A-549-90
Olajide Olaitan Lawal (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
and
Attorney General of Canada (Mis -en-cause)
INDEXED AS: LAWAL V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION) (C.A.)
Court of Appeal, Pratte, Marceau and Hugessen
JJ.A.—Montréal, February 19; Ottawa, March 8,
1991.
Immigration — Practice — Immigration and Refugee
Board, Refugee Division Refugee claim based on involve
ment in labour dispute resulting in blackout affecting all
Nigeria for three days Charged with offence punishable by
life imprisonment — Disproportionality of punishment to
crime said to constitute persecution — Decision taken under
reserve — Applicant seeking to re-open hearing to enter into
evidence newspaper article naming him as charged with "eco-
nomic sabotage" — Board advising counsel it would take
'judicial notice" of material received — Initiating own in
quiries into details of charges, dispositions against others
involved in blackout, and publication schedule of newspaper
Applicant objecting hearing necessary Board erred in law
— Evidence gathered and relied upon in decision neither
recognized facts, nor information or opinion within Board's
specialized knowledge which Refugee Division permitted to
judicially notice by Immigration Act, s. 68(4) — S. 67(2)
empowering Board to institute own inquiries only for purposes
of hearing S. 69.1(4) requiring hearings held in presence of
claimant.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Immigration Act, R.S.C., 1985, c. I-2, s. 46.02 (as enact
ed by R.S.C., 1985 (4th Supp.), c. 28, s. 14), 67 (as
am. idem, s. I8), 68 (as am. idem), 69.1 (as enacted
idem), 82.1(1) (as enacted idem, s. 19), 82.3(2) (as
enacted idem).
COUNSEL:
Jean Fauteux for applicant.
Hélène Sasseville for respondent.
SOLICITORS:
Leduc, Fauteux, Quévillon, La Charité, Mar-
tinez & Petit, Montréal, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HUGESSEN J.A.: This case raises a narrow but
important point regarding the procedure to be
followed by the Refugee Division of the Immigra
tion and Refugee Board.
The applicant is a refugee claimant from Nig-
eria. He arrived in Canada February 28, 1989 and
on March 8, 1989 he was determined to have a
credible basis for his claim which was accordingly
referred to the Refugee Division pursuant to the
provisions of subsection 46.02(2) of the Immigra
tion Act [R.S.C., 1985, c. I-2 (as enacted by
R.S.C., 1985 (4th Supp.), c. 28, s. 14)]. By a
decision dated February 6, 1990, the Refugee
Division determined the applicant not to be a
Convention refugee. Since in their reasons, (but
not in their formal order), the Refugee Division
also purported to find, pursuant to subsection
69.1(12) [as enacted idem, s. 18], that the appli
cant did not have a credible basis for his claim, an
appeal to this Court was precluded by the provi
sions of subsection 82.3(2) [as enacted idem, s.
19]. The applicant accordingly sought and
obtained leave pursuant to subsection 82.1(1) [as
enacted idem] to commence the present proceed
ings under section 28 of the Federal Court Act
[R.S.C., 1985, c. F-7].
Briefly put, the applicant's claim to refugee
status was based on his contention that he had
been the president of a local of his union, the
Senior Staff Association, which was engaged in a
labour dispute with his employer, the Nigerian
Electrical Power Authority (NEPA). The appli
cant claimed to have been implicated, along with
others, in activities which resulted in the whole
country being blacked out for three days in Octo-
ber, 1988; as,a result they were charged with an
offence punishable (and in fact punished in the
case of those who were convicted) by life imprison-
ment. The disproportionality of the punishment to
the offence was said to amount to persecution.
The Refugee Division held hearings on March
30 and April 4, 1989 at which witnesses were
heard and a number of documents produced. The
Board was assisted by a refugee hearing officer
and the applicant was present in person and was
represented by counsel. At the conclusion of the
hearing of April 19, 1989, the hearing officer
summed up the evidence and counsel made
representations following which the presiding
member, Mr. Daoussis said:
—Well, this concludes the hearing of the claim to refugee
status presented by Mr. Olajide Olaitan Lanai (sic), and the
decision is taken under reserve. (Case, Vol I, at p. 134.)
If the Board had truly concluded and reserved at
this point, all would have been well.
The trouble started innocently enough with a
letter from the applicant's counsel dated May 19,
1989 in which she requested a re-opening of the
hearing. The purpose was to enter into evidence a
page from the Daily Times of Nigeria of May 10,
1989 containing an article in which the applicant
was mentioned by name as one of those charged
with "economic sabotage" as a result of a labour
dispute at NEPA. This was obviously an important
piece of evidence for the claimant since it amount
ed to independent confirmation of the fact that the
authorities viewed him as one of those responsible
for the blackout.
There can be no doubt that counsel was asking
for a formal re-opening of the hearing; this is clear
not only from the text of the letter itself but also
from a further letter sent by counsel on May 25,
1989 (case, at page 192) where she indicated the
dates when she would not be available for such a
hearing because of her summer vacation.
The Board, however, does not seem to have
understood counsel's request. On the one hand, it
wrote to counsel on May 26, 1989 indicating that
it would accept the newspaper article. On the other
hand, the Board, at the same time, instituted its
own inquiries. On May 19, 1989, Mr. Daoussis
requested information from the Board's documen
tation centre with regard to the names of the
persons charged as a result of the blackout in
October, 1988. When the documentation centre
responded with a number of newspaper clippings
and a report prepared with the assistance of the
Department of External Affairs, the Board wrote
to the applicant's counsel on June 20, 1989 enclos
ing copies of the material it had received and
advising counsel that it proposed to take "judicial
notice" thereof. By a letter of June 29, 1989,
counsel objected to this procedure on the grounds
that the Board was not entitled to go searching for
evidence and that, in any event, a hearing was
necessary. The Board did not respond to this
objection.
Although the material before the Court is not
complete in this respect, it seems that the Board
also initiated further inquiries with regard to the
authenticity of the extract of the Daily Times of
Nigeria which had been previously sent to it by
counsel. On November 8, 1989, the Board sent
copies of what purported to be the Daily Times of
May 10, 1989 in which the article mentioning the
applicant's involvement did not appear. According
to the Board's letter to counsel (case, at page 231)
it had received this material from its documenta
tion centre but there is no indication as to how or
when it was requested.'
Counsel, in any event, seems to have been
informed prior to this time of the Board's concern
for the authenticity of the extract of the Daily
Times for she had obtained information from the
publisher thereof in a letter dated October 4, 1989
(case, at page 224). This letter, which was sent to
the Board on October 25, 1989, confirmed that the
page containing the article mentioning the appli
cant's involvement had in fact been published by
them.
It does seem clear from a document entitled "Affidavit", an
unsworn statement from a member of the staff of the Canadian
High Commission in Lagos, that a request from the Board
concerning the relevant issue of the Daily Times of Nigeria was
received at the High Commission as early as September 14,
1989. (Case, at p. 247.)
The Board itself, on November 22, 1989, wrote
to the Daily Times of Nigeria enclosing the two
apparently conflicting versions of the publication
and received a reply dated December 12, 1989, as
follows:
We hereby confirm the two publications were from our office,
as we normally print two editions daily. There is nothing wrong
with the two publications. (Case, at p. 253.)
Apparently still unsatisfied with the information
it had received, some of it on its own initiative, the
Board, on January 17, 1990, requested from the
documentation centre further information as to the
number of editions of the Daily Times which were
published each day and how they were distin
guished from one another. On January 18, 1990,
the documentation centre reported, based on inter
views with an official of the Nigerian High Com
mission, a foreign service officer recently returned
from Nigeria and a former resident of Nigeria,
that the Daily Times published only one edition
each day. This material was duly communicated to
the applicant's counsel following which the Board
rendered its decision.
In its reasons, the Board specifically refused to
give any credence to the Daily Times' article or to
the letters received from the newspaper confirming
the authenticity thereof. Explaining its enthusias
tic search for evidence after the hearing had been
concluded, the Board Said:
The members of the panel's interpretation of section 68(5) of
the Immigration Act is that the legislator's intent was not to
restrain the Refugee Division from taking notice of available
information during its deliberations provided that the parties
are advised of this information and are given the opportunity to
submit their observations.
Section 68(4) stipulates that the Refugee Division may, subject
to subsection 68(5) take notice of any generally recognized
facts and any information or opinion that is within its special
knowledge. (Case, at p. 271.)
In my view, it is clear that the Board erred in
law in acting as it did. The principal provisions
relating to the conduct of hearings before the
Board are found in sections 67 [as am. by R.S.C.,
1985 (4th Supp.), c. 28, s. 18], 68 [as am. idem]
and 69.1 [as enacted idem] of the Immigration
Act:
67. (I) The Refugee Division has, in respect of proceedings
under sections 69.1 and 69.2, sole and exclusive jurisdiction to
hear and determine all questions of law and fact, including
questions of jurisdiction.
(2) The Refugee Division, and each member thereof, has all
the powers and authority of a commissioner appointed under
Part I of the Inquiries Act and, without restricting the general
ity of the foregoing, may, for the purposes of a hearing,
(a) issue a summons to any person requiring that person to
appear at the time and place mentioned therein to testify
with respect to all matters within that person's knowledge
relative to the subject-matter of the hearing and to bring and
produce any document, book or paper that the person has or
controls relative to that subject-matter;
(b) administer oaths and examine any person on oath;
(c) issue commissions or requests to take evidence in Canada;
and
(d) do any other thing necessary to provide a full and proper
hearing.
68. (1) The Refugee Division shall sit at such times and at
such places in Canada as are considered necessary by the
Chairman for the proper conduct of its business.
(2) The Refugee Division shall deal with all proceedings
before it as informally and expeditiously as the circumstances
and the considerations of fairness permit.
(3) The Refugee Division is not bound by any legal or
technical rules of evidence and, in any proceedings before it, it
may receive and base a decision on evidence adduced in the
proceedings and considered credible or trustworthy in the cir
cumstances of the case.
(4) The Refugee Division may, in any proceedings before it,
take notice of any facts that may be judicially noticed and,
subject to subsection (5), of any other generally recognized
facts and any information or opinion that is within its special
ized knowledge.
(5) Before the Refugee Division takes notice of any facts,
information or opinion, other than facts that may be judicially
noticed, in any proceedings, the Division shall notify the Minis
ter, if present at the proceedings, and the person who is the
subject of the proceedings of its intention and afford them a
reasonable opportunity to make representations with respect
thereto.
69.1 (1) Subject to subsection (2), where a person's claim to
be a Convention refugee is referred to the Refugee Division
pursuant to subsection 46.02(2) or 46.03(5), the Division shall
as soon as practicable commence a hearing into the claim.
(2) Where a person's claim to be a Convention refugee is
referred to the Refugee Division pursuant to subsection
46.02(2) or 46.03(5) and a conditional removal order is made
against, or a conditional departure notice is issued to, that
person, a time for the commencement of the hearing by the
Division into the claim shall be set within ten days after the
conclusion of the inquiry.
(3) The Refugee Division shall notify the claimant and the
Minister in writing of the time and place set for the hearing
into the claim.
(4) A hearing into a claim shall be held in the presence of the
claimant.
(5) At the hearing into a claim, the Refugee Division
(a) shall afford the claimant a reasonable opportunity to
present evidence, cross-examine witnesses and make
representations; and
(b) shall afford the Minister a reasonable opportunity to
present evidence and, if the Minister notifies the Refugee
Division that the Minister is of the opinion that matters
involving section E or F of Article 1 of the Convention or
subsection 2(2) of this Act are raised by the claim, ,to
cross-examine witnesses and make representations.
(6) If a claimant or a claimant's counsel or agent fails to
appear at the time and place set by the Refugee Division for
the hearing into the claim or, in the opinion of the Division, is
otherwise in default in the prosecution of the claim, the Divi
sion may, after giving the claimant a reasonable opportunity to
be heard, declare the claim to have been abandoned.
(7) Subject to subsection (8), two members constitute a
quorum of the Refugee Division for the purposes of a hearing
under this section.
(8) One member of the Refugee Division may hear and
determine a claim under this section if the claimant so requests
or consents thereto, and the provisions of this Part apply in
respect of a member so acting as they apply in respect of the
Refugee Division and the disposition of the claim by the
member shall be deemed to be the disposition of the Refugee
Division.
(9) The Refugee Division shall determine whether or not the
claimant is a Convention refugee and shall render its decision
as soon as possible after completion of the hearing and send a
written notice of the decision to the claimant and the Minister.
(10) In the event of a split decision, the decision favourable
to the claimant shall be deemed to be the decision of the
Refugee Division.
(I 1) The Refugee Division may give written reasons for its
decision on a claim, except that
(a) if the decision is against the claimant, the Division shall
give written reasons with the decision; and
(b) if the Minister or the claimant requests written reasons
within ten days after the day on which the Minister or
claimant is notified of the decision, the Division shall forth
with give written reasons.
(12) If the Refugee Division determines that a claimant is
not a Convention refugee and does not have a credible basis for
the claim to be a Convention refugee, the Refugee Division
shall so indicate in its decision on the claim.
The members of the panel obviously misap
prehended the nature of the power conferred by
subsections 68(4) and 68(5). By its terms, subsec
tion 68(4) is limited to facts which may be judi
cially noticed, generally recognized facts, and
information or opinion that is within the Board's
specialized knowledge. By no stretch of the imagi
nation, could the details of the charges and of the
dispositions against the persons involved in the
Nigerian blackout of October 1988, or the details
of the publication schedule of the Nigerian Daily
Times fall into any of those categories.
While it is possible, as argued by counsel for the
Minister, that subsection 67(2) gives to the Board
the power to institute inquiries on its own, it is
clear that such powers may only be exercised "for
the purposes of a hearing". More specifically, the
power given by paragraph 67(2)(d) and relied on
by counsel may only be invoked if "necessary to
provide a full and proper hearing" [underlining
added].
But there is more. Subsection 69.1(4) specifical
ly requires that the Refugee Division hold its
hearings in the presence of the claimant. A con
sideration of the scheme of sections 67 to 69.1
inclusive makes it abundantly clear that the Board
is only to proceed to the determination of refugee
claims by way of hearing. In the context, this must
mean an oral hearing. The Board has no power to
take evidence other than at a hearing and, absent a
proper waiver, such hearing must be in the pres
ence of the claimant.
In the present case, the Board, following the
conclusion of its hearing, received a large quantity
of evidence upon which it relied for the purposes of
its decision. There is no question of any waiver and
the applicant's counsel's specific objection and
request for a re-opening of the hearing was simply
ignored. The decision cannot stand.
I would allow the section 28 application, set
aside the decision and remit the matter to the
Board for a new hearing to be held in the presence
of the claimant.
PRATTE J.A.: I agree.
MARCEAU J.A.: I agree.
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.