A-579-83
Daljit Singh (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Heald, Mahoney JJ. and
Lalande D.J.—Toronto, October 28; Ottawa,
December 15, 1983.
Immigration — Practice — Application to review and set
aside Immigration Appeal Board's decision refusing to allow
application for redetermination of refugee status to proceed
Senior immigration officer adversely commenting upon appli
cant's credibility at examination under oath — Applicant
merely informed of right to representation by counsel at
examination — S. 45(6) giving right to representation by
barrister or solicitor or other counsel — Application allowed
— Comments concerning applicant's credibility constituting
irregularity so fundamentally erroneous as to nullify Minis
ter's decision and examination under oath leading up to deter
mination — Comments prejudicial in that made by official
acting in non-adversarial capacity where function to gather
information — Non-compliance with s. 45(6) constituting
irregularity but not sufficient to nullify Minister's decision
since representation satisfactory and not resulting in prejudice
— Immigration Act, 1976, S.C. 1976-77, c. 51, ss. 45(1),(6),
70(2), 71(1).
Judicial review — Application to review — Immigration —
Application to review and set aside Immigration Appeal
Board's decision not to allow application for redetermination
of refugee status to proceed — Senior immigration officer
adversely commenting upon applicant's credibility at exami
nation under oath — Applicant not informed of right to
representation at examination by barrister or solicitor or other
counsel pursuant to s. 45(6) Immigration Act, 1976 but merely
informed of right to counsel — Application allowed — Rede-
termination procedure screening procedure made without
hearing with no one adverse in interest appearing— Improper
and damaging credibility comments raising potential for
prejudice and so fundamentally erroneous as to nullify Minis
ter's determination and examination under oath — Non-com
pliance with s. 45(6) not sufficient to nullify Minister's deter
mination since representation satisfactory and not prejudicing
applicant — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, s. 28 — Immigration Act, 1976, S.C. 1976-77, c. 52, ss.
45(1),(6), 70(2), 71(1).
An application was brought to review and set aside the
Immigration Appeal Board's decision refusing to allow an
application for redetermination of refugee status to proceed and
determining that the applicant was not a Convention refugee. A
senior immigration officer questioned the applicant about the
information contained in the basic data form and made nega
tive comments about the applicant's credibility. The applicant
was merely told that subsection 45(6) gave him the right to be
represented by counsel at the examination. Subsection 45(6)
provides that every person who is to be examined under oath
shall be informed that he has the right to obtain the services of
a barrister or solicitor or other counsel and to be represented by
any such counsel at his examination. The issues are whether the
senior immigration officer acted irregularly, and if so, whether
such irregularities, since they form part of the purely adminis
trative proceedings regulated by section 45, are sufficient to
vitiate the judicial proceedings prescribed by subsection 71(1),
namely the application for redetermination of Convention-
refugee status.
Held (Mahoney J. dissenting), the application should be
allowed.
Per Heald J. (Lalande D.J. concurring): The examination
under oath is not a trial but serves to gather as much informa
tion as possible concerning the claim to being a Convention
refugee. It was not open to the senior immigration officer to
cross-examine the applicant thereby impeaching his statements.
The scheme of the Act contemplates that the examination
should give the applicant every opportunity to provide complete
details of his claim. The senior immigration officer miscon
ceived her function and acted irregularly.
Applying the reasoning in Singh v. Minister of Employment
and Immigration (1983), 50 N.R. 385 (F.C.A.), the question
becomes whether the irregularities were so fundamentally
erroneous as to render nugatory the Minister's determination
and the examination under oath. The redetermination proce
dure under subsection 71(1) is a screening procedure, made
without a hearing at a time when the applicant has no one
adverse in interest to his claim. The Board is required to
consider the documentary evidence authorized by subsection
70(2) and form an opinion on the chances of success of the
application if it is allowed to proceed to a hearing. The Board
hears no viva voce evidence and has no opportunity from
personal observation of the applicant to make any credibility
judgments. In Gill v. Minister of Employment and Immigra
tion, the Board's judgment was set aside because the applicant
may have been prejudiced by unfair representation by his
counsel at the examination. Here the comments of the senior
immigration officer were capable of more serious prejudice
because they were the comments of a departmental official
acting in a non-adversarial capacity whose function was to
gather information. When she shed her objectivity and assumed
an adversarial role, she prejudiced the applicant in such a
fundamental way as to nullify the Minister's determination and
the examination under oath. It could not be concluded that the
Board had made its judgment unimpaired by any unconscious
influence which the adverse credibility findings of the senior
immigration officer may have had upon it.
The provisions of subsection 45(6) were not complied with.
The statement that the applicant had a right to counsel was
incomplete and incorrect. The subsection refers to "a barrister
or solicitor or other counsel". Normally senior immigration
officers read the subsection in its entirety or paraphrase the
entire subsection. By doing neither, the subsection was not
complied with. The failure to observe the mandatory require
ments of the subsection cannot be cured by an applicant
appearing with a counsel of his choice other than a barrister or
solicitor. The non-compliance with subsection 45(6) would not,
however, have been sufficient alone to vitiate the redetermina-
tion proceedings since the representation by the immigration
consultant was satisfactory and did not result in serious preju
dice to the applicant. Whether the non-compliance with subsec
tion 45(6) is so "fundamentally erroneous" as to nullify the
Minister's determination is a question of fact to be decided in
each case.
Per Mahoney J. (dissenting): The authority of Gill v. Minis
ter of Employment & Immigration ought to be restricted to
very similar factual situations. The irregularity there was
unusual. It lay in the behaviour of the applicant's own lawyer.
The Court gave no reasons. The irregularity here did not
deprive the applicant of the right or opportunity to put his
evidence before the Minister. In Saraos v. Minister of Employ
ment and Immigration Canada et al. it was said that if the
examination 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. Here the transcript does not contain extraneous
evidence, but gratuitous, prejudicial comments by the senior
immigration officer which the Board is as capable of recogniz
ing and disregarding as is the Court. The material that the
applicant put before the Board did not provide a basis upon
which the Board could responsibly have formed the opinion
that there were reasonable grounds to believe that, if allowed to
proceed to a hearing, the claim could be established. Since the
Minister's decision was not vitiated, the Board's redetermina-
tion was not vitiated.
CASES JUDICIALLY CONSIDERED
APPLIED:
Saraos v. Minister of Employment and Immigration
Canada et al., [1982] 1 F.C. 304 (C.A.); Lugano et al. v.
Minister of Manpower and Immigration, [1976] 2 F.C.
438 (C.A.); Singh v. Minister of Employment and Immi
gration (1983), 50 N.R. 385; 3 D.L.R. (4th) 452
(F.C.A.); Gill v. Minister of Employment and Immigra
tion, judgment dated January 21, 1983, Federal Court—
Appeal Division, A-526-82, not yet reported.
REFERRED TO:
Kwiatkowsky v. Minister of Employment and Immigra
tion, [1982] 2 S.C.R. 856; Quinones v. Minister of
Employment and Immigration, [1983] 2 F.C. 81 (C.A.).
APPEARANCE:
Daljit Singh on his own behalf.
COUNSEL:
B. Evernden for respondent.
APPLICANT ON HIS OWN BEHALF:
Daljit Singh, Toronto.
SOLICITOR:
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside the decision of the Immigra
tion Appeal Board refusing to allow the within
applicant's application for redetermination of his
refugee status to proceed and determining that he
is not a Convention refugee.
At the outset of the examination under oath of
the applicant by a senior immigration officer pur
suant to subsection 45 (1) of the Immigration Act,
1976 [S.C. 1976-77, c. 52], the senior immigration
officer made the following remarks to the appli
cant (Case, page 10):
Mr. Singh, this Examination is not a trial or an inquiry. We are
here to gather as much information as possible concerning your
claim to being a convention refugee ....
Then, the senior immigration officer, after the
applicant had sworn to the truth of his answers to
the questions contained in the basic data form, had
that form marked as Exhibit #1 to the examina
tion. Thereafter she allowed the applicant's coun
sel to question the applicant to some length con
cerning the details of his claim to
Convention-refugee status. Near the conclusion of
the examination by counsel for the applicant, the
following questions and answers appear (Case,
page 13):
Q. What relatives do you have in Canada?
A. Sister, brother-in-law, nobody else.
Q. Where are your parents?
A. Mother is here.
At this juncture the senior immigration officer
interrupted the examination by counsel and the
following exchange took place between the senior
immigration officer and the applicant (Case, pages
13 and 14):
SENIOR IMMIGRATION OFFICER: I have a question. Why
didn't you list your sister as a relative on your basic data
form.
A. I was only told when my brother-in-law, it means my
sister.
SENIOR IMMIGRATION OFFICER: It says, 'Do you have any
relatives in Canada'. It doesn't say to list your brother-in-
law but don't list your sister.
A. It was a misunderstanding.
SENIOR IMMIGRATION OFFICER: I sincerely hope you
haven't, and I sincerely hope she doesn't find out. You
had better make a correction on question 28, and at this
time I will give you this basic data form and ask you to
look over and see whether or not you made any other
mistakes.
(Person Concerned examines form)
Any other corrections on this basic data form?
A. No.
After three more questions by counsel for the
applicant, the senior immigration officer continued
her examination of the applicant as follows (Case,
pages 14, 15 and 16):
SENIOR IMMIGRATION OFFICER: I have a few questions.
SENIOR IMMIGRATION OFFICER EXAMINES DALJIT SINGH
Q. You said that you were farming in India, is that correct?
A. Yes.
Q. Did you own this farm?
A. Yes.
Q. What happened to this farm?
A. I have given it on rent.
Q. How long have you rented it for?
A. Two years.
Q. Why two years?
A. I have given it two years—this time, and if necessary, I
will have to renew it for another two years.
Q. How much rent do you get from it?
A. Eighty rupees kanal.
Q. What is `kanal'?
A. Eight kanals make an acre.
Q. How many kanals do you have?
A. I have five acres.
Q. This eighty rupees, for how long is that—per month, per
week?
A. For one year.
Q. How much is that in Canadian money, do you know?
A. I think about ten.
COUNSEL: No, madam, it is seven dollars and some cents.
SENIOR IMMIGRATION OFFICER: You rent forty acres of
your land for seven dollars a year? So, how much money
are you getting from them?
COUNSEL: Three-hundred-thousand, two-hundred rupees
[sic].
SENIOR IMMIGRATION OFFICER: Is that money coming to
you in Canada?
A. No.
Q. Who is it being sent to?
A. For one year's rent, I have brought it with me in advance,
and the second year's rent, I will write him to give it to
some of my relatives.
Q. So, you have other relatives in India?
A. My maternal uncle.
Q. Any other relatives?
A. Only I have got uncle-sons, but not blood relatives.
Q. In other words, question 29 is not correct either?
A. Because I haven't got any of my own relatives, my blood
relatives.
Q. Your uncle is a relative, is he not?
A. I thought this question is, if I have got some of my own
relatives there.
Q. You don't consider an uncle a relative?
A. I consider it.
Q. Mr. Zuberi, would you like to give advice to your client?
(Counsel discusses with persons concerned)
A. That is my mistake in understanding. I can put my uncle
also as a relative.
Q. The credibility of the answers is getting lower and lower.
What other questions have you sort of answered but not
really answered?
A. Others I think I am correct.
COUNSEL: I can only say that probably he misunderstood
`relative'. He thinks relative is only like the father and
mother, or real sister, which unfortunately he did not list
here too. Do you want the cousin's name here, too, or
only the uncle's?
SENIOR IMMIGRATION OFFICER: These cousins, are they the
sons and daughters of this uncle?
A. Yes.
SENIOR IMMIGRATION OFFICER: Then, could you just simply
put down cousins?
(Person Concerned complies)
Q. You said that you had no other relatives there, that is in
India. Does that mean that all your close relatives,
mother, sister, and other brothers and sisters you might
have in Canada.
A. I have one sister only.
Q. She is here in Canada with your mother?
A. Yes.
Q. Did you ever make an application to come to Canada as a
permanent resident?
A. No.
Q. Did your sister ever make an application on your behalf
for Canada?
A. No.
Q. You said that your mother is here in Canada, where is
your father?
A. He is dead.
Q. Is there anything else that you wish to ask, counsel?
COUNSEL: No, madam.
The senior immigration officer then heard short
submissions from applicant's counsel, advised the
applicant of the procedure to be adopted with
respect to the transcript of the examination and
concluded by advising the applicant of his right of
appeal to the Immigration Appeal Board. Thereaf
ter, the following exchange took place between the
applicant and the senior immigration officer
(Case, page 17):
SENIOR IMMIGRATION OFFICER: ... Is there anything else
you wish to add?
PERSON CONCERNED: No—I want to say about a work
permit. I asked for the date, and I have been given six
month appointment from now.
SENIOR IMMIGRATION OFFICER: Sir, I am not concerned
about that. That is a matter you will have to take up with
the management of this centre. I assume that the main
and most important factor in your mind is the fact that
you fear returning to India, and that you are not claiming
refugee status in Canada in order to work in Canada. If
that is the case, then the credibility of your refugee claim
is lowered.
Is that the case?
PERSON CONCERNED: No.
SENIOR IMMIGRATION OFFICER: Then, that is what I have to
do. I have to hear your claim concerning being a conven
tion refugee.
Do you have anything more to say concerning your claim?
PERSON CONCERNED: No.
SENIOR IMMIGRATION OFFICER: Fine. This Examination is
completed.
The scheme of the Immigration Act, 1976 with
reference to the determination of refugee status is
well known and has been dealt with in many
decisions of this Court. The procedure relating to
determination of refugee status by the Minister is
contained in sections 45 to 48 inclusive of the
Immigration Act, 1976. The procedure dealing
with applications to the Immigration Appeal
Board for redetermination of claims to refugee
status is set out in sections 70 and 71 of the
Immigration Act, 1976. In the case of Saraos v.
Minister of Employment and Immigration
Canada et al.,' Pratte J. speaking for the Court,
after reviewing the provisions of section 45 and
sections 70 and 71 of the Immigration Act, 1976
stated:
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 claim
ant. 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, (Brempong v. Minister of Employment and
Immigration [1981] 1 F.C. 211) they are neither judicial nor
quasi-judicial. Moreover, the Minister may consider and base
his decision on any evidence or material, obtained from any
source, without having to give a chance to the claimant to
respond to that evidence. [Footnote omitted.] It follows that, if
the examination 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 Minis
ter'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, whether the 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 determi
nation and cannot annul that determination otherwise than by
making its own determination.
4. While the proceedings leading to the Ministers' decision
are purely administrative, the proceedings before the Board, by
contrast, are judicial. 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 pursuant 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 parties
' [1982] 1 F.C. 304 (C.A.), at pp. 307 and 308.
having divergent interests; it is merely to consider the documen
tary evidence filed by the applicant in support of his claim
pursuant to subsection 70(2) and form an opinion on the
chances of success of the application.
It is my opinion that the observations of Mr.
Justice Pratte as quoted supra have relevance to
the factual situation in this case. It seems evident
from the portions of the transcript quoted herein
that this senior immigration officer used the infor
mation contained in the basic data form completed
by the applicant as the basis for a strenuous attack
on the applicant's credibility. 2 I think the senior
immigration officer stated the object of the exami
nation correctly at the commencement thereof
when she observed at page 10 of the Case that the
examination was not a trial or an inquiry but that:
"We are here to gather as much information as
possible concerning your claim to being a conven
tion refugee." Subsequently, however, her conduct
of the examination was such, in my view, as to
depart significantly from this avowed objective. I
do not think it was open to the senior immigration
officer to cross-examine the applicant thereby
having the effect of impeaching his statements.
The scheme of the Act clearly contemplates that
the examination under oath is intended to afford
the applicant every opportunity to provide full and
complete details of his refugee claim. In the
instant case, the senior immigration officer mis
conceived her function and her duties as envisaged
by the statute, and in so doing, she acted irregular
ly, in my view. Many of the questions asked by her
had no relevance whatsoever to the applicant's
refugee claim. The sole purpose of other questions
seems to have been to question and impeach the
applicant's credibility.
That however, does not end the matter. Can it
be said that where an examination under oath has
been irregularly conducted, such irregularity, since
it forms part of the purely administrative proceed
ings regulated by section 45, is capable of being
considered sufficient to vitiate the judicial pro
ceedings prescribed by subsection 71(1) of the Act,
namely, the application for redetermination to the
Immigration Appeal Board. As pointed out by
Pratte J. in Saraos (supra), the redetermination
2 See, for example, inter alia, her comment on page 15 of the
Case to the effect that: "The credibility of the answers is
getting lower and lower."
procedure under subsection 71(1) has a special
character. It has been characterized as a screening
procedure. It is made without a hearing at a time
when the applicant has no one adverse in interest
to his claim appearing in the matter. The Board is
required to consider the documentary evidence
authorized by subsection 70(2) and form an opin
ion on the chances of success of the application if
it is allowed to proceed to a hearing. At this stage,
the Board hears no viva voce evidence and has no
opportunity from personal observation of the appli
cant, to make any credibility judgments. This pre
liminary determination is made solely on the basis
of its assessment of the subsection 70(2) material.
The Board must determine, on the evidence before
it, whether there exist reasonable grounds to
believe that it is more likely than not that, on a
balance of probabilities, the applicant can prove
his status as a refugee at a full hearing of the
Board. 3 At a full hearing of the Board, the adver
sarial process is operative thus enabling the Board
to make its own credibility judgments based on its
observations of the applicant's demeanour and the
way in which he answers the questions put to him.
In the case at bar, the Board has refused a full
hearing based on material containing improper
and damaging credibility comments made by the
senior immigration officer. Such forceful adverse
findings on the credibility of the applicant are
capable, in my view, of influencing, perhaps
subtly, the Board's conclusion after reviewing the
material submitted pursuant to subsection 70(2). I
see in the presence of these comments on the
record before the Board, considerable potential for
prejudice. I am unable to conclude that the Board
made its own judgment of the applicant's credibili
ty, unimpaired by any unconscious influence which
the adverse credibility findings of the senior immi
gration officer may have had upon it.
3 This is the test formulated by this Court in Lugano et al. v.
Minister of Manpower and Immigration, [1976] 2 F.C. 438
(C.A.), at page 443 per Urie J. That test has been approved by
the Supreme Court of Canada in the case of Kwiatkowsky v.
Minister of Employment and Immigration, [1982] 2 S.C.R.
856.
I turn now to another irregularity which I per
ceive in the conduct of this examination by the
senior immigration officer. Subsection 45(6) of the
Immigration Act, 1976 reads as follows:
45....
(6) Every person with respect to whom an examination under
oath is to be held pursuant to subsection (1) shall be informed
that he has the right to obtain the services of a barrister or
solicitor or other counsel and to be represented by any such
counsel at his examination and shall be given a reasonable
opportunity, if he so desires and at his own expense, to obtain
such counsel.
At page 9 of the Case, the senior immigration
officer made the following remarks to the appli
cant as the examination commenced:
SENIOR IMMIGRATION OFFICER: Mr. Singh, the Immigra
tion Act in section 45(6) gives you the right to be
represented by counsel at this Examination. I note that
you are accompanied at this Examination by Mr. J.
Zuberi who is known to me as a consultant in Immigra
tion matters. Have you arranged for him to act as your
counsel at this Examination?
PERSON CONCERNED: Yes.
SENIOR IMMIGRATION OFFICER: Counsel, would you identi
fy yourself for the record, please?
COUNSEL: Yes, Madam. My name is J.U. Zuberi. I am an
Immigration consultant. My address is 100 Mornelle
Court, Suite 2015, Scarborough. My telephone number is
281-4402. Thank you.
SENIOR IMMIGRATION OFFICER: I assume that you are
ready to go ahead with the Examination today, counsel?
COUNSEL: Yes, madam.
Thereafter the substantive portion of the examina
tion began. In my view, the provisions of subsec
tion 45(6) of the Act were not complied with in the
passage quoted supra, nor elsewhere in the tran
script. The statement by the senior immigration
officer that "section 45(6) gives you the right to be
represented by counsel at this Examination" is an
incomplete and therefore an incorrect explanation
of the subsection. The subsection refers to "a
barrister or solicitor or other counsel". Normally,
senior immigration officers read the subsection in
its entirety to the applicant or paraphrase the
entire subsection. This senior immigration officer
did neither and in the result, it is my view, that the
provisions of the subsection were not complied
with. The provisions of the subsection are disjunc-
tive and require that the applicant be informed of
his right to be represented by a barrister or a
solicitor or other counsel. I do not think that a
failure to observe the mandatory requirements of
the subsection can be cured by an applicant
appearing with a counsel of his choice other than a
barrister or a solicitor. It is a matter for specula
tion as to whether or not he would have proceeded
with a counsel other than a barrister or solicitor
had he been properly advised of his rights as
specified in subsection 45(6).
In summary, I have concluded for the reasons
stated supra, that this record discloses two
irregularities in the conduct of the examination
under oath by the senior immigration officer. The
effect, if any, of irregularities in the conduct of the
examination under oath, on the validity of the
redetermination proceedings under subsection
71(1) before the Board, has been extensively can
vassed by the Chief Justice in a recent decision of
another panel of this Court in the case of Singh v.
Minister of Employment and Immigration. 4 In
that case, the only irregularity advanced in support
of the application was that the applicant was
effectively denied his right to counsel during a
portion of his examination under oath before a
senior immigration officer. In discussing the
powers of the Board on a subsection 71(1) redeter-
mination, the Chief Justice said at pages 5 and 6
[page 388 N.R.; page 456 D.L.R.] of his reasons
for judgment:
The authority conferred on the board in dealing with an
application is thus very particular and very narrow. It does not
include authority to refer the matter back to the Minister or to
consider or take any action in respect of defects or irregularities
that may appear to have occurred in the proceedings leading up
to the Minister's determination. Only in a case where what
occurred at the examination was so fundamentally erroneous as
to be a basis for treating the Minister's determination as a
nullity so that the board's jurisdiction to entertain an applica
tion for redetermination could not be said to attach do I
conceive that it might be open to the board to deal with the
application otherwise than as directed by s-s. 71(1) and in such
a case the board's course, as I conceive it, would not be to
entertain the application but would be simply to quash or refuse
to entertain it on the ground that there had been no Minister's
determination.
Applying that view of the matter to the instant
case, the question to be answered here is whether
the irregularities detailed supra, since they were
irregularities occurring in the proceedings leading
(1983), 50 N.R. 385; 3 D.L.R. (4th) 452 (F.C.A.). The
reasons for judgment of the Chief Justice were concurred in by
Mahoney J. and Stone J. Stone J. also wrote concurring
reasons.
up to the Minister's determination, were so funda
mentally erroneous as to render nugatory the Min
ister's determination and the examination under
oath before the senior immigration officer. The
Singh case supra held that, in the particular cir
cumstances of that case, a non-compliance with
the provisions of subsection 45(6) of the Act, at
the examination under oath, was not, of itself,
sufficient to nullify the redetermination proceed
ings before the Board. I have concluded likewise,
in the circumstances of the case at bar, that the
non-compliance with subsection 45(6) should not
vitiate the redetermination proceedings. I say this
because, after perusing the transcript of the exami
nation, I am satisfied with the quality of the
representation by the immigration consultant.
Accordingly, the irregularity in this case was
merely of a technical nature and did not result in
serious prejudice to the applicant. There may well
be cases where the non-compliance with subsection
45(6) would be so "fundamentally erroneous" as
to require that the Minister's determination be
treated as a nullity. Whether a fundamental error
of such magnitude is present in a particular case
must be left to the particular tribunal concerned
with the facts of that case. However, it is my view
that the initial irregularity discussed supra in this
case, that is, the cross-examination of the appli
cant with resultant adverse credibility findings by
the senior immigration officer, is of a far more
serious nature and stands on a different footing. I
consider this irregularity to be at least as serious as
that considered by the Court in the case of Gill v.
Minister of Employment and Immigration. 5 In
that case, the judgment of the Court reads as
follows:
The Court being of the opinion that the applicant may have
been seriously prejudiced before the Immigration Appeal Board
by material in the record, (appearing on page 17 of the Case)
which indicates that the applicant was not fairly represented by
his counsel at his examination under oath before the senior
immigration officer and that the applicant's claim for Conven-
tion-refugee status should be dealt with anew.
It is ordered that the judgment of the Immigration Appeal
Board pronounced on or about the 7th day of June, 1982 be
and it is set aside.
If a lack of fair representation by counsel at the
applicant's examination under oath suggests that
5 Judgment dated January 21, 1983, Federal Court—Appeal
Division, A-526-82, not yet reported.
"... the applicant may have been seriously prejud
iced" so as to require that the applicant's refugee
claim should be dealt with anew, then I would
think that the conduct of the examination under
oath in the case at bar, as summarized herein, is
just as serious, if not more serious than that in the
Gill case supra. In the Gill case, the comments of
the applicant's solicitor could be said to indicate a
lack of confidence in the validity of the applicant's
claim. In the case at bar, the comments of the
senior immigration officer are to the same effect
and, in my view, are capable of a more serious
prejudice because they are the comments of an
official of the Immigration Department acting in a
non-adversarial capacity whose mandate was
simply one of an information gathering nature.
When she shed her objectivity and assumed an
adversarial approach to the applicant, she prejud
iced the applicant in such a serious and fundamen
tal way as to nullify the Minister's determination
and the examination under oath leading up to that
determination.
For these reasons I think the Board erred in not
refusing to entertain the application on the ground
that there had been no valid Minister's
determination.
Accordingly, I would set aside the judgment of
the Immigration Appeal Board.
LALANDE D.J.: I agree.
* * *
The following are the reasons for judgment
rendered in English by
MAHONEY J. (dissenting): I have had the
advantage of reading Mr. Justice Heald's reasons
for judgment herein. He has recited the pertinent
facts and I agree with his conclusion that, in
cross-examining the applicant in the manner she
did and in commenting on his credibility, the
senior immigration officer acted irregularly in con
ducting the examination under oath prescribed by
subsection 45(1) of the Immigration Act, 1976. I
also adopt the characterization of the refugee
determination and redetermination process in
Saraos v. Minister of Employment and Immigra-
tion Canada et al. 6 Accordingly, I agree that
irregularities occurring in the proceedings leading
up to the Minister's determination must have ren
dered that determination a nullity in order to
provide a basis upon which this Court may, under
section 28 of the Federal Court Act [R.S.C. 1970
(2nd Supp.), c. 10], set aside a decision of the
Immigration Appeal Board made pursuant to sub
section 71(1) of the Immigration Act, 1976. In the
absence of any irregularity in the proceedings
before the Board itself, a successful section 28
application must, of necessity, be founded on an
absence of jurisdiction on the part of the Board.
That, as I see it, can be so only if there was, de
jure or de facto, no determination upon which to
base an application for redetermination. Notwith
standing all these points of agreement, I am
unable to arrive at the same result as the majority
of the Court.
I am of the view that the authority of Gill v.
Minister of Employment and Immigration' ought
to be restricted to very similar factual situations.
The irregularity there was unusual. It lay in the
behaviour of the applicant's own lawyer. The
Court gave no reasons. I have difficulty equating
the nature of that irregularity with that of the
irregularity in issue here, which lies entirely in the
conduct of the senior immigration officer. It is
probably idle to speculate on the ratio of the Gill
decision in the absence of reasons; however,
assuming the principles of the earlier Saraos deci
sion to have been applied, perhaps the Court con
cluded that the applicant had not really been
examined in respect of his claim. That being the
only purpose of the examination, I can conceive of
no more fundamental irregularity. Here, there is
no allegation or basis for inference that the appli
cant did not tell his full story at his examination.
The irregularity here did not, somehow, deprive
the applicant of the right or opportunity to put his
evidence before the Minister. Rather, the
irregularity here resulted in the inclusion of
extraneous material in the record of the examina -
6 [1982] 1 F.C. 304 (C.A.), at pp. 307 ff.
7 Judgment dated January 21, 1983, Federal Court—Appeal
Division, A-526-82, not yet reported.
tion, namely: adverse findings as to the applicant's
credibility. It seems to me to be the sort of
irregularity referred to in Saraos, where it was
said [at page 308]:
It follows that, if the examination under oath has been irregu
larly conducted so that the transcript contains evidence other
than that elicited from the claimant, that irregularity does not
vitiate the Minister's determination.
It was also said [at page 309]:
... The Board's decision should be set aside, however, if the
evidence [considered by the Board] is prejudicial to the appli
cant and was considered by the Board without his consent.
That proposition, while obiter dicta in Saraos, was
the ratio in Quinones v. Minister of Employment
and Immigration. 8 Here, however, we are not
dealing with evidence at all. We are dealing with
gratuitous, prejudicial comments by the senior
immigration officer which, with respect, the Immi
gration Appeal Board is quite as capable as we to
recognize and disregard as such and, in the
absence of reasons, there is no basis upon which to
infer that it may have influenced the Board's
decision. On the contrary, credibility entirely aside
and accepting the applicant's story as true without
any reservation whatsoever, the material he put
before the Board in support of his application
simply did not provide a basis upon which the
Board could responsibly have formed the opinion
that there were reasonable grounds to believe that,
if allowed to proceed to a hearing, the claim could
be established. We are also dealing with material
which the applicant himself put before the Board,
as subsection 70(2) required if he chose to apply
for redetermination, and to which he took no
exception, as paragraph 70(2)(d) invited if he
considered the comments relevant.
The adverse comments by the senior immigra
tion officer ought not to have been in the tran
script put before the Minister but, on authority of
Saraos, that did not vitiate the Minister's decision.
To say that the Minister's decision is not vitiated
by an irregularity in the conduct of the examina
tion under oath is to say it is not a nullity. It is not
8 [1983] 2 F.C. 81 (C.A.).
to say that it is not subject to be quashed in an
appropriate proceeding. To borrow the terminolo
gy of another area of the law, the Minister's
determination may have been voidable but it was
not void. Since I do not agree that the Minister's
determination was vitiated by the irregularities in
the conduct of the examination under oath, I can
not agree that the Board's redetermination was
thereby vitiated.
I agree that this transcript does not disclose
compliance with subsection 45(6) and that it is
desirable that transcripts do so. I express no opin
ion, however, as to whether the Court is entitled to
infer non-compliance from the record's silence
since that would not be an irregularity giving rise
to a remedy in this proceeding.
I would dismiss 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.