A-993-90
A-222-91
Joseph Orelien and Marie Aurelien (Applicants)
v.
The Minister of Employment and Immigration
(Respondent)
INDEXED AS: OREL/ENV. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION) (CA.)
Court of Appeal, Heald, Mahoney and Stone
JJ.A.—Winnipeg, November 6 and 7; Ottawa, Nov-
ember 22, 1991.
Immigration — Refugee status — Applicants found by adju
dicator and Refugee Division member to have no credible
basis for Convention refugee claims — Departure notices
issued, not complied with — Deportation orders made after
second inquiry — Applicants' arguments based on Charter,
Bill of Rights, international law and merits of case — Scheme
of Immigration Act, ss. 46(2), 46.01 analysed — Burden of
proof as to credible basis on claimant — First and second level
hearings distinguished — Charter, s. 7, Bill of Rights, s. 2(e)
not offended by Immigration Act, s. 46(2) — Failure of tribunal
to refer to matters required to consider by s. 46.01(6).
The applicants, both Haitians, were subject to departure
notices after they had been found by an adjudicator and Refu
gee Division member to have no credible basis for their claims
to be Convention refugees. Having disobeyed the departure
notices, another inquiry was held and they were found ineligi
ble to have new Convention refugee claims dealt with; depor
tation orders were made. These decisions and orders gave rise
to applications under the Federal Court Act, section 28 to
review the no credible evidence finding and to set aside the
deportation orders. Whether the deportation orders were lawful
depends on the legality of the departure notices which, in turn,
depends on the legality of the initial determination that there
was no credible evidence upon which the Refugee Division
could find them to be Convention refugees. The applicants'
arguments were based on: 1) the Canadian Charter of Rights
and Freedoms and the Canadian Bill of Rights 2) international
law and 3) the merits of the case.
Held, the applications should be allowed.
1) Either paragraph 2(e) of the Canadian Bill of Rights or
section 7 of the Canadian Charter of Rights and Freedoms is
engaged when a person claims to be a Convention refugee. The
applicants argued that these provisions were infringed on five
different grounds: i) the participation of an adjudicator, ii) the
adversarial role of the case presenting officer, iii) the burden of
proof, iv) the denial of credible basis and v) the adequacy of
judicial review.
i) It was argued that adjudicators, being immigration judges,
tend to view refugee claimants as a threat to the integrity of the
scheme of the Immigration Act. The preliminary determination
by an adjudicator that, but for the claim to be a Convention
refugee, a person would not be entitled to enter or remain in
Canada does not prejudge the validity of the refugee claim.
Institutional partiality on the part of the adjudicator is not
inherent in the scheme of the Act. There was no evidence to
support the allegation of institutional bias. The recognition of
the right of genuine Convention refugees to remain in Canada
is as much part and parcel of the scheme of the Act as anything
else adjudicators may be called upon to decide. ii) Paragraph
200 of the Handbook on Procedures and Criteria for Deter
mining Refugee Status, which says that the examiner must gain
the confidence of the applicant, does not contemplate an adver
sarial screening process. It is the claimant's counsel not the
case presenting officer who, in the scheme of the Act, is called
upon to gain the claimant's confidence and assist in putting the
case forward. There is nothing inherently offensive to funda
mental justice in an adversarial proceeding. The adversarial
role of the case presenting officer at the credible basis hearing
does not impair any right accorded a refugee claimant by sec
tion 7 of the Charter or paragraph 2(e) of the Bill of Rights. iii)
According to the Act, subsection 46(2), the claimant must
prove that his claim is eligible for determination by the Refu
gee Division and has a credible basis. The applicants submitted
that such requirement is a denial of fundamental justice. How
ever, they failed to make a distinction between first and second
level hearings. At the second level hearing, where the issue is
whether or not the claimant is, in fact, a Convention refugee,
there is a weighing of evidence by the Refugee Division and
room for the benefit of the doubt. But all the first level panel is
entitled to do is determine whether there is any credible evi
dence upon which the Refugee Division, at the second level,
might determine the claimant to be a Convention Refugee.
There is no weighing of conflicting evidence at that stage and
no room for benefit of the doubt. Neither the Charter nor Bill
of Rights are offended by subsection 46(2) of the Act. iv) The
argument that because a no credible basis determination denies
the claimant the right to remain in Canada pending judicial
review, this amounts to a denial of the right to a fair hearing in
accordance with the principles of natural justice is not really an
attack on the power of the first level tribunal to find no credi
ble basis; it is an attack on the potential consequences of such a
finding. The adjudicator correctly decided that he had no
authority to direct that the applicants be allowed to remain in
Canada pending judicial review. Whether execution of a
deportation order ought to be stayed for that purpose is a ques
tion for the Court. There is no merit in the argument that the
power of the first level tribunal to find no credible or trustwor
thy evidence upon which the Refugee Division might find a
claimant to be a Convention refugee and the consequent power
of the adjudicator to order deportation offend either section 7
of the Charter or paragraph 2(e) of the Bill of Rights. v) Under
paragraph 28(1)(c) of the Federal Court Act, this Court is enti
tled to set aside a decision finding no credible basis only if the
tribunal based its decision on an erroneous finding of fact and
made the finding in a perverse or capricious manner or without
regard for the material before it. The applicants' submission
that this is too narrow a basis of judicial review to satisfy the
requirements of fundamental justice is not relevant to any issue
before the Court in either of the applications herein.
2) The credible basis hearing is said to violate Canada's
obligations under the Fourth Geneva Convention, Protocol II
to the Geneva Conventions and a customary norm of tempo
rary refuge. Those international instruments and laws have the
force of domestic law in Canada and can be enforced in the
courts of Canada at the suit of a private individual. However,
the duty or intention to execute a deportation order which
would breach those laws does not in any way colour the pro
cess, under the Immigration Act, by which a person from a
country like Haiti may be determined not to have a credible
basis for a claim to be a Convention refugee or the making of a
deportation order consequent to that finding. These issues are
not questions with which the first level tribunal or the adjudi
cator alone in making their decisions and orders nor this Court
in reviewing them can be concerned.
3) The applicants argued that the tribunal misunderstood
their argument and insisted that all Haitians outside Haiti have
a credible basis for claiming to be refugees. It is not axiomatic
that nationals of a country who have escaped that country may
not have a well founded fear of persecution by reason of their
nationality should they be returned. There is ample evidence as
to conditions in Haiti on the record. The tribunal did not refer
at all to the matters which paragraphs (a) and (b) of subsection
46.01(6) required it to consider. Given the tribunal's misstate
ment of the argument based on nationality, it must not be
assumed that the evidence was considered properly. There is
nothing to distinguish the applicants' claim to be persecuted by
reason of membership in that particular social group of poor
and disadvantaged people from their claim to be persecuted by
reason of Haitian nationality itself. The first level tribunal did
err in approaching the applicants' claim on the merits as it did.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Bill of Rights, R.S.C., 1985, Appendix III, s.
2(e).
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], s. 7.
Canadian Human Rights Act, S.C. 1976-77, c. 33.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 28, 52.
Geneva Conventions Act, R.S.C., 1985, c. G-3, s. 2 (as
am. by S.C. 1990, c. 14, s. 1).
Immigration Act, R.S.C., 1985, c. I-2, ss. 46(1),(2) (as am.
by R.S.C., 1985 (4th Supp.), c. 28, s. 14), 46.01, 46.02
(as am. idem).
Immigration Act, 1976, S.C. 1976-77, c. 52.
United Nations Convention Relating to the Status of Refu
gees, July 28, 1951, [1969] Can. T.S. No. 6.
CASES JUDICIALLY CONSIDERED
APPLIED:
Singh et al. v. Minister of Employment and Immigration,
[1985] 1 S.C.R. 177; (1985), 17 D.L.R. (4th) 422; 12
Admin. L.R. 137; 14 C.R.R. 13; 58 N.R. 1; Danson v.
Ontario (Attorney General), [1990] 2 S.C.R. 1086;
(1990), 73 D.L.R. (4th) 686; 43 C.P.C. (2d) 165; 112 N.R.
362; Leung v. Canada (Minister of Employment & Immi
gration) (1990), 74 D.L.R. (4th) 313; 12 Imm. L.R. (2d)
43 (F.C.A.); R. v. Lyons, [1987] 2 S.C.R. 309; (1987), 44
D.L.R. (4th) 193; 37 C.C.C. (3d) 1; 61 C.R. (3d) 1; 80
N.R. 161.
CONSIDERED:
MacBain v. Lederman, [1985] 1 F.C. 856; (1985), 22
D.L.R. (4th) 119; 16 Admin. L.R. 109; 6 C.H.R.R.
D/3064; 85 CLLC 17,023; 18 C.R.R. 165; 62 N.R. 117
(C.A.); Canadian Council of Churches v. Canada, [1990]
2 F.C. 534; (1990), 106 N.R. 61 (C.A.).
REFERRED TO:
Valente v. The Queen et al., [1985] 2 S.C.R. 673; (1985),
52 O.R. (2d) 779; 24 D.L.R. (4th) 161; 23 C.C.C. (3d)
193; 49 C.R. (3d) 97; 19 C.R.R. 354; 37 M.V.R. 9; 64
N.R. 1; 14 O.A.C. 79; Mohammad v. Canada (Minister of
Employment and Immigration), [1989] 2 F.C. 363; (1988),
55 D.L.R. (4th) 321; 21 F.T.R. 240 (note); 91 N.R. 121
(C.A.).
AUTHORS CITED
Canada, Immigration and Refugee Board, Refugee
Determination—What it is and How it Works.
Office of the United Nations High Commissioner for Ref
ugees. Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Convention
and the 1967 Protocol relating to the Status of Refu
gees, Geneva, September 1979.
Paciocco, David M. Charter Principles and Proof in
Criminal Cases, Toronto: Carswell, 1987.
Perluss, Deborah and Hartman, Joan F. "Temporary Ref
uge: Emergence of a Customary Norm" (1986), 26
Virg. il. Int'l Law 551.
COUNSEL:
David Matas for applicants.
Gerald L. Chartier and Brian H. Hay for
respondent.
SOLICITORS:
David Matas, Winnipeg, for applicants.
Deputy Attorney General of Canada for respon
dent.
The following are the reasons for judgment ren
dered in English by
MAHONEY J.A.: The applicants, husband and wife,
are Haitians. They were found, by an adjudicator and
Refugee Division member, to have no credible basis
for their claims to be Convention refugees. Departure
notices were issued by the adjudicator. Those are the
decisions and orders subject of the section 28 [Fed-
eral Court Act, R.S.C., 1985, c. F-7] application
under file no. A-993-90.
The applicants did not comply with the departure
notices. Another inquiry was convened. The appli
cants were found ineligible to have new claims to be
Convention refugees dealt with and deportation
orders were made. Those are the decisions and orders
subject of the section 28 application under file no. A-
222-91.
In view of paragraph 46.01(1)(f) of the Immigra
tion Act,' the decision at the second inquiry that the
applicants were not eligible to have their claims
determined is not open to challenge. Whether the
deportation orders are lawful depends entirely on
whether the departure notices were lawful and that, in
turn, depends entirely on the legality of the initial
determination that there was no credible evidence
upon which the Refugee Division might find them to
be Convention refugees.
The applicants raised below and pursued before us
arguments which may conveniently be categorized
under three heads: (A) Charter and Bill of Rights
arguments; (B) international law arguments and (C)
arguments on the particular merits.
The Charter and Bill of Rights arguments all assert
that the credible basis hearing mandated by subsec
tion 46(1) of the Act does not afford claimants a fair
hearing in accordance with the principles of funda
mental justice required by paragraph 2(e) of the
Canadian Bill of Rights [R.S.C., 1985, Appendix III]
and guaranteed by section 7 of the Canadian Charter
of Rights and Freedoms [being Part I of the Constitu
tion Act, 1982, Schedule B, Canada Act 1982, 1982,
c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]].
2. Every law of Canada shall, unless it is expressly declared
by an Act of the Parliament of Canada that it shall operate not
withstanding the Canadian Bill of Rights, be so construed and
applied as not to abrogate, abridge or infringe or to authorize
the abrogation, abridgement or infringement of any of the
rights or freedoms herein recognized and declared, and in par
ticular, no law of Canada shall be construed or applied so as to
1 R.S.C., 1985, c. 1-2, as amended by R.S.C., 1985 (4th
Supp.), c. 28, s. 14.
46.01. (1) A person who claims to be a Convention refu
gee is not eligible to have the claim determined by the Refu
gee Division if
() in the case of a claimant to whom a departure notice
has been issued, the claimant has not left Canada or, having
left Canada pursuant to the notice, has not been granted law
ful permission to be in any other country.
(e) deprive a person of the right to a fair hearing in accor
dance with the principles of fundamental justice for the
determination of his rights and obligations....
7. Everyone has the right to life, liberty and security of the
person and the right not to be deprived thereof except in accor
dance with the principles of fundamental justice.
There is no doubt that one or the other of these provi
sions is engaged when a person claims to be a Con
vention refugee. 2
It is argued that they are infringed by:
1. the participation of an adjudicator in the credible
basis determination;
2. the participation of a case presenting officer in an
adversarial role in the credible basis hearing, particu
larly the right of that officer to cross-examine claim
ants;
3. the imposition on a claimant of the burden of prov
ing a credible basis for the claim and, in any event,
by the evidential requirement that the credible basis
of the claim be established on a balance of probabili
ties;
4. the power to deny that any person who claims to
be a Convention refugee has a credible basis for that
claim;
5. the limitations of sections 28 and 52 of the Federal
Court Act 3 on this Court's jurisdiction to interfere
with a decision or order.
In an argument made along with that described in
paragraph 3 but which spills into the international
category, it was urged that the imposition of the onus
to prove a credible basis for the claim violated
Canada's obligations under the United Nations Con
vention Relating to the Status of Refugee and hence
the Immigration Act itself as well as the Charter and
Bill of Rights.
In the international law arguments, the credible
basis hearing is said to violate Canada's obligations
under the Fourth Geneva Convention of August 12,
2 Singh et al. v. Minister of Employment and Immigration,
[1985] 1 S.C.R. 177.
3 R.S.C., 1985, c. F-7.
1949 and Protocol II to the Geneva Conventions of
August 12, 1949, both "approved" by Acts of Parlia
ment, 4 and a customary norm of temporary refuge. 5
The arguments, common to all three sources of
Canada's international obligations, is that the conse
quence of a negative finding by the first level tribunal
may result in deportation of a claimant contrary to
those obligations. As to the particular merits, it was
argued that the tribunal erred in not finding that there
was some credible evidence upon which the Refugee
Division might find the applicants to be Convention
refugees by reason of nationality, membership in a
particular social group and political opinion.
A. The Charter and Bill of Rights Arguments
1. Participation of an adjudicator
The gist of this argument is that an adjudicator is
an immigration judge, primarily charged with decid
ing whether or not persons are admissible to Canada
or, if in Canada, should be removed. The thesis is
that refugees are a loophole in the system in the sense
that, without refugee status, they may not meet crite
ria for admission and that, therefore, adjudicators
tend to view refugee claimants as a threat to the
integrity of the scheme of the Immigration Act. What
this boils down to is an allegation of institutional bias
founded on the mixture of functions committed to
adjudicators.
The respondent argues that this proposition has, by
necessary implication, been disposed of by this Court
contrary to the applicants' contention. In Mohammad
v. Canada (Minister of Employment and Immigra
tion), 6 it was held that the legislative scheme of the
Immigration Act, 1976 7 met the test of Valente v. The
4 Geneva Conventions Act, R.S.C., 1985, c. G-3, s. 2, as
amended by S.C. 1990, c. 14, s. 1.
5 Perluss and Hartman, "Temporary Refuge: Emergence of a
Customary Norm" (1986), Virg. .11. Int'l Law 551.
6 [1989] 2 F.C. 363 (C.A.).
7 S.C. 1976-77, c. 52.
Queen et al., 8 and that adjudicators were independent
tribunals within the contemplation of the require
ments of section 7 of the Charter. Adjudicators had
no role in the refugee determination process under
that Act however, in Canadian Council of Churches
v. Canada, 9 among the numerous issues was a motion
to strike a pleading seeking a declaration of the inva
lidity or inoperability of a number of provisions of
the present legislative scheme on the ground that
An immigration adjudicator is not independent and impartial,
thereby depriving the refugee of the right to a fair hearing in
accordance with the principles of fundamental justice ....
In striking the pleading, the Court held
This issue, however, has already been decided against the
respondent's point of view in Mohammad v. Minister of
Employment and Immigration ... This Court cannot reasona
bly be asked to reopen the question of the independence of
adjudicators a little more than a year after having decided the
issue.
While the Court did not, in its reasons, expressly
mention the institutional impartiality of adjudicators,
it was squarely in issue and, it seems to me, would
certainly have been mentioned had it been argued. I
do not think it can be safely concluded that the issue
has been settled.
An example of a reasonable apprehension of bias,
or institutional partiality, as a result of a mixture of
functions is found in MacBain v. Lederman, 10 where
the Canadian Human Rights Act, 11 as it then stood,
authorized the Canadian Human Rights Commission
to find a complaint to have been substantiated on the
basis of an investigation by a person it had designated
and then to designate the composition of the tribunal
that would again inquire into the matter, decide
whether the complaint was substantiated and, if so,
impose penalties and sanctions. The preliminary
determination by an adjudicator that, but for the
claim to be a Convention refugee, a person would not
be entitled to enter or remain in Canada in no way
prejudges, nor can it reasonably be seen as prejudg
ing, the validity of the refugee claim. Institutional
8 [1985] 2 S.C.R. 673.
9 [1990] 2 F.C. 534 (C.A.), at p. 555.
10 [1985] 1 F.C. 856 (C.A.).
11 S.C. 1976-77, c. 33.
partiality on the part of the adjudicator is not inherent
in the scheme of the Act.
There is not an iota of evidence to lend credence to
the applicants' basic premise that adjudicators tend to
view refugee claimants as a threat to the integrity of
the scheme of the Act. There is no reason why they
should; the recognition of the right of genuine Con
vention refugees to remain in Canada is as much part
and parcel of the scheme of the Act as anything else
adjudicators may be called upon to decide. It has
been held that: 12
In general, any Charter challenge based upon allegations of
unconstitutional effects of impugned legislation must be
accompanied by admissible evidence of the alleged effects.
The applicants' argument is utterly devoid of eviden-
tial and reasonable intellectual foundation.
2. Adversarial role of the case presenting officer
In this argument, the applicants rely particularly on
the following sentence from paragraph 200 of the
Handbook on Procedures and Criteria for Determin
ing Refugee Status. 13
200.... It will be necessary for the examiner to gain the con
fidence of the applicant in order to assist the latter in putting
forward his case and in fully explaining his opinions and feel
ings.
The applicants equate the case presenting officer to
the examiner and argue that the adversarial role, par
ticularly cross-examination, denies the claimant the
fundamental justice mandated by the Bill of Rights
and Charter. It may be noted that paragraph 200
begins with the following sentence.
200. An examination in depth of the different methods of
fact-finding is outside the scope of the present Handbook.
12 Danson v. Ontario (Attorney General), [1990] 2 S.C.R.
1086, at p. 1101.
13 Office of the United Nations High Commissioner for
Refugees, Geneva, September, 1979.
It is apparent that paragraph 200 does not contem
plate an adversarial screening process.
This Court has held: 14
... at the "credible basis" stage the tribunal is not to make
findings of fact but is limited to determining the existence of
credible or trustworthy evidence on each of the necessary ele
ments of the claim such that the Refugee Division might find
the applicant to be a Convention refugee. The primary role of
the tribunal is to test the credibility of the evidence; in per
forming that role it is entitled to draw such inferences as are
necessary for the purpose, as for example by determining that
all or part of a witness' story is unreliable because it is implau
sible or because the witness has contradicted himself.
It is trite to say that cross-examination is a valuable
tool in the ascertainment of truth and assessment of
credibility. Appropriate to the present argument, it
has been said: 15
Cross-examination is a means to an end, not an end in itself.
It is utilized to assist in demonstrating the extent of the
dependability of oral evidence.
The power and duty of the case presenting officer
to cross-examine claimants is not to be isolated from
other provisions of the Act. Among the mandated
attributes of the screening process, a claimant is
accorded an oral hearing [section 29], a right to coun
sel [subsection 30(1)] and, if need be, to have counsel
provided at public expense [subsection 30(2)1, a rea
sonable opportunity to present evidence, cross-
examine witnesses and make representations [subsec-
tion 46(3)] and the tribunal must give reasons for its
decision if it is adverse [section 46.02]. A later refer
ence to the Handbook will demonstrate that the term
"examiner" there appropriately describes different
functionaries in the Canadian refugee determination
process depending on what they do. It is the claim
ant's counsel not the case presenting officer who, in
the scheme of the Act, is called upon to gain the
claimant's confidence and assist in putting the case
forward.
There is obviously nothing inherently offensive to
fundamental justice in an adversarial proceeding; if
14 Leung v. Canada (Minister of Employment & Immigra
tion) (1990), 74 D.L.R. (4th) 313 (F.C.A.), at p. 314.
15 Paciocco, Charter Principles and Proof in Criminal
Cases, Carswell (1987), at p. 289.
there were, our judicial system would long since have
ceased to function as it, almost universally, does. The
applicants would like a system more favourable to
refugee claimants. It was said of a person tried for a
criminal offence in R. v. Lyons, t 6
s. 7 of the Charter entitles the appellant to a fair hearing; it
does not entitle him to the most favourable procedures that
could possibly be imagined.
That may equally be said of refugee claimants. In my
opinion, in the scheme of the Act, the adversarial role
of the case presenting officer at the credible basis
hearing does not impair any right accorded a refugee
claimant by section 7 of the Charter or paragraph 2(e)
of the Bill of Rights.
3. The burden of proof
The Act provides:
46....
(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 that claim rests on the claim
ant.
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 allege
fear of persecution in that country,
is of the opinion that there is any credible or trustworthy evi
dence 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. [Emphasis added.]
By subsection 46.03(5), if either or both the adjudica
tor or member find for the claimant, the claim is
referred to the Refugee Division.
16 [1987] 2 S.C.R. 309, at p. 362.
What the applicants allege to be a denial of funda
mental justice is the requirement that a claimant
establish, on a balance of probabilities, that evidence
adduced at the hearing is credible and trustworthy
and that the credible and trustworthy evidence might
lead the Refugee Division to conclude that the claim
ant is a Convention refugee. The applicants here dis
tinguish between the burden of adducing evidence
and the burden of persuasion. It is the imposition of
the latter burden which, they say, denies claimant
fundamental justice. As I understand the argument,
imposition of the burden of persuasion is tantamount
to denying the claimant the benefit of any doubt.
The applicants refer to a publication by the Immi
gration and Refugee Board entitled Refugee
Determination—What it is and how it works, in
which, over the signature of the chairman, it is said
[at page 1]:
In each case before the IRB, benefit of the doubt will lie with
the refugee claimant.
They find, in paragraphs 203 and 204 of the U.N.
Handbook previously cited, support for the proposi
tion that for a refugee claimant to be denied the bene
fit of the doubt when making a refugee claim is a
denial of fundamental justice although paragraph 204
says, in part,
204. The benefit of the doubt should, however, only be
given when all available evidence has been obtained and
checked and when the examiner is satisfied as to the appli
cant's general credibility.
Finally, it is said that it is a violation of the United
Nations Convention Relating to the Status of Refu
gees defined in subsection 2(1) of the Act and, hence,
of the Act itself, as well as a denial of fundamental
justice to reject real refugees and return them to dan
ger and, it follows, any procedure that tends to that
rejection, including imposition of a burden of proof
on the claimant, itself violates those instruments.
The policy of the Immigration and Refugee Board
cannot, of course, prevail over the express provision
of an Act of Parliament even if one were to conclude
that credible basis hearings were proceedings under
the jurisdiction of that Board. While it is likewise
clear that the United Nations Handbook cannot pre
vail over the Act, the Handbook does contemplate the
reality that not all who claim to be Convention refu
gees really are and recognizes the legitimacy of a
screening process to establish the probability of the
validity of individual claims. It seems to me one can
not be satisfied that evidence is credible or trustwor
thy unless satisfied that it is probably so, not just pos
sibly so.
The applicants make no distinction between first
and second level hearings. At the second level hear
ing, where the issue is whether or not the claimant is,
in fact, a Convention refugee, there is a weighing of
evidence by the Refugee Division and room for bene
fit of the doubt. All the first level panel has to do,
indeed all it is entitled to do, is determine whether
there is any credible evidence upon which the Refu
gee Division, at the second level, might determine the
claimant to be a Convention refugee.'? There is no
weighing of conflicting evidence in that. If there is
some credible evidence, no amount of evidence to the
contrary can alter that fact. There is no room for ben
efit of the doubt. I see no offence to either section 7
of the Charter or paragraph 2(e) of the Bill of Rights
in the requirement of subsection 46(2).
4. Denial of a credible basis
It is argued that a finding that there is no credible
basis for a refugee claim is unconstitutional. Once the
finding is made the adjudicator must proceed to
decide whether to issue a departure notice or make a
deportation order [subsection 46.02(1)] and do one or
the other [section 32]. If a deportation order is made,
the Minister is required to execute it "as soon as rea
sonably practicable" [section 48] subject only to a
72-hour stay on request to permit the person con
cerned to seek leave to apply to this Court for judicial
review [paragraph 49(1 )(b)].
17 Leung v. M.E.L, supra.
The argument is that because a determination that
a claimant has no credible basis for the claim to be a
Convention refugee is a denial of the right to remain
in Canada pending judicial review, a negative finding
is necessarily a denial of the right to a fair hearing in
accordance with the principles of natural justice. This
is not really an attack on the power of the first level
tribunal to find no credible basis; it is an attack on the
potential consequences of such a finding. The adjudi
cator correctly decided that he had no authority to
direct that the applicants be allowed to remain in
Canada pending judicial review. Whether execution
of a deportation order ought to be stayed for that pur
pose is a question for the Court.
The constitutionality of the 72-hour mandatory
stay is one of the issues which remains to be dealt
with in Canadian Council of Churches v. Canada. 18
Even if it had already been found unconstitutional,
that could not taint the legality of any decision or
order in issue here: the finding that there is no credi
ble basis for the claims to be refugees and the making
of departure notices and deportation orders. It could
only affect the execution of the order or the necessity
of complying with the notice. As a matter of fact,
while irrelevant to the issues here, Canada is not now
executing deportation orders to Haiti; it has not done
so at any time material to these proceedings.
I have not been persuaded that there is any merit in
what is relevant here, namely the argument that the
power of the first level tribunal to find that there is no
credible or trustworthy evidence upon which the Ref
ugee Division might find a claimant to be a Conven
tion refugee and the consequent power of the adjudi
cator to order deportation offend either section 7 of
the Charter or paragraph 2(e) of the Bill of Rights.
18 [1990] 2 F.C. 534 (C.A.), at p. 561.
5. Adequacy of judicial review
If the Court concludes that the tribunal finding no
credible basis for a refugee claim made an error in a
finding of fact, paragraph 28(1)(c) of the Federal
Court Act permits this Court to set aside the decision
only if the tribunal (1) based its decision on that find
ing and (2) made the finding in a perverse or capri
cious manner or without regard for the material
before it. Further, if the Court concludes the tribunal
erred in any of the ways contemplated by subsection
28(1), by paragraph 52(c) of the Federal Court Act, it
can only set aside the decision or set it aside and
remit the matter to tribunal for reconsideration with
directions. It cannot make the decision it thinks the
tribunal ought to have made although, from a practi
cal point of view, its directions may be so precise as
to dictate the result of the reconsideration. The appli
cants submit that this is too narrow a basis of judicial
review to satisfy the requirements of fundamental
justice, at least in the case of refugee claimants, and
that what is required is a right to appeal which would
allow the Court to substitute its view of the case for
that of the tribunal if it considers the decision below
to be unreasonable.
As with the constitutionality of the 72-hour statu
tory stay, I fail to see how this submission is relevant
to any issue before the Court in either of the present
section 28 applications. The sufficiency of the provi
sion Parliament has made for their judicial review
was not a matter to be taken into account by the adju
dicator alone or with the Refugee Division member
in making any of the decisions or orders subject of
this review. If it is insufficient that cannot be a basis
for setting any of them aside; it can only be a basis
for excusing from or preventing compliance.
B. The International Law Arguments
I see no need to summarize the international law
arguments. I accept, for purposes of those arguments,
that to return a person to Haiti in the circumstances
that presently exist and have existed at relevant times
would violate Canada's obligations under the Fourth
Geneva Convention, the Second Protocol and a cus
tomary norm of international law prohibiting the for
cible repatriation of foreign nationals who have fled
generalized violence and other threats to their lives
and security arising out of internal armed conflict
within their state of nationality. I also accept, for pur
poses of the arguments, that those international
instruments and laws have the force of domestic law
in Canada and can be enforced in the courts of
Canada at the suit of a private individual. What I can
not accept, however, is that the duty or intention to
execute a deportation order which, if executed, would
breach those laws in any way colours the process,
under the Immigration Act, by which a person from
such a country may be determined not to have a cred
ible basis for a claim to be a Convention refugee or
the making of a deportation order consequent to that
finding.
These issues, like the constitutional sufficiency of
the provision Parliament has made for judicial review
and the 72-hour stay, are not questions with which
the first level tribunal or the adjudicator alone in
making their decisions and orders nor this Court in
reviewing them can be concerned. To say that they
are not relevant to those decisions and orders is not,
of course, to denigrate their importance. It would be a
grave, and I hope justiciable, matter indeed if Canada
were to execute deportation orders in circumstances
which breached obligations under international law
and put the life, liberty or security of persons in peril.
C. The Merits
A Convention refugee is relevantly defined as
... any person who
(a) by reason of a well-founded fear of persecution for rea
sons of race, religion, nationality, membership in a particu
lar social group or political opinion,
(i) is outside the country of his nationality and is unable
or, by reason of that fear, is unwilling to avail himself of
the protection of that country...
but does not include any person to whom the Convention does
not apply pursuant to section E or F of Article 1 thereof, which
sections are set out in the schedule to this Act.
We are not here concerned with race or religion.
It is submitted that all Haitians have a credible
basis for claiming to be Convention refugees because
they are Haitians. The tribunal held
... it would be absurd to accept the proposition of your coun
sel that all Haitians are refugees, since this would offer interna
tional protection to both the victims and the perpetrators of the
crimes, and from whom you are seeking protection.
The applicants say that the tribunal misunderstood
their argument. They did not submit that all Haitians
are refugees but that all Haitians outside Haiti have a
credible basis for claiming to be refugees. They say
further that, as a result of its misapprehension, the tri
bunal addressed the second level question: are the
applicants refugees, rather than the first level ques
tion: is there any credible or trustworthy evidence
upon which they might be found to be refugees?
They also note that the possibility of what was seen
as leading to absurdity is actually preempted by the
Convention refugee definition which excludes per
sons to whom section F of Article l of the Conven
tion applies. Section F provides:
Article I
F. The provisions of this Convention shall not apply to any
person with respect to whom there are serious reasons for con
sidering that:
(a) he has committed a crime against peace, a war crime, or a
crime against humanity, as defined in the international
instruments drawn up to make provision in respect of such
crimes;
(b) he has committed a serious non-political crime outside the
country of refuge prior to his admission to that country as
a refugee;
(c) he has been guilty of acts contrary to the purposes and
principles of the United Nations.
One has only to recall the recent history of Cambo-
dia to recognize that possibility of widespread perse
cution of its general population by a national regime.
With respect, it is not axiomatic that nationals of a
country who have escaped that country may not have
a well founded fear of persecution by reason of their
nationality should they be returned. There is ample
evidence as to conditions in Haiti on the record.
There is evidence as to the treatment of Haitians who
have been forcibly repatriated by the United States.
Its trustworthiness has not been questioned. It is for
the Refugee Determination Division, not the screen
ing hearing, to weigh that evidence and decide
whether it supports the objective element of the
applicants' claim.
In its relatively brief "reasons for decision on cred
ible basis", 19 the tribunal did not refer at all to the
matters which paragraphs (a) and (b) of subsection
46.01(6) expressly required it to consider. While that
is by no means conclusive that the evidence, of which
there was plenty, was not considered, it is somewhat
surprising in the case of Haitian claimants. Given the
tribunal's misstatement of the argument based on
nationality, I think it unsafe to assume that the evi
dence was considered properly.
The social group in which the applicants claim
membership is the poor and disadvantaged people of
Haiti. The tribunal noted that the documentary evi
dence established that the Haitian population is sub
stantially poor and disadvantaged. The applicants did
not address this argument in their memorandum of
points of argument although their counsel did refer to
it in passing in oral argument. If I understand the tri
bunal correctly, I am inclined to agree with it on this
point: there is nothing to distinguish the applicants'
claim to be persecuted by reason of membership in
19 Session of September 6, 1990. Case, p. 150, 1.23 to p.
152, 1.8. These reasons dealt with the merits; the Charter and
Bill of Rights and international law arguments had been dis
missed at an earlier session.
that particular social group from their claim to be per
secuted by reason of Haitian nationality itself.
As to political opinion, the only basis for that
claim would, again, appear to be entirely dependent
on their fear of returning to Haiti because of the treat
ment they might incur. The applicants attested to no
political views or activities or past harassment
because of political opinions. Rather, as stated in
their memorandum, they rely on documentary evi
dence which, they say, "shows that the Government
of Haiti views those who resist return to Haiti as
opposed to the Government and persecutes them for
that reason." This, like the claim based on member
ship in the social group of the poor and disadvan
taged, seems on the evidence to be no more than a
restatement of the claim based on nationality.
The tribunal found significant the fact that the
applicants had applied to Canada for immigrant visas
before leaving Haiti. That may be relevant to a sec
ond level determination weighing the evidence and
deciding whether a person really is outside and
unwilling to return to his or her country of nationality
because of fear of persecution. It does seem to me
that a desire to emigrate and fear of persecution in
one's country can hardly be mutually exclusive. If
one can depart the place where one fears persecution
by lawful emigration, that would seem an eminently
satisfactory resolution. That a person has sought to
emigrate strikes me as a feeble basis for questioning
the credibility of that person's evidence of fear of
persecution at home.
The applicants had a number of other complaints
about the tribunal's reasons which, in view of the dis
position I would make of their applications, need not
be dealt with. In conclusion, I see either no merit or
no relevance in the arguments based on the Charter
and the Bill of Rights and I see no relevance in the
arguments based on international law. I do, however,
find that the first level tribunal did err in approaching
the applicants' claim on the merits as it did.
I would, therefore, allow both section 28 applica
tions. As to file no. A-993-90, I would set aside the
finding, made September 6, 1990, by adjudicator
K. D. Fussey and Refugee Board member R.
Rushowy that there was no credible or trustworthy
evidence upon which the Refugee Division might
find the applicants to be Convention refugees and the
ensuing departure notices given, to the applicants by
adjudicator K. D. Fussey October 1, 1990, and remit
the matter to the tribunal for reconsideration in a
manner not inconsistent with these reasons. As to file
no. A-222-91, I would set aside the deportation
orders dated December 28, 1990, made against the
applicants by adjudicator Lyle Moffatt.
HEALD J.A.: I agree.
STONE 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.