A-665-80
Eduardo Saraos (Applicant)
v.
Minister of Employment and Immigration Canada
and the Immigration Appeal Board (Respondents)
Court of Appeal, Pratte and Urie JJ. and MacKay
D.J.—Winnipeg, March 10; Ottawa, April 15,
1981.
Judicial review — Immigration — Application to review
and set aside a decision of the Immigration Appeal Board
determining that applicant is not a Convention refugee —
Board considered examination by applicant's counsel of appli
cant's brother-in-law before a senior immigration officer in
reaching its decision — Whether or not Board was entitled to
consider such evidence — Application dismissed — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Immigra
tion Act, 1976, S.C. 1976-77, c. 52, ss. 45, 70, 71.
Tapia v. Minister of Employment and Immigration
[1979] 2 F.C. 468, referred to. Leiva v. Minister of
Employment and Immigration, A-251-79, referred to.
Brannon v. Minister of Employment and Immigration,
A-161-80, referred to. Colima v. Minister of Employment
and Immigration, A-286-80, referred to. Brempong v.
Minister of Employment and Immigration [1981] 1 F.C.
211, referred to. Mensah v. Minister of Employment and
Immigration [1982] 1 F.C. 70, referred to. The Attorney
General of Canada v. Inuit Tapirisat of Canada [1980] 2
S.C.R. 735, referred to.
APPLICATION for judicial review.
COUNSEL:
D. Matas for applicant.
B. Hay for respondents.
SOLICITORS:
David Matas, Winnipeg, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This is a section 28 application to
review and set aside a decision of the Immigration
Appeal Board determining, pursuant to subsection
71(1) of the Immigration Act, 1976, S.C. 1976-77,
c. 52, that the applicant is not a Convention
refugee.
At the hearing, we indicated that there was, in
our view, only one of the many arguments raised
on behalf of the applicant that deserved consider
ation. That argument was that the decision under
attack was bad because it had been made on the
basis of evidence which the Board was not entitled
to take into consideration in making a decision
under subsection 71(1).
It is common ground that, during the examina
tion under oath of the applicant pursuant to sub
section 45(1), the senior immigration officer per
mitted the applicant's counsel to examine the
applicant's brother-in-law. As the evidence given
by that witness was included in the transcript of
the applicant's examination that had to be filed
with the Board under subsection 70(2), it became
part of the material before the Board. The reasons
given by the Board in support of their decision not
to allow the application for redetermination to
proceed show that the evidence of that witness was
considered by the Board.
Counsel for the applicant argued that the evi
dence given by the applicant's brother-in-law
should not have been considered by the Board and
that the irregularity committed by the Board
vitiated its decision. He invoked three judgments'
of this Court setting aside decisions made by the
Board under subsection 71(1) for the sole reason
that the Board, in reaching them, had given con
sideration to evidence other than the documents
listed in subsection 70(2).
Those cases were of course decided on their
individual facts and reflect the Court's interpreta
tion of subsections 70(2) and 71(1) on the basis of
those facts. However, because of the numerous
factual situations which can arise, I think that the
question considered in those cases should now be
more fully examined.
It is necessary, first, to have in mind the main
provisions of the Immigration Act, 1976 concern
ing the determination of refugee status which, as
' Tapia v. Minister of Employment and Immigration [1979]
2 F.C. 468. Leiva v. Minister of Employment and Immigration,
File No. A-251-79, July 24, 1979. [Reasons for judgment not
distributed—Ed.] Brannon v. Minister of Employment and
Immigration, File No. A-161-80, October 9, 1980. Those deci
sions were followed in: Colima v. Minister of Employment and
Immigration, File No. A-286-80, February 23, 1981.
everybody knows, may involve two stages: a deter
mination by the Minister and a redetermination by
the Immigration Appeal Board.
The main provisions relating to the determina
tion by the Minister are found in subsections
45(1),(2),(3),(4) and (5):
45. (1) Where, at any time during an inquiry, the person who
is the subject of the inquiry claims that he is a Convention
refugee, the inquiry shall be continued and, if it is determined
that, but for the person's claim that he is a Convention refugee,
a removal order or a departure notice would be made or issued
with respect to that person, the inquiry shall be adjourned and
that person shall be examined under oath by a senior immigra
tion officer respecting his claim.
(2) When a person who claims that he is a Convention
refugee is examined under oath pursuant to subsection (1), his
claim, together with a transcript of the examination with
respect thereto, shall be referred to the Minister for
determination.
(3) A copy of the transcript of an examination under oath
referred to in subsection (1) shall be forwarded to the person
who claims that he is a Convention refugee.
(4) Where a person's claim is referred to the Minister
pursuant to subsection (2), the Minister shall refer the claim
and the transcript of the examination under oath with respect
thereto to the Refugee Status Advisory Committee established
pursuant to section 48 for consideration and, after having
obtained the advice of that Committee, shall determine whether
or not the person is a Convention refugee.
(5) When the Minister makes a determination with respect
to a person's claim that he is a Convention refugee, the
Minister shall thereupon in writing inform the senior immigra
tion officer who conducted the examination under oath respect
ing the claim and the person who claimed to be a Convention
refugee of his determination.
If the Minister determines that a person is not a
refugee, that person may then apply to the Immi
gration Appeal Board for a redetermination of his
claim. The proceedings before the Board involve
two steps: the Board must first consider the
application and determine whether it should be
summarily dismissed. If the claim is not rejected at
that first step, the Board must then engage in the
second step of the proceedings by holding a hear
ing and determining the claim on the basis of the
evidence adduced at that hearing. The statutory
provisions governing those proceedings before the
Board are found in sections 70 and 71:
70. (1) A person who claims to be a Convention refugee and
has been informed in writing by the Minister pursuant to
subsection 45(5) that he is not a Convention refugee may,
within such period of time as is prescribed, make an application
to the Board for a redetermination of his claim that he is a
Convention refugee.
(2) Where an application is made to the Board pursuant to
subsection (1), the application shall be accompanied by a copy
of the transcript of the examination under oath referred to in
subsection 45(1) and shall contain or be accompanied by a
declaration of the applicant under oath setting out
(a) the nature of the basis of the application;
(b) a statement in reasonable detail of the facts on which the
application is based;
(c) a summary in reasonable detail of the information and
evidence intended to be offered at the hearing; and
(d) such other representations as the applicant deems rele
vant to the application.
71. (1) Where the Board receives an application referred to
in subsection 70(2), it shall forthwith consider the application
and if, on the basis of such consideration, it is of the opinion
that there are reasonable grounds to believe that a claim could,
upon the hearing of the application, be established, it shall
allow the application to proceed, and in any other case it shall
refuse to allow the application to proceed and shall thereupon
determine that the person is not a Convention refugee.
(2) Where pursuant to subsection (1) the Board allows an
application to proceed, it shall notify the Minister of the time
and place where the application is to be heard and afford the
Minister a reasonable opportunity to be heard.
(3) Where the Board has made its determination as to
whether or not a person is a Convention refugee, it shall, in
writing, inform the Minister and the applicant of its decision.
(4) The Board may, and at the request of the applicant or the
Minister shall, give reasons for its determination.
A careful reading of all those provisions suggests
to me the following observations:
1. The examination under oath made pursuant
to subsection 45 (1) is merely an examination of
the person claiming to be a refugee. It is not an
inquiry on the validity of the claim. The senior
immigration officer conducting the examination
acts irregularly, therefore, if he does more than
examine the claimant. For example, he cannot
examine a person other than the claimant; neither
can he produce documents in order to refute the
claimant's assertions.
2. The proceedings regulated by section 45 are
purely administrative, 2 they are neither judicial
nor quasi-judicial. Moreover, the Minister may
consider and base his decision on any evidence or
2 Brempong v. Minister of Employment and Immigration
[1981] 1 F.C. 211.
material, obtained from any source, without
having to give a chance to the claimant to respond
to that evidence. 3 It follows that, if the examina
tion under oath has been irregularly conducted so
that the transcript contains evidence other than
that elicited from the claimant, that irregularity
does not vitiate the Minister's determination.
3. When a person comes to the Board for a
redetermination of his claim, the sole jurisdiction
of the Board is to determine, pursuant to section
71, whetherNhe applicant is a Convention refugee.
The Board does not have the authority to rule on
the regularity of the proceedings that led to the
Minister's determination and cannot annul that
determination otherwise than by making its own
determination.
4. While the proceedings leading to the Minis
ter's decision are purely administrative, the pro
ceedings before the Board, by contrast, are judi
cial. This is true of the two steps in those
proceedings. However, the special character of the
decision that must be made at the first step pursu
ant to subsection 71(1) must be stressed. That
decision is made without a hearing at a time when
the applicant has not yet an adversary who opposes
his claim and when, in the normal course, there is
nothing before the Board except the application
for redetermination and the other documents filed
by the applicant pursuant to subsection 70(2). The
function of the Board at that stage is not to assess
and weigh contradictory evidence adduced by par
ties having divergent interests; it is merely to
consider the documentary evidence filed by the
applicant in support of his claim pursuant to sub
section 70(2) and form an opinion on the chances
of success of the application.
3 Mensah v. Minister of Employment and Immigration
[1982] 1 F.C. 70. When section 45 is read carefully, it becomes
obvious, in my view, that Parliament did not intend that the
Minister be obliged, before dismissing a claim, to inform the
applicant of the grounds on which he proposes to act. This is
not to say that the Minister is not expected to act fairly.
However, what are the requirements of "fairness" in any given
case is a matter of statutory interpretation (see: The Attorney
General of Canada v. Inuit Tapirisat of Canada [1980] 2
S.C.R. 735).
I now come back to the problem to be resolved:
must a decision of the Board dismissing a claim
summarily pursuant to subsection 71(1) be set
aside if it was not made solely on the basis of the
documents mentioned in subsection 70(2)? This
question does not admit of a simple answer. Dis
tinctions must be made:
1. The fact that the Board has considered evi
dence other than the documents mentioned in
subsection 70(2) certainly does not affect the
validity of the Board's decision if the evidence in
question is in no way prejudicial to the appli
cant. To set aside a decision of the Board on
such a ground would be a futile exercise.
2. The validity of the Board's decision is not
affected either, in my view, even if the evidence
is prejudicial to the applicant, when the appli
cant himself has either asked or agreed that the
Board take that evidence into consideration. 4 In
those circumstances, an applicant cannot com
plain that the Board acted on his request or
consent.
3. The Board's decision should be set aside,
however, if the evidence is prejudicial to the
applicant and was considered by the Board with
out his consent.
In the present case, I have no doubt that the
irregularity committed by the Board does not viti
ate its decision. The applicant blames the Board
for having taken into consideration the evidence
given by his brother-in-law before the senior immi
gration officer on the occasion of the applicant's
examination under oath. However, if that witness
was examined at that time, it was by the appli
cant's counsel and at his express request. More
over, it is the applicant who, with the assistance of
counsel, filed with the Board, without any reserve
or objection, the evidence that he now says should
not have been considered. This is clearly a case, in
my view, where the applicant has consented or
must be deemed to have consented to the introduc
tion into the record of the evidence in question.
For these reasons, I would dismiss the
application.
* * *
4 Whether or not an applicant has in fact asked or agreed
that the Board take the evidence into consideration is a ques
tion of fact to be determined by the Court in each case.
URIE J.: I agree.
* * *
The following are the reasons for judgment
rendered in English by
MACKAY D.J.: I have read the reasons for
judgment of my brother Pratte, and I agree with
his reasons, conclusions and proposed disposition
of this section 28 application.
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.