Talal Ali Said Al-Busaidy v. Minister of Employment and Immigration

REASONS FOR JUDGMENT

HEALD J.:-- We are all of the view that this appeal should succeed.

The applicant is a 26 year old Ugandan national of mixed blood, being a Muslim mainly of Arab extraction. The applicant's father, a restaurant owner in Uganda, was in the fall of 1988, sought by members of a faction of the Ugandan military (i. e. the National Resistance Army) (N.R.A.). A group of N.R.A. soldiers visited the family home on three occasions during this period in search of the applicant's father who was not at home at the time of any of these searches. In September of 1988 the father sent the applicant's mother and sister to live in Kenya where the sister was to be married.

In November of 1988, at the request of his father, the applicant drove an unidentified man late at night to the Kenyan border; neither the passenger's name, tribe, occupation, or connection with the applicant's father is known. After leaving this person at the border, the applicant was attacked and tortured by Ugandan soldiers with northern accents who demanded information from him concerning this man whom they characterized as a "traitor". The applicant's father learned of the applicant's detention and torture and arranged for his rescue by soldiers from another faction of the N.R.A.

Since the applicant and his father were unable to obtain police protection or sustained protection from any factions of the army, they made arrangements to leave Uganda. However, before either of them could leave the applicant's father was murdered on December 11th, 1988. That same night, the applicant's family home was looted and vandalized by soldiers.

After observing that several parts of the applicant's testimony were "difficult to understand" and that the applicant had "undergone some traumatic experience" (which was corroborated through the evidence of Canadian doctors) the Board made the following findings in respect of the credibility of the evidence given before them by the applicant:

"There was insufficient inconsistency in the testimony for us to discount it. We are obliged to accept it, even though we find it difficult to explain." (AB Vol. 2, P. 244)

The Board then proceeded to determine:

"… whether the persecution feared (and the threat of death by soldiers of the country is clearly persecution) is related to one of the grounds cited in the legislation." (AB Vol. 2 P. 245)

This statement is clearly a reference to the five grounds of persecution set out in subsection 2(1) of the Immigration Act, namely: race, religion, nationality, membership in a particular social group or political opinion. Thereafter the Board proceeded to find, on the evidence that no nexus had been shown with respect to any of the five grounds set out in subsection 2(1). With respect to the ground of "membership in a particular social group", the Board said (AB Vol. 2 P. 245):

"Counsel for the claimant suggested that the claimant's family association with his father could constitute sufficient ground. But there is no suggestion in the evidence that the son was targeted because of his father.

We must respectfully but strongly disagree with this conclusion. The uncontradicted evidence which was accepted by the Board establishes that the applicant's father moved his wife and daughter away from Uganda to live in Kenya. The applicant was detained, tortured, and threatened with death because he was taking an unidentified man to the Kenyan border under his father's instructions and at his request. His father was able to have him rescued. His father was in the process of arranging for both he and the applicant to leave Uganda when he, the father, was murdered. The family home was also looted and vandalized by soldiers. This is surely cogent evidence from which a Tribunal could conclude that the required nexus is present. It follows that the Board was wrong when it said that "there is no suggestion in the evidence that the son was targeted because of his father".

Accordingly the Board has committed reviewable error in not giving due effect to the applicant's uncontradicted evidence with respect to his membership in a particular social group , namely, his own immediate family. For these reasons, the appeal is allowed, the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated October 29th, 1990, and signed November 1st, 1990, is set aside, and the matter is referred back to that Board for a new hearing and determination by a differently constituted panel in a manner not inconsistent with these reasons.