) v. Obstoj for the application of compelling reasons exception was not met. The issue before the Court was whether the RPD made a reviewable error in finding that the "compelling reasons" exception was not applicable.
Held, the application should be allowed.
Article 1C(5) of the United Nations Convention Relating to the Status of Refugees provides for the exemption from cessation based on change of circumstances for pre-1951 refugees (statutory refugees) who are able to make a case for not returning home based on "compelling reasons arising out of previous persecution". Subsection 108(4) of the Immigration and Refugee Protection Act extends the Article 1C(5) "compelling reasons" exception to both statutory refugees and modern day refugees, and refers to "compelling reasons arising out of previous persecution, torture, treatment or punishment". It does not require that such acts or situation be "atrocious" and "appalling". The issue is whether, considering the totality of the situation, it would be wrong to reject a claim or make a declaration that refugee protection has ceased in the wake of a change of circumstances. Each case must be assessed and decided on its own merit, based on the totality of the evidence submitted by the claimant. Some of the circumstances which may warrant the application of the "compelling reasons" exception include continuing psychological trauma arising from past persecution. The question to be asked is, should the claimant be made to face the background set of life which he or she left, even if the principal characters may no longer be present or no longer be playing the same roles? It is the state of mind of the claimant that creates the precedent, although the country, the conditions and the attitude of the population are factors that may come into the balance. Consideration should also be given to the claimant's age, cultural background and previous social experiences. In the case at bar, the RPD erred in inferring that the test in Obstoj necessitates that the persecution reach a level to qualify it as "atrocious" and "appalling" for the "compelling reasons" exception to apply. This error vitiated the RPD's determination that the applicants were not Convention refugees. The Board failed to determine whether repatriation in Tanzania would cause Mr. Suleiman undue emotional suffering, so as to constitute, considering all the circumstances of this case and the gravity of the past persecution, "compelling reasons" justifying the applicants' refusal to avail themselves of the protection of their country. The death of a cousin and the brunt of Mr. Suleiman's maltreatment could certainly in his mind, due to his delicate state (Mr. Suleiman suffered from symptoms of clinical depression and post-traumatic anxiety), bring undue hardship to bear. The RPD should have thoroughly examined this evidence in order to make a proper assessment with regard to subsection 108(4). In addition, having found that the treatment suffered by the applicants was "deplorable" which is defined as "exceedingly bad", the Board should have stated why the acts committed could not be considered "compelling reasons".
statutes and regulations judicially
considered
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 12.
| Immigration Act, R.S.C., 1985, c. I-2, s. 2(2) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 1), (3) (as enacted idem). |
| Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 3(3), 96, 97, 108(4). |
| United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art. 1A(1), 1C(5). |
cases judicially considered
considered:
Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2 F.C. 739; (1992), 93 D.L.R. (4th) 144; 142 N.R. 81 (C.A.); Elemah v. Canada (Minister of Citizenship and Immigration), 2001 FCT 779; [2001] F.C.J. No. 1123 (T.D.) (QL); Yamba v. Canada (Minister of Citizenship and Immigration) (2000), 254 N.R. 388 (F.C.A.); Arguello-Garcia v. Canada (Minister of Employment and Immigration) (1993), 70 F.T.R. 1 (F.C.T.D.); Velasquez v.Canada (Minister of Employment and Immigration) (1994), 76 F.T.R. 210 (F.C.T.D.).
referred to:
Kulla v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1347 (T.D.) (QL); Ye v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 584 (C.A.) (QL); Rahnema v. Canada (Solicitor General) (1993), 68 F.T.R. 298; 22 Imm. L.R. (2d) 127 (F.C.T.D.); El-Naem v. Canada (Minister of Citizenship and Immigration) (1997), 126 F.T.R. 15; 37 Imm. L.R. (2d) 304 (F.C.T.D.); Jiminez v. Canada (Minister of Citizenship and Immigration) (1999), 162 F.T.R. 177 (F.C.T.D.); Biakona v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 220 (F.C.T.D.); Hassan v. Canada (Minister of Employment and Immigration) (1994), 77 F.T.R. 309 (F.C.T.D.).
authors cited
Canadian Oxford Dictionary. Toronto: Oxford University Press Canada, 2001, "appalling", "atrocious", "atrocity", "deplorable", "deplore".
Concise Oxford Dictionary of Current English. Oxford: Clarendon Press, 1990, "atrocious", "atrocity", "appalling".
Goodwin-Gill, Guy S. The Refugee in International Law, 2nd ed. Oxford: Clarendon Press, 1996.
Hathaway, James C. The Law of Refugee Status. Toronto: Butterworths, 1991.
United Nations. Office of the United Nations High Commissioner for Refugees. Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees. Geneva, January 1988.
Waldman, Lorne. International Law and Practice, looseleaf, Vol. 1 Toronto: Butterworths, 1992.
APPLICATION for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board that the applicants were not Convention refugees or persons in need of protection, and that the standard for the application of the "compelling reasons" exception pursuant to subsection 108(4) of the Immigration and Refugee Protection Act was not met even though finding that the applicants had been subjected to "deplorable" treatment. Application allowed.
appearances:
Mangesh S. Duggal for applicants.
Robert Bafaro for respondent.
solicitors of record:
Mangesh S. Duggal, Toronto, for applicants.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
[1]Martineau J.: The applicants seek judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Board) dated January 29, 2003, wherein the Board found that the applicants are not "Convention refugee[s]" [United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6] or "person[s] in need of protection" as defined in sections 96 and 97, respectively, of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
BACKGROUND
[2]Mr. Juma Khamis Suleiman and his wife Mrs. Zakia Salum Abdula are citizens of Tanzania who allege a well-founded fear of persecution at the hands of Tanzanian authorities by reason of their political opinion and their membership in a particular social group, namely their family.
[3]The following facts are not disputed.
[4]Mr. Suleiman has been a member of the opposition party Civic United Front (CUF) since February 6, 1996. As a result of his CUF involvement, he was denied access to schooling, denied the right to vote in the 1995 elections, and was subjected to ongoing disruption of his business by police, including the 1996 confiscation of his goods. In April of the same year, he was detained for three days without charges during which time he was beaten and told to cease supporting the CUF. On August 20, 2000, when he attempted to register for the October 2000 elections, he was falsely charged by police with disrupting the election registration process. He was arrested and detained for two weeks during which he was interrogated about his CUF activities and beaten with canes. He was released on September 4, 2000 on condition that he abandon his CUF activities.
[5]Mrs. Abdula, also a CUF supporter, was also refused voter registration and witnessed her husband's arrest. During his detention, she tried to visit him three times but was denied access. In addition, the police regularly visited the house to question her about her husband's CUF involvement.
[6]In mid-September 2000, after seeing three uniformed police officers at the front door of their home, the applicants fled through the back door to an uncle's residence where they remained in hiding. While in hiding, their friend, Mohamed Ali, with whom they had shared their residence, warned them that police had visited the house and questioned him about the applicants. He also informed them that a warrant was issued for the arrest of Mr. Suleiman. The applicants left Tanzania on September 21, 2000 and arrived in Canada on September 25, 2000 where they claimed refugee status. Following their arrival, they learned that Mr. Suleiman's brother, Salum, had been detained and beaten by police for being an alleged CUF mastermind. In addition, Mr. Suleiman testified at the hearing that police continue to show interest in him and that his cousin Mwalim had been killed in late January 2001 by government agents, for his political activities.
THE BOARD'S DECISION
[7]The Board found Mr. Suleiman credible and accepted that he suffered past persecution in Tanzania because of his opposition party activism and membership in the CUF. The Board also accepted that Mrs. Abdula had been harassed by police because of her political opinion and because she is the wife of a CUF member. The Board further found that Mr. Suleiman's brothers, Mohamed, Said and Salum and his cousin Mwalim also suffered persecution by police for their CUF activism. Nevertheless, the Board determined that, in light of the changed country conditions, the applicants' fear of persecution is not objectively well-founded and dismissed their claim for refugee status under the Convention.
[8]Before refusing Convention refugee status to the applicants, the Board considered the applicability of the "compelling reasons" exception found in subsection 108(4) of the Act. This provision, which closely resembles subsection 2(3) [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 1] of the Immigration Act, R.S.C., 1985, c. I-2 (the former Act), provides that despite the fact that the reasons for which a person sought refugee protection ceased to exist, refugee protection should nevertheless be conferred where "compelling reasons" arise out of previous persecution, torture, treatment or punishment which justify a person's refusal to avail himself or herself of the protection of the country which he or she left.
[9]In the case at bar, although the Board found "the treatment afforded the principal claimant and his family to have been deplorable", and also accepted that Mr. Suleiman was detained (once for three days and once for 20 days) and maltreated by police who beat him repeatedly using canes, although "persecutory", such mistreatment did not, in the Board's view, reach a level to qualify it as "atrocious" and "appalling". While the Board accepted that Mr. Suleiman suffers from symptoms of clinical depression and post-traumatic anxiety as a result of past persecution, the Board concluded that the standard set in Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2 F.C. 739 (C.A.) for the application of the "compelling reasons" exception was not met: "it does not bring the claimant over the standard set in Obstoj for the application of compelling reasons. I find that the claimant did not suffer appalling and atrocious treatment as set out in Obstoj".
THE ISSUE
[10]At the hearing before this Court, counsel indicated that the applicants would no longer pursue the other grounds of review mentioned in their memoranda of arguments. Therefore, the sole remaining issue is whether the Board made a reviewable error in finding that the "compelling reasons" exception is not applicable.
ANALYSIS
[11]At the outset, it must be underlined that the determination of "compelling reasons" raises mixed questions of fact and law. While there is no statutory definition of the expression "compelling reasons" used in the Act, judicial dicta have served to delineate the general scope and purpose of this exception. Equipped with these guidelines, it is then for the competent tribunal to exercise its judgment in light of the particular experience of each claimant.
[12]In Obstoj, reference by the Federal Court of Appeal is made to Article 1C(5) of the United Nations Convention Relating to the Status of Refugees, July 28, 1951, [1969] Can. T.S. No. 6 (the Convention) which is clearly the inspiration for the "compelling reasons" exception found in subsection 2(3) of the former Act, and now in subsection 108(4) of the Act. Article 1C(5) provides for the exemption from cessation based on change of circumstances for pre-1951 refugees (the statutory refugees) who are able to make a case for not returning home based on "compelling reasons arising out of previous persecution".
[13]Speaking of Article 1C(5), James C. Hathaway, in his monograph The Law of Refugee Status, Toronto: Butterworths, 1991, at pages 203-204, notes: "[T]he intention of the drafters was twofold: first, to recognize the legitimacy of the psychological hardship that would be faced by the victims of persecution were they to be returned to the country responsible for their maltreatment; and second, to protect the victims of past atrocities from harm at the hands of private citizens, whose attitudes may not have reformed in tandem with the political structure".1 The express reference to Article 1A(1) indicates that the exception applies only to statutory refugees, as noted in the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Office of the United Nations High Commissioner for Refugees, Geneva, January 1988 (the Handbook). The exception, however, reflects a more general humanitarian principle, which could also be applied to refugees other than statutory refugees as indicated at paragraph 136:
It is frequently recognized that a person who--or whose family--has suffered under atrocious forms of persecution should not be expected to repatriate. Even though there may have been a change of régime in his country, this may not always produce a complete change in the attitude of the population, nor, in view of his past experiences, in the mind of refugee.
[14]Indeed, as was decided by the Federal Court of Appeal in Obstoj, the Canadian legislation extends the "compelling reasons" exception contained in Article 1C(5) of the Convention to both statutory refugees and modern day refugees. While Desjardins J.A. notes at page 751 that subsections 2(2) and (3) of the former Act "were added to the definition of a Convention refugee in order to bring the definition into conformity with the United Nations Convention Relating to the Status of Refugees", Hugessen J.A. (as he then was) states in this respect at page 748:
It is hardly surprising, therefore, that it should also be read as requiring Canadian authorities to give recognition of refugee status on humanitarian grounds to this special and limited category of persons, i.e. those who have suffered such appalling persecution that their experience alone is a compelling reason not to return them, even though they may no longer have any reason to fear further persecution.
[15]Although Hugessen J.A. adds [at page 748] that "[t]he exceptional circumstances envisaged by subsection 2(3) must surely apply to only a tiny minority of the present day claimants", he immediately remarks that he "can think of no reason or principle . . . why the success or failure of claims by such persons should depend upon the purely fortuitous circumstance of whether they obtained recognition as a refugee before or after conditions had changed in their country of origin". In reading the two sentences together, it is reasonable to infer that Hugessen J.A. is referring to the fact that since a great number of claims actually decided in Canada do not involve a change of circumstances in the country conditions, in practice, this leaves only a minority of claimants who will face the burden of establishing that "compelling reasons" warrant that they nevertheless be granted refugee status. Therefore, in my opinion, it would be wrong to interpret the dicta of Hugessen J.A. in Obstoj, in a literal manner and without consideration to the "general humanitarian principle" referred to above.
[16]It must not be forgotten that subsection 108(4) of the Act refers only to "compelling reasons arising out of previous persecution, torture, treatment or punishment". It does not require a determination that such acts or situation be "atrocious" and "appalling". Indeed, a variety of circumstances may trigger the application of the "compelling reasons" exception.2 The issue is whether, considering the totality of the situation, i.e. humanitarian grounds, unusual or exceptional circumstances, it would be wrong to reject a claim or make a declaration that refugee protection has ceased in the wake of a change of circumstances. "Compelling reasons" are examined on a case-by-case basis. Each case is a "cas d'espèce". In practice, this means that each case must be assessed and decided on its own merit, based on the totality of the evidence submitted by the claimants. As was decided by the Federal Court of Appeal in Yamba v. Canada (Minister of Citizenship and Immigration) (2000), 254 N.R. 388, at paragraph 6, in every case in which the Board concludes that a claimant has suffered past persecution, where there has been a change of country conditions to such an extent as to eliminate the source of the claimant's fear, the Board is obligated to consider whether the evidence presented establishes the existence of "compelling reasons".
[17]Accordingly, it would be hazardous to list all the circumstances which may warrant the application of the "compelling reasons" exception or to establish a rigid test (notably based on the level of atrocity). However, besides the general indications contained in the Handbook or flowing from Obstoj and the jurisprudence, James C. Hathaway's comments at page 204 provide some guidance:
The exemption clause in the Convention is not . . . structured to provide general humanitarian relief based on factors such as family circumstances or infirmity, but focuses squarely on compelling circumstances which are linked to past persecution. Atle Grahl-Madsen suggested that the existence of a psychological distance between the refugee and her former home, the continued unpopularity in the country of origin of the views or personal characteristics of the refugee, or the severing of familial, social and other linkages between the refugee and her state of origin are the sorts of concerns which warrant exemption from return. In contrast, essentially economic motivations or considerations of personal convenience are not sufficient.
[18]The following comments found in Lorne Waldman's Immigration Law and Practice, looseleaf, Vol. 1, at paragraph 8.94, are also helpful:
Where a refugee suffers continuing psychological trauma arising from past persecution, and associated in his or her mind with the home country, cessation would not be warranted if repatriation would cause the refugee emotional suffering. It is this consideration that leads Goodwin-Gill to argue that the clause should be liberally applied. Similarly, if supporters of the former persecuting regime pose a threat to the physical or emotional well-being of the refugee in the home country, cessation would not operate.
[19]The degree, to which a refugee claimant lives his anguish upon thought of being forced to return from where he came, is subject to the state of his psychological health (strength). The formulative question to ask in regard to "compelling reasons" is, should the claimant be made to face the background set of life which he or she left, even if the principal characters may no longer be present or no longer be playing the same roles? The answer lies not so much in established determinative conclusive fact but rather more to the extent of travail of the inner self or soul to which the claimant would be subjugated. The decision, as all decisions of a compelling nature, necessitates the view that it is the state of mind of the refugee claimant that creates the precedent--not necessarily the country, the conditions, nor the attitude of the population, even though those factors may come into the balance. Moreover, this judgment does not involve the imposition of Western concepts on a subtle phenomenon which roots in the individuality of human nature, an individuality which is unique and has grown in an all-together different social and cultural environment. Therefore, consideration should also be given to the claimant's age, cultural background and previous social experiences.3 Being resilient to adverse conditions will depend on a number of factors which differ from one individual to another.
[20]That being said, this Court has already recognized that past acts of torture and extreme forms of mental abuse, alone, in view of their gravity and seriousness, can be considered "compelling reasons" for giving refugee status to a claimant and the members of his immediate family despite the fact that these acts have occurred many years before.4 This should come as no surprise since the right not to be subject to torture and cruel, inhuman and degrading treatment is a fundamental right equally protected under domestic and international law which Canada is committed to guarantee and promote.5 Moreover, while the case law does not impose "a further test of continuing psychological after-effect",6 the failure of the Tribunal to take account of relevant medical evidence in this regard constitutes a reviewable error.7
[21]Given what has happened to Mr. Suleiman and his family in Tanzania (not just the beatings with canes but also the disruption of business by police and the confiscation of his goods in 1996), the applicants' counsel further submits that if the latter does not come within the ambit of the compelling reasons exception, then no one can. While I recognize that the Board, with its experience and expertise, is best able to assess whether there are "compelling reasons",8 this Court should not hesitate to interfere with the Board's conclusion where its unreasonableness is satisfactorily demonstrated. In the case at bar, it is apparent that the Board erred in inferring that the test in Obstoj necessitates that the persecution reach a level to qualify it as "atrocious" and "appalling" for the "compelling reasons" exception to apply. This error of law vitiates the subsequent determination made by the Board that the applicants are not Convention refugees.
[22]While the Board acknowledged that Mr. Suleiman suffers from symptoms of clinical depression and post-traumatic anxiety, in view of its finding that the high standard set in Obstoj was not met, the Board failed to determine whether repatriation in Tanzania would cause him undue emotional suffering, so as to constitute, considering all the circumstances of this case and the gravity of the past persecution, "compelling reasons" justifying the applicants' refusal to avail themselves of the protection of their country. While Obstoj and Hassan refer to "exceptional circumstances", as I have explained earlier, it is by no means an invitation to apply the "compelling reasons" exception in a systemic manner or without regard to the effects past persecution has had on an individual claimant and his family. In the case at bar, the Board found the applicants' evidence credible. That which, alone and objectively, may not be considered grave or serious enough to constitute "compelling reasons", may in fact, in the particular circumstances of the claimant and his family in the state they find themselves, be nevertheless viewed as grave or serious enough to project an image of anguish, unreasonable to conceive the possibility of return. While it is not necessary that I express a definite opinion, in, at least a prima facie fashion, the death of a cousin and the brunt of the maltreatment described above can certainly in the principal claimant's mind, due to his delicate state, bring undue hardship to bear. Therefore, the Board should have thoroughly examined this evidence in order to make a proper assessment with regard to subsection 108(4) of the Act.
[23]That being said, I note that in its decision, the Board qualified the treatment suffered by Mr. Suleiman and his family as "deplorable". In The Canadian Oxford Dictionary, Toronto: Oxford University Press Canada, 2001, the words "deplorable" and "deplore" have the following meanings:
deplorable: . . . 1 - exceedingly bad
deplore: . . . 2 - be scandalized by; find exceedingly bad
[24]On the other hand, in the same dictionary, the words "appalling", "atrocious" and "atrocity" are defined as follows:
appalling: . . . 1 - shocking, unpleasant; bad
atrocious: 1 - very bad or unpleasant . . . 2 - extremely savage or wicked
atrocity: 1 - an extremely wicked or cruel act, esp. one involving physical violence or injury. 2 - extreme wickedness. 3 - something that evokes outrage or disgust
[25]The Board has saved the reader shocking details of Mr. Suleiman and family's sad story. Be that as it may, it seems to me that if the treatment suffered by Mr. Suleiman and his family, was "deplorable", that is "exceedingly bad", I fail to see then why it would not be "appalling" or "atrocious". Here, the Board accepted that Mr. Suleiman was beaten by the police with canes which, in itself, is certainly a cruel treatment. Luckily, Mr. Suleiman was not killed by the police as was his cousin Mwalim in 2001. Surely, if the treatment suffered by Mr. Suleiman and his family was "deplorable", the Board should state, in the circumstances of the present case, why the acts committed cannot be considered "compelling reasons". The mere fact that such maltreatment "was, lamentably, not unusual for persons running afoul of security forces in Tanzania at the time" does not excuse the gravity of the past persecution which in this case is still fairly recent and has apparently indelibly marked the mental state of Mr. Suleiman. Moreover, the generalized character of the past persecution in Tanzania should not serve as a bar to the application of the "compelling reasons" exception.
[26]For the above reasons, the application for judicial review shall be granted. The matter shall be referred back for redetermination by either the same member or another member of the Board (as is most convenient for the Board) on the basis of the existing record. The redetermination should be limited to whether or not the applicants fall within the ambit of the "compelling reasons" exception found in subsection 108(4) of the Act having particular regard to the indications contained in the present reasons for order. In view of the result of this case, it is not necessary to certify a question of general importance to the Federal Court of Appeal. The respondent has proposed no question for certification. The first question proposed by applicants' counsel with respect to the nature of the burden of proof is not determinative, and the second question regarding the nature of the test under subsection 108(4) of the Act is answered by the case law.
1 In this regard, another commentator also suggested that the exception "is mainly intended to cover the case of victims of racial persecution where, unlike political persecution, the population as well as the government often took an active part" (Pompe, C. A. "The Convention of 28 July 1951 and the international protection of refugees", HCR/INF/42 (May 1958) 10, N.3; originally published in Dutch in Rechtsgeleerd Magazyn Themis, (1956), 425-01; as quoted by Goodwin-Gill, Guy S., The Refugee in International Law, 2nd ed., (Oxford: Clarendon Press, 1996, at p. 87).
2 In this regard, as stated by Rouleau J. in Elemah v. Canada (Minister of Citizenship and Immigration), 2001 FCT 779; [2001] F.C.J. No. 1123 (T.D.) (QL), at para. 28; "The Court, in Obstoj, supra, did not establish a test which necessitates that the persecution reach a level to qualify it as "atrocious" and "appalling". Rather, the Board must thoroughly consider all the documentary and oral evidence, including the nature of the incidents of torture and the medical reports provided by the parties in order to assess, as is stated in the legislation, if there are "compelling reasons" not to return him" [my emphasis]. MacKay J. in Kulla v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1347 (T.D.) (QL), at para. 6, has framed in a similar manner the issue the Board must address where the "compelling reasons" exception is raised.
3 This is always the case where the tribunal is assessing human behaviour or the subjective fear of any claimant: Ye v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 584 (C.A.) (QL); Rahnema v. Canada (Solicitor General) (1993), 68 F.T.R. 298 (F.C.T.D.), at para. 20; El-Naem v. Canada (Minister of Citizenship and Immigration) (1997), 126 F.T.R. 15 (F.C.T.D.).
4 For example, in Arguello-Garcia v. Canada (Minister of Employment and Immigration) (1993), 70 F.T.R. 1 (F.C.T.D.) McKeown J. found that the torture and sexual assault experienced several years before by the claimant in El Salvador, based on objective factors alone, was clearly sufficiently serious, "atrocious" and "appalling" to warrant the application of subsection 2(3). In this regard, he referred to the definitions of "atrocious", "atrocity" and "appalling" found in the Concise Oxford Dictionary of Current English, Oxford: Clarendon Press, 1990 which variously characterize them as "very bad or unpleasant", "extremely savage or wicked", "an extremely wicked or cruel act, esp. one involving physical violence or injury", "shocking, unpleasant, bad". While noting [at para. 17] that "the right not to be subject to torture and cruel, inhuman and degrading treatment is a fundamental right which enjoys the highest intentional protection", he concluded that the Board had clearly erred in determining that "the test set out in Obstoj is not met". Similarly, in Velasquez v. Canada (Minister of Employment and Immigration) (1994), 76 F.T.R. 210 (F.C.T.D.), Gibson J. suggested that the claimant, a woman of 70 years of age who had witnessed a number of years before the rape of her husband by members of a death squad in El Salvador, could certainly invoke the "compelling reasons" exception, even though she "may not have suffered directly, appalling persecution" [at para. 9].
5 Subsection 3(3) of the Act and section 12 of the Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]].
6 Jiminez v. Canada (Minister of Citizenship and Immigration) (1999), 162 F.T.R. 177 (F.C.T.D.), at paras. 32-34.
7 Arguello-Garcia, supra note 4, at paras. 13-16; Biakona v. Canada (Minister of Citizenship and Immigration) (1999), 164 F.T.R. 220 (F.C.T.D.), at paras. 42-43; Kulla, supra note 2, at para. 7.
8 Hassan v. Canada (Minister of Employment and Immigration) (1994), 77 F.T.R. 309 (F.C.T.D.), at para. 14.