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A-720-80
Luis Rene Amayo (Eneina) (Applicant)
v.
Minister of Employment and Immigration (Respondent)
Court of Appeal, Urie and Ryan JJ. and Kelly D.J.—Toronto, February 26 and 27, 1981.
Judicial review — Immigration — Application to set aside a decision of the Immigration Appeal Board refusing to allow an application for redetermination of a claim for refugee status to proceed — Board appears to have considered that physical mistreatment was an essential element of persecution Whether Board erred in law — Application allowed — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review. COUNSEL:
John P. Moore for applicant. M. Thomas for respondent.
SOLICITORS:
John P. Moore, c/o Toronto Community Legal Assistance Services, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
Theffollowing are the reasons for judgment of the Court delivered orally in English by
URIE J.: This section 28 application is brought to review and set aside a decision of the Immigra tion Appeal Board ("the Board") refusing to allow the application of the applicant herein for redeter- mination of his claim for Convention refugee status, to proceed.
In our view it is implicit from a careful reading of the whole of the reasons for judgment of the Board that it considered that physical mistreat ment is an essential element in a determination of whether or not a person has, in the past, suffered from persecution. If that is not a correct reading of its reasons, then its finding that the applicant was not persecuted for his political beliefs is against
both the evidence and the weight of evidence. There is, in our view, ample evidence in the tran script of the examination under oath before the Senior Immigration Officer and in the applicant's declaration filed pursuant to subsection 70(2) of the Immigration Act, 1976, S.C. 1976-77, c. 52, to demonstrate that the applicant over a period of years suffered persecution from various sources at his place of work and, after his discharge there from, during his period of unemployment prior to coming to Canada, all as a result of his former political activities and beliefs.
In either case, the Board, in our view, erred in law. The section 28 application, therefore, must succeed. The determination of the Board dated October 2, 1980 will be set aside and the matter will be referred back to the Board for reconsidera tion in a manner not inconsistent with these reasons.
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