A-521-89
Abdulhakim Ali Sheikh (Appellant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: SHEIKH v. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION) (C.A.)
Court of Appeal, Iacobucci C.J., MacGuigan and
Desjardins JJ.A.—Toronto, June 18; Ottawa, July
4, 1990.
Immigration — Refugee status — Immigration Act, ss. 46
and 46.01(6) credible basis test — First-level panel (adjudica-
tor and member of Refugee Division) to make own assessment
of credibility of evidence before it — Noor v. Canada (Minister
of Employment and Immigration), 09891 R.J.Q. 967 (S.C.)
(holding test met if any credible or trustworthy evidence
relative to claim), disapproved.
Barristers and solicitors — Designated counsel falling
asleep at refugee credible basis hearing — Applicant arguing
cause prejudiced — Relying on references in proceedings,
establishing existence, but not dimensions, of problem
Failing to adduce affidavit evidence subject to cross-examina
tion — Although such conduct inherently prejudicial, precise
factual foundation necessary before Court finding prejudice as
such judgment could found action in negligence or disciplinary
proceedings.
This was an application to review and set aside the decision
of an immigration adjudicator and a member of the Refugee
Determination Division (the first-level panel) that the applicant
had failed to establish a credible basis for his claim such that
the Refugee Division, in full hearing (the second-level panel)
might classify him as a Convention refugee. Immigration Act,
section 46 provides that the adjudicator and a member of the
Refugee Division shall determine whether the claimant has a
credible basis for the claim. Under subsection 46.01(6), if the
adjudicator or the member of the Refugee Division, after
consideration of the evidence adduced at the hearing, is of the
opinion that there is any credible evidence on which the
Refugee Division might determine the claimant to be a Con
vention refugee, the adjudicator or member shall determine
that the claimant has a credible basis for the claim.
The applicant, a Ugandan citizen, left Uganda when he
began to think that the army had seized and killed his father
and was trying to coerce him into joining the army by saying
that rebel forces had killed his father and that he should join
the army to get revenge. The panel accepted the applicant's
version of the facts, but found that the inferences that he drew
therefrom were mere conjecture, and not plausible.
The applicant also argued that he had been prejudicially
affected by his designated counsel falling asleep three times
during the hearing.
Held, the application should be dismissed.
The Federal Court has not yet determined the standard for a
first-level panel, although it is not the test mandated for a full
Refugee Division hearing. The first-level panel may assess and
weigh the oral and documentary evidence, but not in the
manner appropriate to a full Refugee Division hearing.
The Quebec Superior Court in Noor v. Canada (Minister of
Employment and Immigration) held that the credible basis test
referred to in sections 46 and 46.01 is met if there is "any"
credible evidence on which the Refugee Division "might" deter
mine that the claimant has a credible basis for the claim. This
was a mistaken view of subsection 46.01(6). By including the
words "credible or trustworthy", Parliament required the first-
level panel to make its own assessment of the credibility of the
evidence before it, not to guess at what judgment a second-level
tribunal would make on credibility. Had Parliament wished to
ensure that a matter proceed automatically to the second level
if there was any evidence on which the second-level tribunal
might determine the claimant to be a Convention refugee it
could have omitted the words "credible or trustworthy".
The concept of credible evidence is not the same as that of
the credibility of the applicant, but where the only evidence
before a tribunal is that of the applicant, a tribunal's perception
that he is not a credible witness effectively amounts to a finding
that there is no credible evidence on which the second-level
tribunal could allow his claim.
The first-level panel did not err in integrating the facts and
inferences, and in the result there was, in its opinion, no
credible or trustworthy evidence on the basis of which a
second-level panel could have come to a conclusion favourable
to the applicant.
Counsel's conduct is of concern to the Court, particularly
where counsel is designated. Although the fact that counsel had
been asleep during the hearing could be taken as inherently
prejudicial, the factual foundation had to be very precise, given
that such a finding could found an action in negligence or
disciplinary proceedings. The applicant did not adduce affidavit
evidence on the issue on which he could have been cross-exam
ined, but relied on four brief references in the proceedings,
which established the existence, but not the dimensions, of the
problem. The transcript revealed that the Adjudicator had been
alert and his prompt interventions may have reduced the scope
of the problem.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Immigration Act, R.S.C., 1985, c. 1-2, ss. 2 (as am. by
R.S.C., 1985 (4th supp.), c. 28, s. 1), 46 (as am. idem,
s. 14), 46.01 (as enacted idem), 82.1(1) (as enacted
idem, s. 19).
CASES JUDICIALLY CONSIDERED
NOT FOLLOWED:
Noor v. Canada (Minister of Employment and Immigra
tion), [1989] R.J.Q. 967 (S.C.).
CONSIDERED:
Lee v. Canada (Minister of Employment and Immigra
tion), F.C.A., A-401-89, Heald J.A., judgment dated
22/2/90, not yet reported; Sloley v. Canada (Minister of
Employment and Immigration), F.C.A., A-364-89, Heald
J.A., judgment dated 22/2/90, not yet reported; Strick-
land v. Washington, 466 U.S. 668 (1984); Javor v. U.S.,
724 F. 2d 831 (9th Cir., 1984).
REFERRED TO:
Noor v. Canada (Minister of Employment and Immigra
tion), [1990] R.J.Q. 668 (C.A.); R. v. Garofoli (1988),
41 C.C.C. (3d) 97; 64 C.R. (3d) 193; 27 O.A.C. 1 (Ont.
C.A.).
COUNSEL:
M. Pia Zambelli for appellant.
Donald MacIntosh for respondent.
SOLICITORS:
Jackman, Zambelli and Silcoff, Toronto, for
appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.A.: This section 28 application,
for which leave under subsection 82.1(1) of the
Immigration Act, R.S.C., 1985, c. 1-2, as amended
[by R.S.C., 1985 (4th Supp.), c. 28, s. 19], ("the
Act") was granted by a judge of this Court, seeks
to review and set aside an August 11, 1989 deci
sion of an immigration adjudicator and a member
of the Refugee Determination Division ("the
panel" or "the first-level panel"), which held that
the applicant had failed to establish a credible
basis for his claim such that the Refugee Division,
in full hearing ("the second-level panel"), might
classify him as a Convention refugee.
The relevant provisions of the Act [as am. by
R.S.C., 1985 (4th Supp.), c. 28, ss. 1, 14] are as
follows:
2. (1) ...
"Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for
reasons of race, religion, nationality, membership in a par
ticular social group or political opinion,
(i) is outside the country of the person's nationality and is
unable or, by reason of that fear, is unwilling to avail
himself of the protection of that country ....
• • •
46. (1) Where an inquiry is continued or a hearing is held
before an adjudicator and a member of the Refugee Division,
• • •
(c) if either the adjudicator or the member or both determine
that the claimant is so eligible, they shall determine whether
the claimant has a credible basis for the claim.
(2) The burden of proving that a claimant is eligible to have
the claim determined by the Refugee Division and that the
claimant has a credible basis for the claim rests on the
claimant.
. . .
46.01 . . .
(6) If the adjudicator or the member of the Refugee Divi
sion, after considering the evidence adduced at the inquiry or
hearing, including evidence regarding
(a) the record with respect to human rights of the country
that the claimant left, or outside of which the claimant
remains, by reason of fear of persecution, and
(b) the disposition under this Act or the regulations of claims
to be Convention refugees made by other persons who alleged
fear of persecution in that country,
is of the opinion that there is any credible or trustworthy
evidence on which the Refugee Division might determine the
claimant to be a Convention refugee, the adjudicator or
member shall determine that the claimant has a credible basis
for the claim.
The applicant is a citizen of Uganda. As both an
Arab and a Muslim, he is a member of minority
groups in that country. He allegedly lived in
Uganda from his birth in 1965 to 1979, fled in
1979 with his family to Kenya, where he remained
until his return to Uganda in 1984-1985, and went
back to live in Kenya from 1986 to 1989, from
where he came to Canada in 1989. He and his
family allegedly lived illegally in Kenya both
times.
One set of issues revolves around the determina
tion of a credible basis for his claim by the first-
level panel, another around the conduct of his
designated counsel.
There can be no doubt that a first-level panel
errs in law in applying the test mandated for a full
Refugee Division hearing rather than the lower
threshold provided for a level one hearing: Lee v.
Canada (Minister of Employment and Immigra
tion), no. A-401-89, decided by this Court Febru-
ary 22, 1990 [not yet reported]. But this Court has
not yet decided what must be the standard for a
first-level panel. Certainly the Court's decision in
Sloley v. Canada (Minister of Employment and
Immigration), no. A-364-89, also decided Febru-
ary 22, 1990 [not yet reported], cannot be taken to
mean that a first-level panel is forbidden to assess
and weigh the oral and documentary evidence, but
only that it must not do so in the manner appropri
ate to a full Refugee Division hearing. It would be
hard to imagine a tribunal with jurisdiction to
make findings of fact which would not have the
competence to assess and weigh the evidence pre
sented before it.
Much of the difficulty counsel have experienced
in interpreting subsections 46(1) and 46.01(6) of
the Act arises from the reasons for decision of
Greenberg J. of the Quebec Superior Court in
Noor v. Canada (Minister of Employment and
Immigration), [1989] R.J.Q. 967, reversed on
more general grounds by the Quebec Court of
Appeal without adverting to this particular issue:
[1990] R.J.Q. 668. On the jurisdiction of the
level-one tribunal, Greenberg J. wrote (at pages
978-979):
We agree that they should have acted as a "threshold
tribunal"; in French: "un tribunal d'acces" or "tribunal de
triage", whereas in fact they functioned and rule[d] as if they
were the tribunal at the second level pursuant to Sections 70,
71 and 71.1 of the Act. They, in fact, ruled on the merits of
Petitioner's claim for recognition of his status as a Convention
refugee.
This Court also finds that they misconstrued the meaning of
the concept of "credible basis"; in French: "un minimum de
fondement". That is a new concept in Canadian law and is not
to be confused or confounded with that of a "prima facie case"
or the well-known "Shephard Test" for committing a person to
trial at his preliminary inquiry or for ordering his extradition at
an extradition hearing (Etats-Unis d'Amerique c. Shephard,
[1977] 2 R.C.S. 1067).
That new test, credible basis, is met if the adjudicator or the
member is of the opinion that there is, in the words of subsec
tion 46.01(6) of the Act, "any" credible or trustworthy evi
dence on which the Refugee Division "might" (Note: not "will"
or "would" or "should" or "could", but "might") determine a
claimant to be a Convention refugee. If so, the adjudicator or
the member "shall" determine that the claimant has a credible
basis for the claim.
The requirement is not that a claimant necessarily be cred
ible, but that there be any credible or trustworthy evidence
relative to the elements of the definition of Convention refugee
which might lead to the conclusion that the claimant is a
Convention refugee.
. . .
Hence, the first hearing procedure, in our view, was intended
by Parliament to be a screening-out process for the most
obvious cases of abuse, to weed out those who are manifestly
and clearly "bogus" refugees. A good example of such bogus
cases was the large number of Turkish nationals who in 1987-
88 claimed Convention refugee status under the prior system,
where it was quite obvious that they were would-be immigrants
seeking to jump the line and mainly, if not solely, wishing to
improve their economic condition.
A claim can only be found to have "no credible basis" at the
first level if it lacks any evidenciary basis.
With respect, I believe this to be a mistaken view
of subsection 46.01(6). It would have been easy
enough for Parliament to omit the words "credible
or trustworthy" if it wished to ensure that a matter
proceeded automatically to the second level if
there was any evidence on which the second-level
tribunal might determine the claimant to be a
Convention refugee. But it did not omit those
words, and therefore in my view required the
first-level panel to make its own assessment of the
credibility of the evidence before it.' That it is its
own assessment that is required and not a guess as
to what judgment a second-level tribunal would
make on credibility is evident, first of all, from the
word order in the subsection. The second-level
tribunal is mentioned only in the subsequent rela
tive clause. It is the first-level panel which has to
I find, no linguistic warrant for distinguishing the words
"credible" and "trustworthy", and so for the most part simply
use the word "credible".
be "of the opinion that there is any credible or
trustworthy evidence." The same conclusion, it
seems to me also flows from subsection 46(4),
which reads as follows:
46. . . .
(4) The adjudicator and the member of the Refugee Division
may base their decisions with respect to the matters referred to
in paragraphs (1)(b) and (c) on evidence adduced at the
inquiry or hearing and considered credible or trustworthy in the
circumstances of the case.
It is the first-level tribunal which must base its
decision on evidence which in the circumstances of
the case, is considered credible or trustworthy,
evidently by it.
The concept of "credible evidence" is not, of
course, the same as that of the credibility of the
applicant, but it is obvious that where the only
evidence before a tribunal linking the applicant to
his claim is that of the applicant himself (in addi
tion, perhaps, to "country reports" from which
nothing about the applicant's claim can be directly
deduced), a tribunal's perception that he is not a
credible witness effectively amounts to a finding
that there is no credible evidence on which the
second-level tribunal could allow his claim.
I would add that in my view, even without
disbelieving every word an applicant has uttered, a
first-level panel may reasonably find him so lack
ing in credibility that it concludes there is no
credible evidence relevant to his claim on which a
second-level panel could uphold that claim. In
other words, a general finding of a lack of credibil
ity on the part of the applicant may conceivably
extend to all relevant evidence emanating from his
testimony. Of course, since an applicant has to
establish that all the elements of the definition of
Convention refugee are verified in his case, a
first-level panel's conclusion that there is no cred
ible basis for any element of his claim is sufficient.
The foregoing analysis is, I believe, sufficient to
dispose of the applicant's argument with respect to
the panel's finding that he lacked credibility as a
witness, if that was what the panel here found. In
fact, it is not clear from the reasons of the panel in
the case at bar that it did find the applicant
lacking in credibility, and so his counsel argued his
case on this ground in the alternative.
The applicant testified that he and his family
finally left Uganda for Kenya after they came to
think that Uganda's National Resistance Army
seized and killed his father, and then tried to
coerce him into joining the army, saying that rebel
forces had killed his father and that he should join
the army to get revenge on those rebel forces.
Here it was not the bare facts as such that were
in issue but rather the conclusions that could
reasonably be drawn from them. The panel said
(Record of Inquiry, August 11, 1989):
Regarding the army conscription, I'm directed to the Encyclo
pedia of the Third World, that is Exhibit P-5, and under the
section defense, there is a quote, and I quote; it states that
"enlistment in the army is entirely voluntary." Now you have
testified that the army asked you to join after your father's
death.
The circumstances to say the least is [sic] highly unusual. In
our opinion, military service, compulsory or otherwise, is a
practice recognized internationally and does not per se consti
tute persecution.
Now the circumstances in which you were asked to join the
army, show by your testimony that no violence was applied on
you, as a matter of fact you had testified that you were asked to
join politely by the authorities.
There is no evidence of persecution in this matter. In 1986, the
documentary evidence show that Mr. Museveni and his forces
were still fighting to gain control over the totality of the
country, and it might well be possible that he tried to recruit as
many people as possible to join his army.
But the country is stable now and there is no evidence in front
of us to indicate that the conditions of 86 prevail today, and
why you have a fear of being recruited by the army today.
Now Mr. Sheikl [sic], the question remains why the army
would want to persecute you. The evidence before us shows that
after your father's death the soldiers came. They did not arrest
you.
When the soldiers came before, to take your father to identify
the trucks they did not arrest you. There is no indication of
mistreatment of you. Your fear that you will be killed by the
authorities is in our opinion mere conjecture, and not plausible.
Now you believed it was a trick to kill you, that is why the
soldiers wanted to join you ... join the army. Now it makes no
sense to us why the army wanted to kill you in the first place,
and if they want to kill you why they would take this approach
to recruit you, and then eliminate you.
Now there is no evidence to support who killed your father.
There are no reports concerning his death, no eye witnesses, the
behaviour of the government authorities contradicts the claim
that these troops, the government troops intended to kill you.
• • •
So again I direct you again to the definition of the Immigration
Act, section 48.01(6) [sic], and it is the opinion of the board
member and I that there is not any credible basis for your
claim that the refugee division might determine you to be a
convention refugee.
As I interpret the panel's reasoning, it accepted
the extrinsic facts as presented by the applicant
but found the inferences he drew from those facts
to be "mere conjecture, and not plausible." In my
view, what the first-level tribunal thereby incorpo
rated in the evidence were the inferences as well as
the facts. It was not necessary for the panel to take
the position it did with respect to the inferences,
but since it chose to integrate facts and inferences,
I find myself unable to say that it erred in so
doing, and in the result there was in its opinion no
credible or trustworthy evidence on the basis of
which a second-level panel could have come to a
conclusion favourable to the applicant.
I should also add that I do not interpret the
panel's reference to the absence of past persecution
as amounting to a requirement of past persecution
to establish the objective element of his claim, viz.
that his fear was well-founded, rather the panel
was merely noting an absence of relevant evidence.
With respect to the conduct at the hearing of
the applicant's counsel, who was designated for
him in accordance with the Regulations, the argu
ment was made that he fell asleep on three occa
sions during the hearing, twice during cross-exami
nation and once during the reading of the
decision. 2 It goes almost without saying that such
2 The applicant was represented by new counsel before this
Court.
conduct must be a matter of particular concern for
a Court where a counsel is not of the applicant's
choosing but designated. In Strickland v. Wash-
ington, 466 U.S. 668 (1984), the U.S. Supreme
Court held that a criminal defendant was entitled
to reasonably effective assistance from his counsel.
Justice O'Connor said for the majority (at page
694):
The defendant must show that there is a reasonable probability
that, but for counsel's unprofessional errors, the result of the
proceeding would have been different. A reasonable probability
is a probability sufficient to undermine confidence in the
outcome.
Strickland was adopted by the Ontario Court of
Appeal in R. v. Garofoli (1988), 41 C.C.C. (3d)
97, at page 152.
The applicant argued that in the peculiar case of
a sleeping counsel, it is not necessary that the
person affected show that any prejudice has result
ed: favor v. U.S., 724 F. 2d 831 (9th Circ., 1984).
Circuit Judge Ferguson held as follows for the
Court (at page 833):
Today we conclude that when an attorney for a criminal
defendant sleeps through a substantial portion of the trial, such
conduct is inherently prejudicial and thus no separate showing
of prejudice is necessary.
I would be prepared to adopt such a holding, but I
would emphasize that in any case where it was
applied it would have to be based on a very precise
factual foundation. In favor, for example the
appellate court had the advantage of just such a
factual finding by a United States magistrate.
After a hearing, the magistrate found (at page
832):
... that petitioner's trial counsel was asleep or dozing, and not
alert to proceedings, during a substantial part of the trial of
petitioner and his two co-defendants; that by reason thereof
petitioner was not assisted by counsel at a substantial portion of
the trial, including some occasions when evidence relevant to
the prosecution case against defendant and very likely to his
defense was being elicited and the participation of trial counsel
(to observe witnesses, listen to testimony, consider the posing of
objections, prepare cross-examination of witnesses, consider the
preparation of rebuttal evidence, and prepare argument on such
evidence) was proper; that such conduct was not usual or
customary by defense counsel, but was, on the contrary, rare, if
ever.
Given the possibility that a judgment of this kind
could found either an action in negligence by the
aggrieved client or disciplinary proceedings by the
relevant law society, to say nothing of the general
loss of reputation on the part of such a sleeping
counsel, a Court would want to be sure that its
conclusion was warranted before so pronouncing.
In the case at bar there are a number of refer
ences to the problem in the proceedings. One
instance occurred on July 13, 1989 (at page 22):
ADJUDICATOR: And I find it extremely awkward, but I need ...
it appears that counsel is falling asleep if I can use the
vernacular.
COUNSEL: I'm alright, go ahead.
ADJUDICATOR: It's just that it ... you would recognize ... that
your client will be ill-served if ...
COUNSEL: Yeah, alright.
ADJUDICATOR: I would, I would have preferred to be more
tactful ... but I just ... just there was no other way for me to
express this.
There was an earlier, more oblique reference, on
July 13 (at page 10):
It appears that it is about two thirty and some members at this
inquiry are ... appeared to be tired, so maybe we can recess for
a few minutes. This inquiry is recessed.
Another reference occurred on July 26, 1989:
ADJUDICATOR: Excuse me I'm sorry I think counsel appears to
be dozing off. Are you alright Mr....
COUNSEL: Fine, perfect.
A final occasion was during the reading of the
decision on August 11, 1989:
PERSON CONCERNED: He wants to remind you, he was wonder
ing if for his lawyer is attentive to what you are saying.
ADJUDICATOR: Yes, Mr.... appears, is attentive, alright.
This is certainly enough evidence to establish
that there was a problem, but not the exact dimen
sions of the problem. The Adjudicator was alert,
even if the counsel was not, and appears to have
intervened relatively quickly on each occasion,
thus possibly reducing the scope of the problem. In
any event, it was open to the applicant to have
filed an affidavit setting out that the presentation
of his cause was substantially affected by his coun
sel's dereliction. There could then have been cross-
examination on the affidavit, if necessary, or coun-
ter-affidavits. It was the applicant's choice as to
how to proceed. He has chosen not to adduce any
evidence on the issue, but to rely on four brief
references in the proceedings, references from
which only the existence but not the dimensions of
the problem can be deduced. He cannot therefore
be surprised that a Court does not find in his
favour on the evidence before it.
In the result the section 28 application must be
dismissed.
IAconucci C.J.: I agree.
DESJARDINS J.A.: I concur.
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.