Jiminez v. Canada ( Minister of Citizenship and Immigration )
IMM-1718-98
Rouleau J.
25/1/99
14 pp.
Application for judicial review of CRDD decision applicant not Convention refugee-Fear of persecution in Immigration Act, s. 2(3)-Issues concerning interpretation of Act, s. 2(3) and whether F.C.T.D. decisions in Arguello-Garcia v. Canada (Minister of Employment and Immigration) (1993), 21 Imm. L.R. (2d) 285 (F.C.T.D.) and Shahid v. Canada (Minister of Citizenship and Immigration) (1995), 28 Imm. L.R. (2d) 130 (F.C.T.D.) established additional test of "continuing psychological after-effects of previous persecution"-Applicant fled El Salvador in 1979 after beaten, burned, tortured, raped, shot and left for dead-Lived in United States for 7 years, then entered Canada in 1987 and claimed refugee status-Committed offences related to drug and alcohol abuse in 1991 and 1993-Sent to psychiatric hospital for evaluation and assessment-Eventually entered drug and alcohol abuse counselling-In April 1996, as result of savage beating, suffered severe brain injury and became mentally incapacitated-Doctor determined applicant had symptoms consistent with posttraumatic stress disorder-In November 1997, psychiatrist concluded applicant suffered from dementia due to head injury, with drugs and alcohol as possible contributing factors-Psychiatrist concluded applicant might have suffered from posttraumatic stress disorder following 1979 torture-Board found that although applicant had been beaten, tortured, burned, raped, shot and left for dead in 1979, country conditions have changed dramatically since 1979-Board decided not established that applicant's evident suffering continued effect of past persecution-Application allowed-Leading case with respect to interpretation of Immigration Act, s. 2(3) Canada (Minister of Employment and Immigration) v. Obstoj, [1992] 2 F.C. 739 (C.A.): persons who have suffered under atrocious forms of persecution should not be expected to repatriate, even though they may no longer have any reason to fear further persecution due to fundamental changes in country of origin-Case law, however, not suggesting further test of continuing psychological after-effects-In Arguello-Garcia, Trial Judge stated on "objective factors alone", would have found claimant's suffering to warrant application of Act, s. 2(3), and evidence of post-traumatic stress disorder simply reinforced conclusion-Board failed to make determination as to whether or not applicant qualified under exception provided under Act, s. 2(3)-Inappropriate to dictate result to CRDD as question of fact that can only be determined by Board: whether or not applicant meeting exceptional circumstances envisioned by Act, s. 2(3)-Board herein seemed to focus exclusively on whether applicant's current suffering "continued effect of past persecution"-Board accepted fact applicant beaten, burned, tortured, raped, shot and left for dead, but failed to comment on whether nature of persecution sufficiently appalling and atrocious to warrant application of Act, s. 2(3)-Clearly error of law-Immigration Act, R.S.C., 1985, c. I-2, s. 2(3) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1).