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Saavedra v. Canada (Minister of Citizenship and Immigration)

Publisher Canada: Federal Court
Author Federal Court of Canada, Trial Division
Publication Date 7 April 1999
Reference IMM-4742-98
Cite as Saavedra v. Canada (Minister of Citizenship and Immigration), Canada: Federal Court, 7 April 1999, available at: http://www.refworld.org/docid/43fece4d2.html [accessed 12 July 2014]
DisclaimerThis is not a UNHCR publication. UNHCR is not responsible for, nor does it necessarily endorse, its content. Any views expressed are solely those of the author or publisher and do not necessarily reflect those of UNHCR, the United Nations or its Member States.

SASKATOON, SASKATCHEWAN, Wednesday, this 7th day of April, 1999.

PRESENT: THE HONOURABLE MR. JUSTICE CAMPBELL

BETWEEN:

NELSON GUERRERO SAAVEDRA,

Applicant,

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

Respondent.

REASONS FOR ORDER AND ORDER

CAMPBELL J.

[1] The claimant in this case was found by the CRDD to be excluded from consideration for refugee status by virtue of Article 1(f)(a) of the Convention Relating to the Status of Refugees because, in 1985, he was complicit in crimes against humanity as a member of the Chilean military during the Pinochet regime.

[2] Fundamental to the finding of complicity, the CRDD made the following findings of fact:

1. "the panel determines that the claimant witnessed torture and that he was aware of other acts of torture by members of the armed forces"; and
2. "the claimant freely admitted that he was aware of other acts of torture by members of the armed forces. This admission is sufficient to conclude that the claimant had personal knowledge that the armed forces were committing crimes against humanity during the time that he was a member of the armed forces."

[3] I find that both these findings are unsupported by the evidence; the beating which the claimant witnessed was not an act of torture, and the equivocal evidence the claimant gave respecting his knowledge does not constitute a "free admission."

[4] In my opinion, these erroneous findings of fact are fundamental to the decision rendered by the CRDD, and, accordingly, I order that the decision be set aside and this matter be referred back to a differently constituted panel of the CRDD for redetermination.

[5] As the reviewable error in this case was caused by imprecise decision making, I find special reasons to award costs to the applicant, and I so order.

"Douglas Campbell"

Judge

FEDERAL COURT OF CANADA

TRIAL DIVISION

NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT NO.: IMM-4742-98

STYLE OF CAUSE: Nelson Guerrero Saavedra v. Minister of Citizenship and Immigration

PLACE OF HEARING: Saskatoon, Saskatchewan

DATE OF HEARING: April 7, 1999

REASONS FOR ORDER

OF THE COURT: The Honourable Mr. Justice Campbell

DATED: April 7, 1999

APPEARANCES

Gary Bainbridge for the Applicant

Glennys Bembridge

Dept. of Justice

7th floor, 229 - 4th Avenue South

Saskatoon, Saskatchewan for the Respondent

S7K 4K3

SOLICITORS OF RECORD

Woloshyn & Company

Barristers & Solicitors

200 Scotiabank Building

111 Second Avenue South

Saskatoon, Saskatchewan

S7K 1K6

for the Applicant

Morris Rosenberg

Deputy Attorney General of Canada for the Respondent

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