A-364-81
Alfredo Manuel Oyarzo Marchant (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Thurlow C.J., Heald J. and Kelly
D.J.—Toronto, November 17 and December 16,
1981.
Judicial review — Applications to review — Immigration
Immigration Appeal Board refused to permit application for
redetermination of refugee status to proceed and determined
that applicant was not Convention refugee — Convention
refugee defined in s. 2(1) of Immigration Act, 1976 — Evi
dence that applicant imprisoned, beaten and interrogated
because of religious and political activities — Later prevented
from continuing education, required to report to police weekly
and threatened by security forces at home and at work —
Board's reasons appear to imply that 'persecution" necessarily
requires deprivation of liberty — If so, Board erred in law —
In any event, Board erred in disregarding uncontradicted evi
dence that applicant fired because of religious and political
activities, prevented from obtaining further employment and
harassed and threatened with detention — Board held that
political activities of applicant could not be considered as
being so politically involved as to fear persecution — Board
erred in law in substituting its opinion of seriousness of
applicant's activities for that of ruling government — Test is
whether ruling government considers conduct to be political
activity — Past incidents part of whole picture and cannot be
discarded entirely as basis for fear, even though what has
happened since has left them in background — Fact that
applicant unable to continue education evidence of continuing
disability resulting from political opinion — Matter referred
back to Board for reconsideration — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Immigration Act,
1976, S.C. 1976-77, c. 52, ss. 2(1), 71(1).
Amayo v. Minister of Employment and Immigration
[1982] 1 F.C. 520, referred to. Orellana v. Minister of
Employment and Immigration, Federal Court, A-9-79,
judgment dated July 25, 1979, referred to. Astudillo v.
Minister of Employment and Immigration, Federal Court,
A-650-78, judgment dated October 5, 1979, referred to.
APPLICATION for judicial review.
COUNSEL:
N. Goodman for applicant.
M. W. Duffy for respondent.
SOLICITORS:
Knazan, Jackman & Goodman, Toronto, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: I have had an opportunity to
read and consider the reasons for judgment pre
pared by Mr. Justice Heald. I agree that the
decision of the Immigration Appeal Board should
be set aside and that the matter should be referred
back to the Board for reconsideration.
The essential question for the Board to consider
was whether the evidence disclosed a likely case of
a well-founded fear of persecution for political
opinion. Fear itself is subjective. Whether it is
well-founded is objective. What the Board con
sidered was the foundation.
There is uncontradicted evidence that in Octo-
ber 1973, when the applicant was a youth 16 years
of age, he was arrested and subjected to detention
and maltreatment over a period of three weeks
because of his involvement in a political organiza
tion known as MAPU. There is also evidence that
for the same reason he was subsequently prevented
from continuing his education at any institution of
learning in his country. There is further evidence
that in June 1974, he was detained again and
continued in detention until some time in August
1974; that he was harshly beaten and interrogated,
principally about his brother who was also in
detention for his political involvement; that after
his release he was required to report weekly to a
police station during September and October,
1974; that he was threatened by security forces at
home and at work if he continued to participate
and that on account of such persecution he left
Chile in May of 1975 and went to Argentina.
The only comment of the Board as to the evi
dence of what transpired in this period is:
The Board is of the opinion that being a delegate from the
student council and a sympathizer of Mnru, at the age of 14 to
16, cannot be considered as being so politically involved as to
fear persecution.
In my opinion, in the face of the uncontradicted
evidence, the view expressed by the Board can only
be regarded as arbitrary and as having been
reached without regard for the evidence. The
Board may have considered the incidents of 1973
and 1974 as no longer relevant or persuasive
having regard to what happened to the applicant
since then, but that is not what the Board said,
and, in any case, since it is the foundation for a
present fear that must be considered, such inci
dents in the past are part of the whole picture and
cannot be discarded entirely as a basis for fear,
even though what has happened since has , left
them in the background. The fact that because of
his political opinion and involvement he was not
permitted to continue his education is, in itself,
evidence of a continuing disability resulting from
his political opinion and that he can expect to
suffer further discrimination and disability in his
country because of such opinion.
I would, on this ground alone, set aside the
decision and refer the matter back to the Board.
There is, however, the further ground discussed
in the reasons of Mr. Justice Heald. I agree with
his view that the Board appears to have treated
what happened to the applicant after he returned
to Chile from Argentina in April 1976 as not
amounting to persecution because it did not
include arrest or detention. In so doing the Board,
as it seems to me, has failed to consider what
happened not only as to whether it could be in
itself a form of persecution, but also as to whether
it could be the basis, along with the incidents of
1973 and 1974, of a well-founded fear of future
persecution for his political opinion.
I would dispose of the application as proposed
by Mr. Justice Heald.
KELLY D.J.: I concur.
* * *
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside a decision of the Immigration
Appeal Board dated June 10, 1981, wherein that
Board refused to permit an application by the
applicant for redetermination of refugee status to
proceed and determined that the applicant is not a
Convention refugee. Counsel for the applicant
advanced two grounds of attack on the validity of
subject decision which, in my view, have merit.
I will deal initially with the submission that the
Board erred in law in its definition of the elements
required before an individual can be considered to
have been persecuted within the meaning of the
term "Convention refugee" as that term is defined
in subsection 2(1) of the Immigration Act, 1976,
S.C. 1976-77, c. 52. In its reasons (Case Appendix
I, pages 4 and 5) the Board stated:
After his first arrest of October, 1973, the applicant found
employment and was able to travel to Argentina and return to
Chile after one year without suffering any consequences.
Although active in organizing a sort of union which appears to
be outlawed since the day of military coup, he was never
arrested or persecuted since 1974. His claim that he had to
change his address to avoid the security forces does not seem to
make any sense as the applicant had steady employment. The
same security forces were visiting him at his place of employ
ment from time to time and had an opportunity to arrest him
from 1974 to 1979 if they so wished.
It is noted from the above quotation that the
Board in stating that the applicant "was never
arrested or persecuted ..." appears to imply that
"arrest" is an essential element in "persecution".
In the same passage quoted supra the Board
attaches significance to the fact that the security
forces had ample opportunity between 1974 and
1979 to arrest the applicant if they so wished. In
my view, the Board's reasons imply that it defined
"persecution" as necessarily requiring deprivation
of the applicant's liberty. If this is so, then the
Board erred in law, in my view, in applying such a
restrictive definition.' If this is not so, then the
Board erred in failing to have regard to extensive
' For a similar view with respect to the necessity for physical
mistreatment as an essential ingredient of persecution, see:
Amayo v. Minister of Employment and Immigration [1982] 1
F.C. 520.
uncontradicted evidence that the applicant was
fired because of his activities in the Christian
centre and the union; was prevented because of
that activity from obtaining further employment;
and was harassed and threatened with detention
until he left Chile for Canada.
Coming now to the second submission of error in
law which, in my view, also has merit, that submis
sion is to the effect that the Board erred in law in
its determination of whether the applicant was a
Convention refugee when it substituted its own
assessment of the seriousness of the applicant's
activities for that of the ruling government. This
submission is based on the following statement by
the Board in its reasons (Case Appendix I, page
4):
The Board is of the opinion that being a delegate from the
student council and a sympathizer of MAPU, at the age of 14 to
16, cannot be considered as being so politically involved as to
fear persecution.
The fact remains however that the uncontradicted
evidence establishes that in 1973, when he was 16,
the applicant was placed in detention for three
weeks where he was beaten with rifle butts and
with fists and was continually interrogated. Thus
the persecution at age 16 is a fact. Accordingly the
Board, in the above passage, has replaced the
opinion of the military government, as evidenced
by the actions of that government, with its own
opinion, wherever it may have obtained that opin
ion. This Court has held that to act in this fashion
constitutes an error of law. 2 In interpreting politi
cal activities, the crucial test is not whether the
Board considers that the applicant engaged in
political activities, but whether the ruling govern
ment of the country from which he claims to be a
refugee, considers his conduct to be political activ
ity. Applying that test to the facts of this case, it
seems clear that the governing authorities in Chile
considered applicant's conduct at age 16 to be
political activity since he was severely maltreated
for that conduct. Thus, in my view, the Board
2 See: Orellana v. Minister of Employment and Immigration,
Federal Court, A-9-79, judgment dated July 25, 1979. See also:
Astudillo v. Minister of Employment and Immigration, Feder
al Court, A-650-78, judgment dated October 5, 1979.
erred in law in failing to have regard to this
evidence of persecution.
Accordingly, it is my view that the Board erred
in law in the two material particulars set forth
supra. I would set aside the decision and refer the
matter back to the Immigration Appeal Board for
reconsideration on the evidence in accordance with
subsection 71(1) and the other provisions of the
Immigration Act, 1976.
KELLY D.J.: I concur.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.