Date: 20000407
Docket: A-686-98
CORAM: ISAAC, J.A.
ROBERTSON, J.A.
SEXTON, J.A.
BETWEEN:
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Appellant
- and -
YAMBA ODETTE WA YAMBA
BIABOLA KARINE YAMBA
BALOWA MARIE CLAIRE YAMBA
MBWIBWA CHRISTIE MUYUMBA
Respondents
REASONS FOR JUDGMENT
(Judgment delivered from the Bench at Toronto, Ontario
on Thursday, April 6, 2000)
ROBERTSON J.A.
[1] This is an appeal from a decision of a Motions Judge dated November 6, 1998 setting aside a decision of the Convention Refugee Determination Division whereby the respondents were determined not to be Convention refugees. The respondents, the sister and one of their daughters, claimed refugee status on the basis of imputed political opinion and membership in a social group, namely family membership. Their claim was denied because of a change in country conditions as contemplated by paragraph 2(2)(e) of the Immigration Act. At their hearing, the respondents did not raise the issue as to the applicability of subsection 2(3) of the Act, nor did the Refugee Division consider subsection 2(3) in rendering its decision. In effect, subsection 2(3) provides that even if a person"s fear of persecution ceases to exist because of a change in country conditions, that person remains entitled to refugee status if he or she establishes "compelling reasons" arising out of the previous persecution. The relevant provisions read as follows:
| 2.(2) A person ceases to be a Convention refugee when |
| (a) the person voluntarily reavails himself of the protection of the country of his nationality; |
| (b) the person voluntarily reacquires his nationality; |
| (c) the person acquires a new nationality and enjoys the protection of the country of that new nationality; |
| (d) the person voluntarily re-establishes himself in the country that the person left, or outside of which the person remained, by reason of fear of persecution; or |
| (e) the reasons for the person"s fear of persecution in the country that the person left, or outside of which the person remained, cease to exist. |
| (3) A person does not cease to be a Convention refugee by virtue of paragraph (2)(e) if the person establishes that thee are compelling reasons arising out of any previous persecution for refusing to avail himself of the protection of the country that the person left, or outside of which the person remained, by reason of fear of persecution. |
[2] On the judicial review application, the Motions Judge set aside the Refugee Division"s decision on the ground that the latter had failed to consider the applicability of subsection 2(3) of the Act , after having concluded that paragraph 2(2)(e) applied. In so deciding the Motions Judge certified the following question of general importance under subsection 83(1) for our consideration:
| In deciding whether or no an applicant has satisfied the requirements of the definition of Convention refugee in section 2 of the Immigration Act, is the CRDD under an obligation or duty to consider the requirements or paragraphs 2(2)(e) and 2(3) of the Immigration Act in sequence in deciding whether or not the requirements of paragraph 2(3) apply to the applicant, in the event that the CRDD has determined that there has been a change in country conditions? |
[3] The appellant maintains that the Motions Judge erred in concluding that the Tribunal is under "automatic" duty to consider subsection 2(3) of the Act in every case the Refugee Division concludes that there has been a change of country conditions under paragraph 2(2)(e). It is common ground that the jurisprudence emanating from the Trial Division of this Court is divided on this issue: see for example Brown v. M.C.I. (1995), 99 F.T.R. 269 and compare with Yong-Gueico et al v. M.C.I. (1997), 134 F.T.R. 135.
[4] In our respectful view, the Motions Judge was correct in holding that the Refugee Division is under an obligation to consider the applicability of subsection 2(3) of the Act once it is satisfied that refugee status cannot be claimed because of a change in country conditions under paragraph 2(2)(e). This conclusion does not detract from the fact that subsection 2(3) imposes the evidentiary burden on the refugee claimant to "establish that they are compelling reasons" for not returning to the country in which the past persecution arose. In support of our position we need go no further than the analysis offered by Hugessen J.A. (as he then was) in M.E.I. v. Obstoj , [1992] 2F.C. 739 (C.A.) at page 747 where he stated:
| The solution to the conundrum, as it seems to me, must lie in the fact the Parliament intended a consideration of the matters raised in subsection 2(2) (and necessarily of subsection 2(3) as well) to be included in the consideration of whether or not a person meets the requirements of paragraph (a) of the definition [of Convention Refugee]. Such an intention is consistent with the placing of subsections 2(2) and 2(3) in the definition section of the Act rather than, as logic would otherwise suggest, in or adjacent to section 69.2 dealing with cessation. |
| To put the matter another way, subsections 2(2) and 2(3), while at first blush they appear to deal only with the loss of a refugee status which has already been acquired, have in fact been extended by Parliament and incorporated into the definition by means of paragraph (b), so that their consideration forms part of the determination process itself. |
[5] The above passages confirms the understanding that as the Refugee Division is under an obligation to consider the matters set out in subsection 2(2) of the Act and since subsection 2(3) incorporates by reference paragraph 2(2)(e), the Refugee Division must consider the applicability of the former provision, whether or not the issue is expressly raised by the refugee claimant.
[6] In summary, in every case in which the Refugee Division concludes that a claimant has suffered past persecution, but this has been a change of country conditions under paragraph 2(2)(e), the Refugee Division is obligated under subsection 2(3) to consider whether the evidence presented establishes that there are "compelling reasons" as contemplated by that subsection. This obligation arises whether or not the claimant expressly invokes subsection 2(3). That being said the evidentiary burden remains on the claimant to adduce the evidence necessary to establish that he or she is entitled to the benefit of that subsection.
[7] The appeal should be dismissed with costs.
"J.T. Robertson"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| DOCKET: A-686-98 |
| STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
- and -
YAMBA ODETTE WA YAMBA ET AL
DATE OF HEARING: THURSDAY, APRIL 6, 2000
PLACE OF HEARING: TORONTO, ONTARIO
| REASONS FOR JUDGMENT BY: ROBERTSON J.A. |
Delivered at Toronto, Ontario
on Thursday, April 6, 2000
APPEARANCES: Ms. Susan Nucci
| For the Appellant |
Mr. Micheal Crane
| For the Respondents |
| SOLICITORS OF RECORD: Morris Rosenberg |
Deputy Attorney General of Canada
| For the Appellant |
MICHEAL CRANE
| Barrister & Solicitor |
| 166 Pearl Street, Suite 200 |
Toronto, Ontario
M5H 1L3
| For the Respondents |
FEDERAL COURT OF APPEAL
Date: 20000407
Docket: A-686-98
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Appellant
- and -
YAMBA ODETTE WA YAMBA ET AL
Respondents
REASONS FOR JUDGMENT