A-633-80
Francisco Humberto Gonzalez Galindo (Appli-
cant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Urie and Ryan JJ., Kelly D.J.—
Toronto, February 23, 1981.
Judicial review — Immigration — Application to review
and set aside decision of Immigration Appeal Board that
applicant's testimony as to his detention and torture was
exaggerated in view of his minimal involvement in politics —
Application allowed — The extent of applicant's political
involvement has no necessary relationship to the well-founded
fear of further detention and persecution that the physical and
emotional disabilities suffered by the applicant would lead
him to anticipate — Applicant entitled to respond to certain
information relied on by the Board and obtained in other
hearings — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10,
s. 28 — Immigration Act, 1976, S.C. 1976-77, c. 52, s. 71(2).
APPLICATION for judicial review.
COUNSEL:
Nancy Goodman for applicant.
R. Levine for respondent.
SOLICITORS:
Knazan, Jackman & Goodman, Toronto, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
URIE J.: We are all of the opinion that this
section 28 application must succeed.
A careful reading of the reasons for judgment of
the Immigration Appeal Board indicates that the
Board was of the opinion that testimony of the
applicant as to his detention and torture over a
period of two years, followed by shorter periods of
detention twice a year in subsequent years, was
exaggerated "taking into consideration the mini
mal involvement in politics before September
1973". In so concluding the Board appears to have
ignored the evidence of the independent medical
witnesses as to the nature of the physical and
emotional disabilities suffered by the applicant
which those witnesses found to be compatible with
the history of torture and detention related by the
applicant. In our view, this evidence indicates that
the extent of the political involvement of the appli
cant has no necessary relationship to the well-
founded fear of further detention, torture and
persecution that disabilities of the type suffered by
the applicant would lead him to anticipate. This
ground alone is sufficient to remit the matter for
reconsideration.
In this case, in addition, the Board relied on
certain information it had obtained in other hear
ings relating to Chile. This information was relied
on in a manner adverse to the applicant. The
information was not the sort of information of
which judicial notice could be taken in proceedings
before a court nor was it of the general character
well known to the Board and to the public referred
to in the Maslej case.' If the kind of information
used in this case, which appears to be of a type
which an applicant might well be in a position to
contest, is to be relied upon by the Board in a
hearing pursuant to subsection 71(2) of the Immi
gration Act, 1976, S.C. 1976-77, c. 52, natural
justice requires that the applicant be entitled to
respond to it just as he would to evidence adduced
at the hearing.
The application will, therefore, be allowed, the
order of the Immigration Appeal Board dated
September 8, 1980, will be set aside and the
matter will be referred back to the Board, prefer
ably to be heard, by a panel thereof differently
constituted, for disposition in a manner not incon
sistent with these reasons.
° [1977] 1 F.C. 194.
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