T-3212-90
91-T-26
Marisol Escobar Salinas (Applicant)
v.
The Minister of Employment and Immigration
(Respondent)
INDEXED AS: SALINAS V. CANADA (MINISTER OFEMFLOYMENT
AND IMMIGRATION) (T.D.)
Trial Division, Jerome A.C.J.—Toronto, December
17, 1990; February 12, December 17, 1991; Ottawa,
March 20, 1992.*
Federal Court jurisidiction — Trial Division — Federal
Court Act, s. 18 giving Trial Division jurisdiction to review
Immigration and Refugee Board decision to reconvene refugee
hearing to hear evidence of changes in country of nationality
after hearing concluded — Board's ruling neither decision or
order required to be made on judicial or quasi-judicial basis
within Federal Court Act, s. 28 nor final decision or order
Board mandated to make — Merely procedural decision ena
bling Board to consider substantive issue of refugee status —
Doctrine of merger (right of review of administrative decision
to reopen merged with right of review of judicial or quasi-judi
cial decision to reconvene after full argument) rejected —
Decision not final simply because affects rights of applicant.
Immigration — Practice — Board lacking jurisdiction to
reconvene hearing in absence of specific statutory provision
enabling it to do so — Unfair to permit Board to reconvene
hearing to admit evidence of political change in country of
nationality occurring after hearing — Imposing impossible
onus on applicant, who may have no evidence of persecution
under new regime — No provision for applicant to have hear
ing reconvened if situation worsened — Whether Board would
assume obligation to reconvene in all situations where change
in circumstances and, if so, what changes warranting interven
tion — Conflict with statutory requirements to proceed infor
mally, expeditiously and render decision quickly — Minister's
remedy to invoke s. 69.2.
This was an application to quash a ruling of the Immigration
and Refugee Board, Convention Refugee Determination Divi-
* Editor's Note: This Trial Division decision was reversed
by a judgment of the Federal Court of Appeal reported at
[1992] 3 F.C. 247.
sion, that it had jurisdiction to reconvene the applicant's refu
gee hearing to hear evidence of changes in Panama, the appli
cant's country of nationality, after the hearing had concluded
and to require the Board to render a decision based on the evi
dence before it on November 29, 1989. The applicant claimed
refugee status, stating that she feared persecution by agents of
the Noriega regime. An oral hearing of the Board was con
vened on November 29, 1989 whereat the applicant testified
and her counsel made submissions. The Board reserved its
decision because it was unfamiliar with conditions in Panama
and needed time to review the filed documents. In September
1990 the Board reconvened the hearing to hear evidence relat
ing to intervening changes in Panama, i.e. the removal of
Noriega from power by the American military. Notwithstand
ing the applicant's objection, the Board ruled that it had juris
diction to reconvene the hearing to hear evidence and that the
delay had not prejudiced the applicant's right to a full and
proper hearing. The issues were (1) whether the Federal Court,
Trial Division had jurisdiction in this matter; (2) if so, whether
the Board's ruling is reviewable in light of Immigration Act,
subsection 67(1) (which gives the Refugee Division sole and
exclusive jurisdiction to hear and determine questions of juris
diction in respect of sections 69.1 and 69.2 proceedings); and
(3) whether the Board exceeded its jurisdiction in deciding to
reconvene.
Held, the application should be allowed.
(1) The Federal Court, Trial Division had jurisdiction under
Federal Court Act, section 18 to review the Board's decision.
The Board's ruling was neither a decision or order required to
be made on a judicial or quasi-judicial basis within section 28
(Court of Appeal jurisdiction) nor a final decision or order that
the Board was mandated to make. The question of whether the
Board may reconvene to hear further evidence on change in
conditions in the country of nationality was not a question the
Board had `jurisdiction or powers" to decide. Although the
Board must form an opinion on that question, such opinion has
no legal effect except as a contribution to the determination of
the applicant's refugee claim. The decision to reconvene was
procedural, enabling the Board to consider the substantive
issue of whether the applicant was a Convention refugee. That
the Board allowed submissions on a procedural point, or even
if the Board conducts a "hearing" on the matter does not
change the nature of the decision. A final decision has not been
made and the doctrine of merger, whereby the right of review
of the administrative decision to reopen merges with the right
of review of the judicial or quasi-judicial decision to reconvene
made after hearing full argument, did not apply. The initial
proceeding has not been exhausted and the Board remains
seized as it has not yet rendered a decision on the applicant's
refugee claim. Finally, a decision is not final simply because it
affects the rights of the applicant.
(2) Whether subsection 67(1) ousts the Court's jurisdiction
depends upon whether the Board exceeded or failed to exercise
its jurisdiction by not rendering a decision in an expeditious
manner or violated a principle of natural justice.
(3) The Board does not have jurisdiction to reconvene a
hearing in the absence of a specific statutory provision permit
ting it to do so. If the political situation in a country changes to
the extent that it adversely affects the status of a refugee, the
Minister may make an application to the Board pursuant to
subsection 69.2(1) to determine whether the person has ceased
to be a Convention refugee. By reconvening the hearing to
hear evidence on the impact of the removal of Noriega from
power, the Board imposed an unfair, if not impossible burden
on the applicant as it is unlikely that she will have any direct
evidence supporting a claim to fear of persecution from the
new regime. She may have no knowledge of the impact of
Noriega's removal from power. It seems manifestly unfair to
permit the Board to reconvene a hearing to consider new evi
dence of a change in a country's political regime which
occurred after the initial hearing. The Act does not provide a
mechanism whereby an applicant can have a hearing recon
vened after its conclusion, but before the Board renders its
decision, if the political situation had worsened thus giving
new evidence to support a claim to Convention refugee status.
Similarly, the Minister cannot seek to reconvene a hearing to
present new evidence opposing the applicant's claim. His rem
edy is to invoke subsection 69.2(1) if the Board concludes that
the applicant is a Convention refugee. If the Board can do as it
did herein, does it do so in all similar situations? How would it
determine which changes would warrant such intervention, and
how could proceeding in this manner be reconciled with the
requirement of subsection 68(2) that Boards deal with all pro
ceedings as informally and expeditiously as possible, and that
they render their decision as soon as possible after completion
of the hearing (subsection 69.1(9))?
STATUTES AND REGULATIONS JUDICIALLY
CONS IDERED
Anti-dumping Act, R.S.C. 1970, c. A-15.
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.
Customs Act, R.S.C. 1970, c. C-40.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18, 28, 29.
Immigration Act, R.S.C., 1985, c. I-2, ss. 32.1 (as enacted
by R.S.C., 1985 (4th Supp.), c. 28, s. 28), 46.02(2) (as
enacted idem, s. 14), 67 (as enacted idem, s. 18), 68 (as
enacted idem), 69.1 (as enacted idem), 82.1 (as enacted
idem, s. 19).
Immigration Act, 1976, S.C. 1976-77, c. 52, s. 59.
Immigration Appeal Board Act, S.C. 1966-67, c. 90, ss.
11, 12, 22.
Immigration Appeal Board Act, R.S.C. 1970, c. I-3, s. 11
(as am. by S.C. 1973-74, c. 27, s. 5).
Inquiries Act, R.S.C., 1985, c. I-11, s. 3.
CASES JUDICIALLY CONSIDERED
APPLIED:
Attorney General of Canada (The) v. Cylien, [1973] F.C.
1166; (1973), 43 D.L.R. (3d) 590 (C.A.); Anti-dumping
Act (In re) and in re Danmor Shoe Co. Ltd., [1974] 1 F.C.
22; (1974), 1 N.R. 422 (C.A.); Canada (Attorney Gen
eral) v. S.F. Enterprises Inc. (1990), 107 N.R. 100
(F.C.A.); Lutes v. Commissioner of the Royal Canadian
Mounted Police, [1985] 2 F.C. 326; (1985), 61 N.R. 1
(C.A.); Longia v. Canada (Minister of Employment and
Immigration), [1990] 3 F.C. 288; (1990), 44 Admin. L.R.
264; 10 Imm. L.R. (2d) 312; 114 N.R. 280 (C.A.).
DISTINGUISHED:
Canadian Union of Public Employees, Local 963 v. New
Brunswick Liquor Corporation, [1979] 2 S.C.R. 227;
(1979), 25 N.B.R. (2d) 237; 97 D.L.R. (3d) 417; 51
A.P.R. 237; 79 CLLC 14,209; 26 N.R. 341.
CONSIDERED:
Pringle et al. v. Fraser, [1972] S.C.R. 821; (1972), 26
D.L.R. (3d) 28; Law v. Solicitor General of Canada,
[1985] 1 F.C. 62; (1984), 11 D.L.R. (4th) 608; 57 N.R. 45
(C.A.); Chan v. Canada (Min. of Employment & Immigra
tion) (1987), 2 Imm. L.R. (2d) 99 (F.C.T.D.).
REFERRED TO:
Cynamid Agricultural de Puerto Rico, Inc. v. Commis
sioner of Patents et al. (1983), 74 C.P.R. (2d) 133
(F.C.T.D.).
APPLICATION to quash Immigration and Refugee
Board ruling that it had jurisdiction to reconvene a
refugee hearing to hear evidence of changes that had
taken place in the country of nationality after the con
clusion of the hearing. Application allowed.
COUNSEL:
Brenda Wemp for applicant.
Bonnie J. Boucher for respondent.
SOLICITORS:
Brenda J. Wemp, Toronto, for applicant.
Deputy Attorney General of Canada for respon
dent.
The following are the reasons for order rendered in
English by
JEROME A.C.J.: With appropriate leave, the appli
cant seeks an order: to quash a ruling of the Immigra
tion and Refugee Board, Convention Refugee Deter
mination Division (the "Board"), that it had
jurisdiction to reconvene the applicant's refugee
hearing in order to hear evidence of changes in coun
try conditions occurring after the hearing concluded
on November 29, 1989; to require the Board to
render a decision based on the evidence before it on
November 29, 1989; to prohibit the Board from hear
ing and considering evidence of changes in country
conditions occurring after November 29, 1989; and,
for a stay of the proceedings before the Board. These
matters were heard at Toronto, Ontario on December
17, 1990 and adjourned for further argument to Feb-
ruary 12, 1991. At the conclusion of argument on
February 12, 1991, I reserved judgment and ordered
that further proceedings before the Board be stayed
until the decision in this matter had been rendered.
On December 17, 1991, in Toronto I gave oral rea
sons for order in this matter and indicated that these
written reasons would follow.
The applicant, a citizen of Panama, came to
Canada on July 16, 1989. At an inquiry under the
Immigration Act 1976, S.C. 1976-77, c. 52 (now
R.S.C., 1985, c. I-2, as amended) where it was
decided that she was inadmissible to Canada, the
applicant claimed refugee status stating that she had
fled Panama due to an alleged fear of persecution by
agents of the Noriega regime. It was determined that
there was a credible basis for her claim and a condi-
tional exclusion order was issued pursuant to section
32.1 [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s.
28] of the Immigration Act. Her refugee claim was
then referred to the Immigration and Refugee Board
(the "Board") pursuant to subsection 46.02(2) [as
enacted idem, s. 14] and an oral hearing in accor
dance with section 69.1 [as enacted idem, s. 18] was
convened before the Board on November 29, 1989 to
consider the refugee claim. After hearing the appli
cant and the submissions of her counsel and the Refu
gee Hearing Officer, the Board reserved its decision.
The presiding member indicated that because the
Board was not familiar with conditions in Panama,
the applicant's country of nationality, time to review
and study the filed documentation was required.
By letter dated April 26, 1990,' the applicant was
advised that the presiding member had directed the
Registrar to reconvene the hearing for the purpose of
hearing evidence relating to changes in the conditions
in Panama which had occurred since November 29,
1989 and before a decision had been reached by the
Board. These changes arose when the United States
sent military force into Panama and removed Noriega
from power.
The parties agreed to a rehearing date of Septem-
ber 10, 1990 and a notice of hearing dated June 15,
1990 was sent to the applicant. At the outset of the
hearing the presiding member stated:
This is a resumption of a hearing into the claim of Marisol Elo-
isa Escobar Salinas, to be a Convention refugee. This hearing
opened on November 29, 1989, and is resumed today to hear
new evidence .. .. Ms. Escobar, before this panel reach [sic]
the final decision on your claim, a change has occurred in your
country of nationality. This panel is here today to receive evi
dence on the situation in your country of nationality, and to
hear how the new political condition in your country relate
1 See Appendix "A" to the affidavit of Marisol Escobar Sali-
nas sworn December 5, 1990.
[sic] to your fear of persecution, should you be returned to
Panama. 2
Counsel for the applicant announced her intention
to argue that the Board should not hear any new evi
dence. After hearing counsel's submission and after
providing the Refugee Hearing Officer with an
opportunity to comment, the Board ruled that it had
jurisdiction to reconvene the hearing to hear new evi
dence and further ruled that the delay had not limited
the applicant's right to a full and proper hearing (the
"ruling"). An adjournment, requested by counsel for
the applicant, was granted by the Board to December
21, 1990.
By motion dated December 5, 1990, the applicant
applied for an order to quash the Board's ruling, to
require the Board to render a decision based on the
evidence before it on November 29, 1989, and to stay
the resumption of the reconvened hearing until such
time as the Court renders its decision on the applica
tion. By motion dated February 6, 1991 (91-T-26) the
applicant also requested leave pursuant to section
82.1 [as enacted idem, s. 19] of the Immigration Act
[R.S.C., 1985, c. F-7] to commence a proceeding
under section 18 of the Federal Court Act [R.S.C.,
1985, c. F-7] for an order to prohibit the Board from
hearing and considering evidence of changes in coun
try conditions which occurred after the hearing was
concluded on November 29, 1989 and pursuant to
section 82.1(6) of the Immigration Act for an exten
sion of time to file the application for leave. Leave
was granted as requested.
The applicant submits that the Board has no juris
diction to reconvene, on its own motion, a hearing
which has been concluded, for the purpose of hearing
evidence of changes in country conditions and that, if
2 See transcript of the September 10, 1990 hearing before
the Immigration and Refugee Board, attached as Exhibit "A"
to the affidavit of Neelam Jolly, Counsel, Civil Litigation,
Department of Justice sworn December 13, 1990; and see also
the recount of the hearing set out in the affidavit of Marisol
Escobar Salinas sworn December 5, 1990.
the Board has such jurisdiction, it is prevented from
doing so in this case due to delay. The applicant sub
mits that there is a serious issue to be tried, the bal
ance of convenience lies in favour of staying the
hearing, and irreparable harm would be caused to the
applicant if the stay were not granted. In her affidavit
dated December 5, 1990, the applicant swears that
"this change may prejudice me in the continued pres
entation of my refugee claim" and that the delay in
receiving a decision had caused her anxiety and inse
curity.
In order to dispose of this application three issues
must be resolved:
1. Does the Federal Court, Trial Division, have juris
diction in this matter?
2. If this Court has jurisdiction to review this matter,
is the Board's ruling reviewable in the face of sub
section 67(1) of the Immigration Act?
3. Did the Board exceed its jurisdiction or otherwise
err in law in making the decision to reconvene in this
instance; and should orders of certiorari, mandamus
and prohibition lie in this instance?
The statutory provisions relevant to this matter are
sections 18, 28 and 29 of the Federal Court Act, and
sections 67 [as am. idem, s. 18] and 68 [as am. idem]
and subsections 69.1(5), 69.1(9) and 69.2(1) of the
Immigration Act:
Federal Court Act
18. The Trial Division has exclusive original jurisdiction
(a) to issue an injunction, writ of certiorari, writ of prohibi
tion, writ of mandamus or writ of quo warranto, or grant
declaratory relief, against any federal board, commission or
other tribunal; and
(b) to hear and determine any application or other proceed
ing for relief in the nature of relief contemplated by para
graph (a), including any proceeding brought against the
Attorney General of Canada, to obtain relief against a fed
eral board, commission or other tribunal.
28. (1) Notwithstanding section 18 or the provisions of any
other Act, the Court of Appeal has jurisdiction to hear and
determine an application to review and set aside a decision or
order, other than a decision or order of an administrative
nature not required by law to be made on a judicial or quasi-
judicial basis, made by or in the course of proceedings before a
federal board, commission or other tribunal, on the ground that
the board, commission or tribunal
(a) failed to observe a principle of natural justice or other
wise acted beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or
not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of
fact that it made in a perverse or capricious manner or with
out regard for the material before it.
(2) Any application under subsection (1) may be made by
the Attorney General of Canada or any party directly affected
by the decision or order by filing a notice of the application in
the Court within ten days from the time the decision or order
was first communicated to the office of the Deputy Attorney
General of Canada or to that party by the board, commission or
other tribunal, or within such further time as the Court of
Appeal or a judge thereof may, either before or after the expi
ration of those ten days, fix or allow.
(3) Where the Court of Appeal has jurisdiction under this
section to hear and determine an application to review and set
aside a decision or order, the Trial Division has no jurisdiction
to entertain any proceeding in respect of that decision or order.
(4) A federal board, commission or other tribunal to which
subsection (1) applies may at any stage of its proceedings refer
any question or issue of law, of jurisdiction or of practice and
procedure to the Court of Appeal for hearing and determina
tion.
(5) An application or reference to the Court of Appeal made
under this section shall be heard and determined without delay
and in a summary way.
(6) Notwithstanding subsection (1), no proceeding shall be
taken thereunder in respect of a decision or order of the Gover
nor in Council, the Treasury Board, a superior court or the
Pension Appeals Board or in respect of a proceeding for a ser
vice offence under the National Defence Act.
29. Notwithstanding sections 18 and 28, where provision is
expressly made by an Act of Parliament for an appeal as such
to the Federal Court, to the Supreme Court, to the Governor in
Council or to the Treasury Board from a decision or order of a
federal board, commission or other tribunal made by or in the
course of proceedings before that board, commission or tribu
nal, that decision or order is not, to the extent that it may be so
appealed, subject to review or to be restrained, prohibited,
removed, set aside or otherwise dealt with, except to the extent
and in the manner provided for in that Act.
Immigration Act
67. (1) 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 tech
nical 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, sub
ject to subsection (5), of any other generally recognized facts
and any information or opinion that is within its specialized
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 Min
ister, 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... .
(5) At the hearing into a claim, the Refugee Division
(a) shall afford the claimant a reasonable opportunity to pre
sent evidence, cross-examine witnesses and make represen
tations; and
(b) shall afford the Minister a reasonable opportunity to pre
sent evidence and, if the Minister notifies the Refugee Divi
sion that the Minister is of the opinion that matters involv
ing 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.
(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.
69.2 (1) The Minister may make an application to the Refu
gee Division for a determination whether any person who was
determined under this Act or the regulations to be a Conven
tion refugee has ceased to be a Convention refugee.
Does the Federal Court, Trial Division have jurisdic
tion in this matter?
At the hearing on December 17, 1990, the respon
dent argued that the Federal Court, Trial Division, did
not have jurisdiction in this matter and supplemen
tary memoranda of fact and law were filed by the
parties.
APPLICANT'S SUBMISSIONS
The applicant submits that the Trial Division has
jurisdiction to review the Board's decision and to
grant the relief sought in that the Board's decision to
reconvene was a procedural decision within the pur
ported exercise of the Board's powers under the
Immigration Act. The Board both refused to perform
its statutory duty under subsection 69.1(9) to render
its decision as soon as possible after the hearing had
been completed and, on its own initiative, asserted a
jurisdiction which it does not possess. Following the
reasoning in Attorney General of Canada (The) v.
Cylien, [1973] F.C. 1166 (C.A.), the Federal Court of
Appeal does not have jurisdiction. Furthermore, the
Board's ruling, which is in the nature of an interlocu
tory decision as to procedure or as to the nature of its
powers, does not constitute a "decision or order"
within the context of subsection 28(1) of the Federal
Court Act. Finally, although section 29 would pre
clude a section 18 or section 28 review of the Board's
final decision on the applicant's refugee claim, it
does not, at this stage, confer a right to seek review of
the Board's decision in the Federal Court of Appeal
and does not prevent the applicant from seeking relief
pursuant to section 18.
RESPONDENT'S SUBMISSIONS
The respondent agrees that the Board's initial
decision on April 26, 1990 to notify the applicant that
her hearing was to be reopened on the motion of the
Board was an administrative decision made without a
hearing. However, the right to have the decision of
April 26, 1990 reviewed under section 18 of the Fed
eral Court Act "merged" with any right of review
arising from the decision to reconvene rendered by
the Board on September 10, 1990 after hearing full
argument on the question on a judicial or quasi-judi
cial basis. The decision to reconvene is, therefore, a
"final" decision in that the Board's jurisdiction rela
tive to the issue to which the decision relates was
exhausted, the impugned decision directly and indi
rectly affects the rights and obligations of the appli
cant, and it is binding on the parties. As well, the
decision would be irreversible once the hearing
reopened and any delay in seeking judicial review
would render nugatory any available remedy. The
respondent also submits that the Board does not have
independent statutory authority to make an interlocu
tory decision on jurisdiction and the decision is,
therefore, properly reviewable by the Federal Court
of Appeal under section 28 of the Federal Court Act.
Furthermore, as the ongoing proceeding is judicial or
quasi-judicial in nature, the decision at issue is prop
erly reviewable under section 28 and, in accordance
with subsection 28(3), the Trial Division does not
have jurisdiction to consider this matter.
ANALYSIS
The Federal Court of Appeal has considered this
issue in the context of somewhat similar circum
stances on two previous occasions. In Attorney Gen
eral of Canada (The) v. Cylien, supra, the Federal
Court of Appeal was asked to review an Immigration
Appeal Board's order that the record of inquiry lead
ing to a deportation order be transmitted to the Board
and to determine whether the Board's decision was a
"decision or order" within the meaning of section 28
or whether the remedy was under section 18 of the
Federal Court Act. In that case the Board determined
that, when considering whether an appeal from a
deportation order should be allowed to proceed under
section 11 of the Immigration Appeal Board Act,
R.S.C. 1970, c. I-3, as amended by S.C. 1973-74, c.
27, s. 5, 3 it could take into account not only the "dec-
laration" required by subsection 11(2) but also the
record of inquiry before the Special Inquiry Officer
who made the deportation order. After an adjourn
ment to consider the suggestion of counsel for the
Minister that the Board was required under subsec
tion 11(3) to decide whether the appeal should pro
3 Section 11 of the Immigration Appeal Board Act as amen
ded provides:
11. (1) Subject to subsections (2) and (3), a person against
whom an order of deportation is made under the Immigration
Act may appeal to the Board on any ground of appeal that
involves a question of law or fact or mixed law and fact, if, at
the time that the order of deportation is made against him, he is
(c) a person who claims he is a refugee protected by the
Convention; or
(2) Where an appeal is made to the Board pursuant to sub
section (1) and the right of appeal is based on a claim descri
bed in paragraph (1)(c) or (d), the notice of appeal to the Board
shall contain or be accompanied by a declaration under oath
setting out
(a) the nature of the claim;
(b) a statement in reasonable detail of the facts on which
the claim is based;
(c) a summary in reasonable detail of the information and
evidence intended to be offered in support of the claim
upon the hearing of the appeal; and
(d) such other representations as the appellant deems rele
vant to the claim.
(3) Notwithstanding any provision of this Act, where the
Board receives a notice of appeal and the appeal is based on a
claim described in paragraph (1)(c) or (d), a quorum of the
Board shall forthwith consider the declaration referred to in
subsection (2) and, if on the basis of such consideration the
Board is of the opinion that there are reasonable grounds to
believe that the claim could, upon the hearing of the appeal, be
established, it shall allow the appeal to proceed, and in any
other case it shall refuse to allow the appeal to proceed and
shall thereupon direct that the order of deportation be executed
as soon as practicable.
ceed simply on the basis of the respondent's declara
tion, the Board "decided" to reject counsel's
suggestions and confirmed its initial order that the
record of inquiry be produced.
Jackett C.J. determined (at page 1174) that "what
the Board did, by the reasons delivered on October
16, properly regarded" constituted either or both a
refusal to perform its duty or a wrongful assertion of
jurisdiction.
Accordingly, he stated [at page 1175] that "it is
clearly a case where mandamus or prohibition or both
would lie to determine the exact nature of the
Board's duty in the circumstances unless such rem
edy is taken away by subsection 28(3) [of the Federal
Court Act]". He found [at page 1177], however, that
"the Board's conclusion as to the nature of its statu
tory duty under section 11(3) is not a decision made
by it in the exercise of its `jurisdiction or powers' to
make decisions and is not, therefore, a `decision' that
this Court has jurisdiction to set aside under section
28(1) of the Federal Court Act." He reasoned (at
page 1176):
This is a question of law that the Board has no `jurisdiction or
powers" to decide. It must, of course, form an opinion on that
question but that opinion has no statutory effect. (The statute
does not, as it might have done, confer on the Board a jurisdic
tion to determine its own jurisdiction).
There is a clear difference between a "decision" by the
Board of something that it has "jurisdiction or powers" to
decide and a decision by it as to the view as to the nature of its
own powers upon which it is going to act. Once the Board
decides something that it has "jurisdiction or powers" to decide
in a particular case, that decision has legal effect and the
Board's powers with regard to that case are spent. When, how
ever, the Board takes a position with regard to the nature of its
powers upon which it intends to act, that "decision" has no
legal effect. In such a case, nothing has been decided as a mat
ter of law. The Board itself, whether differently constituted or
not, in the very case in which the position was taken, can
change its view before it deals with the case and, in fact, pro
ceed on the basis of the changed view.
In Anti-dumping Act (In re) and in re Danmor Shoe
Co. Ltd., [1974] 1 F.C. 22, the Federal Court of
Appeal held that a Tariff Board declaration that it did
not have jurisdiction to consider the validity of regu
lations was not a proper subject-matter for an appli
cation under section 28 of the Federal Court Act. The
ruling was made in the course of a hearing before the
Tariff Board to determine the "value for duty" of
imported goods under the Customs Act, R.S.C. 1970,
c. C-40 and the "normal value" of imported goods
under the Anti-dumping Act, R.S.C. 1970, c. A-15.
The Board refused to review regulations made by the
Minister declaring that it did not have jurisdiction to
deal with the validity of the "prescriptions". Jackett
C.J., consistent with his reasoning in Cylien, held that
the Court of Appeal did not have jurisdiction under
subsection 28(1) to set aside the Tariff Board's decla
ration [at pages 28-29]:
What we are concerned with here is something different [to
an exercise or purported exercise of "jurisdiction or powers"
conferred by an Act of Parliament]. The Tariff Board has juris
diction or powers to decide the appeals against "value for
duty" and to decide the appeals against "normal value". It has
not, however, as yet, delivered any decision disposing of any
of those appeals. The problem that was raised at a preliminary
stage before the Tariff Board, and in respect of which the
Board has made a preliminary "declaration", is whether, in
deciding value for duty or normal value, it is authorized to
hold that the "prescriptions" are inoperative because they are
invalid. Whether or not it is so authorized is a question of law
that the Board has no jurisdiction or power to decide as a ques
tion of law independently of the appeals that it has jurisdiction
to decide. The Board must, of course, when it comes to dispose
of the appeals, take a position on that question that will be
reflected in its decision disposing of the appeals; but, in my
view, any declaration by the Board on the question prior to,
and therefore apart from, the actual disposition of an appeal
has no legal effect. (The Statutes do not, as they might have
done, confer on the Board jurisdiction to determine its own
jurisdiction).
Recently, in Canada (Attorney General) v. S.F.
Enterprises Inc. (1990), 107 N.R. 100 (F.C.A.), the
Federal Court of Appeal held that the Tax Court of
Canada's decision that two shareholders of a corpo
rate taxpayer had standing to appeal a tax assessment
was a preliminary ruling, clearly interlocutory, and,
accordingly, not a "final" decision subject to review
under section 28 of the Federal Court Act.
MacGuigan J.A. commented (at pages 102-103):
At first blush the applicant would appear to be helped by
Lutes v. Commissioner of the Royal Canadian Mounted
Police, [1985] 2 F.C. 326; 61 N.R. 1 (F.C.A.), where this Court
reviewed and set aside a decision by the Commissioner of the
R.C.M.P. to order a new review of a recommendation for dis
charge. However, a close reading of the reasons for judgment
of Heald, J.A., on this point makes clear that what was decisive
was the fact that the Commissioner had fully exercised his law
ful powers, and that what followed would be in effect a new
review. Heald, J.A., wrote (at 340):
"Applying the Danmor test, can it be said that the Commis
sioner's 'decision' herein is a decision which he has been
expressly mandated to make? I conclude that this question
must be answered affirmatively.
Clearly, where legislated powers have been fully utilized, there
is no further decision to be made. Of course, the matter might
ultimately return to the Commissioner again as the final stage
of the review he ordered, but that would be in a new proceed
ing. The initial proceeding was exhausted by the Commission
er's decision.
On this basis, he concluded (at page 103) that, "[i]n
the case at bar, the decision of the Tax Court judge
that the two individual respondents have standing is
merely a preliminary ruling enabling the Court to
proceed to consider the substantive issue relating to
the appeal against the tax assessment".
Here, as in Cylien and Danmor Shoe Co., the ques
tion as to whether the Board may reconvene to hear
further evidence on change in conditions in the coun
try of nationality is not a question the Board has
"jurisdiction or powers" to decide. Although the
Board must form an opinion on that question, such
opinion has no legal effect except as a contribution to
the determination of the applicant's refugee claim.
The Board's decision to reconvene is procedural.
The respondent argues that because it was followed
by a hearing on the issue of the Board's jurisdiction
to reconvene, the decision was then converted into a
decision made on a judicial or quasi-judicial basis. I
cannot accept this proposition. It is questionable
whether what occurred on September 10, 1990 con
stituted a "hearing" of the issue. In any event, the fact
that a Board allows submissions on a procedural
point, or even if the Board goes so far as to conduct a
"hearing" on the matter, if it so chooses, does not
change the nature of the decision before it. Accord
ingly, I reject the respondent's submission that the
right to review the administrative decision of April
26, 1990 "merged" with the quasi-judicial decision to
reconvene made on September 10, 1990.
Counsel for the respondent relies on my decision
in Chan v. Canada (Min. of Employment & Immigra
tion) (1987), 2 Imm. L.R. (2d) 99 (F.C.T.D.). In
Chan, the Immigration Appeal Board had dismissed
the applicant's appeal of an exclusion order. An
application for leave to appeal to the Federal Court of
Appeal had been dismissed and the applicant was
seeking to quash the report upon which the exclusion
order was based. Based on the following reasoning in
Cynamid Agricultural de Puerto Rico, Inc. v. Com
missioner of Patents et al. (1983), 74 C.P.R. (2d) 133
(F.C.T.D.), at page 136, I held (at page 108) that once
the Immigration Appeal Board had reached a final
decision as to its jurisdiction, its ruling on the validity
of the report must be taken to have merged in the
final decision.
Here, a final decision has not been made and the
doctrine of "merger" simply does not apply. As in
Lutes [Lutes v. Commissioner of the Royal Canadian
Mounted Police, [1985] 2 F.C. 326 (C.A.)], the initial
proceeding has not been exhausted and the Board
remains functus officio in that it has not as yet ren
dered a decision on the applicant's refugee claim.* I
conclude, as did MacGuigan J.A. in S.F. Enterprises
Inc., that the Board's ruling in this instance is merely
a procedural ruling enabling the Board to continue to
* Editor's note: As to whether the Refugee Division was
functus officio herein, see the reasons for judgment of the
Federal Court of Appeal, [1992] 3 F.C. 219, at p. 253.
consider the substantive issue before it—the question
of whether the applicant is a Convention refugee.
Although the Board's decision perhaps cannot be
considered to be "preliminary" in the sense that it
was not made before the Board embarked on a con
sideration of the applicant's refugee claim, it is nev
ertheless "preliminary" to the disposition of the
actual question before the Board, that is, whether or
not the claimant is a refugee. In this sense, the
Board's decision is "incidental to the conduct of the
hearing" and as discussed, the decision does not pur
port to have legal effect. Finally, I reject the respon
dent's proposition that the decision is a final decision
or order simply because it affects the rights of the
applicant. Every decision or ruling, whether it be pro
cedural, interlocutory or final, will impact to at least
some extent on the rights of any party affected by the
decision.
In my opinion the Board's ruling, in this instance,
does not constitute a decision or order that is required
to be made on a judicial or quasi-judicial basis and it
is not a final decision or order that the Board is man
dated to make. Accordingly, it is reviewable under
section 18 of the Federal Court Act.
If this Court has jurisdiction to review this matter, is
the impugned decision reviewable in the face of the
privative clause contained in subsection 67(1) of the
Immigration Act?
In the alternative, the respondent submits that the
"sole and exclusive jurisdiction" clause found at sub
section 67(1) of the Immigration Act prevents any
other Court or tribunal from reviewing the decision
unless the Board had exceeded its jurisdiction,
declined to exercise its jurisdiction, breached the
rules of natural justice or procedural fairness, or vio
lated the applicant's rights under section 7 of the
Charter [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]] in making the decision.
The respondent submits that the phrase, "sole and
exclusive jurisdiction to hear and determine all ques
tions of law and fact, including questions of jurisdic
tion", has been held to exclude review by any Court
or tribunal with respect to matters so confined exclu
sively to the Board.
In Pringle et al. v. Fraser, [1972] S.C.R. 821, the
Court considered the single question of the jurisdic
tion of the Supreme Court of Ontario to entertain cer-
tiorari proceedings to quash a deportation order
made under the Immigration Act in the light of the
scheme set out in sections 11, 12, and 22 of the Immi
gration Appeal Board Act, S.C. 1966-67, c. 90
(R.S.C. 1970, c. I-3). 4 Laskin J. (as he then was), for
the Court, noted that Parliament's authority to deny
or to remove certiorari jurisdiction from provincial
superior courts over deportation orders was not chal
lenged and he held (at page 826):
I am satisfied that in the context of the overall scheme for
the administration of immigration policy the words in s. 22
("sole and exclusive jurisdiction to hear and determine all
questions of fact or law, including questions of jurisdiction")
are adequate not only to endow the Board with the stated
authority but to exclude any other court or tribunal from enter
4 Ss. 11, 12 and 22 read as follows:
11. A person against whom an order of deportation has been
made under the Immigration Act may appeal to the Board on
any ground of appeal that involves a question of law or fact or
mixed law and fact.
12. The Minister may appeal to the Board on any ground of
appeal that involves a question of law or fact, or mixed law
and fact, from a decision by a Special Inquiry Officer that a
person in respect of whom a hearing has been held is not
within a prohibited class or is not subject to deportation.
22. Subject to this Act and except as provided in the Immi
gration Act, the Board has sole and exclusive jurisdiction to
hear and determine all questions of fact or law, including ques
tions of jurisdiction, that may arise in relation to the making of
an order of deportation or the making of an application for the
admission to Canada of a relative pursuant to regulations made
under the Immigration Act.
taining any type of proceedings, be they by way of certiorari
or otherwise, in relation to the matters so confided exclusively
to the Board. [My emphasis.]
However, it should be noted that Laskin J. had not
considered the effect of the newly proclaimed Fed
eral Court Act. He stated (at page 824) that "this
Court is not concerned in this case with the effect of
the Federal Court Act, 1970-71-72 (Can.), c. 1,
which came into force on June 1, 1971".
Nevertheless, in Law v. Solicitor General of
Canada, [1985] 1 F.C. 62 (C.A.), the Court consid
ered the effect of section 59 of the Immigration Act
1976, S.C. 1976-77, c. 52, which provided that the
Immigration Appeal Board had "sole and exclusive
jurisdiction to hear and determine all questions of law
and fact, including questions of jurisdiction, that may
arise in relation to the making of a removal order".
Hugessen J.A., in a minority concurring opinion,
stated (at page 66):
While it might be tempting to say that the Board's exclusive
jurisdiction cannot extend to questions concerning the limits of
its own jurisdiction, since that is solely the attribute of a supe
rior court, to do so would be to fly in the face of the decision
of the Supreme Court in Pringle et al. v. Fraser, [1972] S.C.R.
821.
In Chan v. Canada (Min. of Employment & Immi
gration), I considered the decisions in Pringle v. Fra-
ser and Law and concluded that [at page 107] "even
if the board had not reached a decision on these ques
tions [concerning the validity of a report upon which
an exclusion order was based], I would be without
jurisdiction to pursue it by means of judicial review"
in the light of the Immigration Appeal Board's deci
sion to dismiss the applicant's appeal of the exclusion
order and the privative clause set out in section 59 of
the Immigration Act.
However, if as alleged by the applicant, the Board
has exceeded its jurisdiction by reconvening the hear
ing or failed to exercise its jurisdiction by not render
ing a decision in an expeditious manner following the
hearing on November 29, 1989, then clearly the priv-
ative clause will not prevent a review of the Board's
ruling. I note that in Cylien and Danmor Shoe Co. a
similar "privative provision" set out in section 22 of
the Immigration Appeal Board Act did not preclude a
section 18 review of the "decisions" dealt with in
those cases. Furthermore, unlike the situation in
Canadian Union of Public Employees, Local 963 v.
New Brunswick Liquor Corporation, [1979] 2 S.C.R.
227 [at page 236], the question here does not fall
"logically at the heart of the specialized jurisdiction
confided to the Board". As the ruling involves a
purely procedural matter, not necessarily dependent
upon the sensitivity, accumulated experience, and
broad powers of the Board to conduct proceedings in
a unique area of the law, special deference need not
be given to the Board's decision on this matter.
Accordingly, whether subsection 67(1) will be effec
tive to oust this Court's review will ultimately
depend upon whether the Board in making its ruling
exceeded or failed to exercise its jurisdiction or vio
lated a principle of natural justice as alleged by the
applicant.
Did the Board exceed its jurisdiction or otherwise err
in making the impugned decision to reconvene in this
instance and should orders of certiorari, mandamus
and prohibition lie?
APPLICANT'S SUBMISSIONS
The applicant submits that the Board, a creature of
statute, has only those powers specified in the Immi
gration Act, specifically sections 67, 69.1 and 69.2
and that it has no inherent jurisdiction to deal with
refugee claims. The Board failed to comply with sub
section 69.1(9) which requires the Board to render its
decision as soon as possible after completion of the
hearing. On November 29, 1989, the hearing was
"completed" in that all the evidence had been
presented, submissions made, and it had been "con-
cluded" by the presiding member. The Board's
refusal to perform its statutory duty under subsection
69.1(9) constitutes a jurisdictional error. The refugee
determination process is not an ongoing process and,
in the light of the Board's adjudicative role in this
process, the determination must be made "as soon as
possible after completion of the hearing".
The applicant denies that the Board has statutory
authority to reconvene, on its own initiative, a com
pleted hearing in order to hear new evidence. Subsec
tion 68(4), which allows a Board to take notice of
generally recognized facts, information or opinion
within its specialized knowledge, does not confer on
the Board a continuing jurisdiction to monitor devel
opments in the applicant's country of nationality, par
ticularly after a hearing has been completed.
Although paragraph 67(2)(d) allows the Board to "do
any other thing necessary to provide a full and proper
hearing", it does not apply once a proceeding
described in section 69.1 has been completed. An
implied jurisdiction to reconvene a concluded hearing
must be narrowly construed in a manner consistent
with the principles of natural justice and the Cana-
dian Charter of Rights and Freedoms. Since refugee
law is based on humanitarian principles and is benefi
cial in nature, any interpretation of the Board's juris
diction must be consistent with ensuring fairness to
the refugee claimant.
The applicant submits that the Minister's right to
apply to the Board under section 69.2 to determine
whether a person has ceased to be a Convention refu
gee, on the basis that there have been changes of cir
cumstances in the country of feared persecution, sup
ports her position that the Board has no jurisdiction
to reconvene a completed hearing. She notes that the
refugee claimant has no corresponding right once a
decision is rendered and furthermore, by reconvening
the hearing instead of bringing an application under
subsection 69.2(1), the applicant is denied procedural
fairness. Under subsection 69.2(1) the Minister bears
an onus of establishing the existence of changes of
such a fundamental nature that the reasons for the
fear of persecution have ceased, whereas when the
hearing is merely reconvened to hear new evidence
the burden of proof remains on the applicant to estab
lish her claim.
RESPONDENT'S SUBMISSIONS
The respondent submits that the decision to recon
vene is not reviewable in that the Board did not
exceed its jurisdiction or otherwise err in making its
decision to reconvene the hearing. The Board's man
date under the Immigration Act is to determine
whether the applicant is a Convention refugee. Until
a final decision has been rendered on that specific
question, the Board continues to be seized of the
claim and has the implicit and discretionary power to
reconvene a hearing after the hearing has been con
cluded. Each member of the Refugee Division has all
the powers and authority of a commissioner
appointed under the Inquiries Act, R.S.C., 1985,
c. I-11, section 3, to summon and require witnesses to
give evidence, orally or in writing, and to produce
documents and things deemed requisite to the "full
examination of the matters in which they are
appointed to examine". In addition, specifically for
the purposes of a hearing, the Immigration Act, sub
section 67(2) gives the Board the power to do any
thing necessary to provide a full and proper hearing
and the power to require attendance and testimony
from a person with respect to all matters within that
person's knowledge relative to the subject-matter of
the hearing.
Furthermore, the Board is authorized under sub
sections 68(4) and (5), in any proceeding before it, to
take notice of any generally recognized facts, infor
mation or opinion within its specialized knowledge,
so long as it notifies the Minister and the applicant of
its intent to do so and affords a reasonable opportu
nity to make representations with respect thereto.
Therefore, if the information sought by the Board is
relevant to the determination that it is statutorily
mandated to make and the applicant has been given
an opportunity to adduce any evidence relevant to the
Board's concerns, its decision to resume the hearing
is within its jurisdiction and does not breach the rules
of natural justice. The respondent submits that in
order to provide the applicant with a full and proper
hearing, the Board may request the Refugee Hearing
Officer to make submissions on the issue of changed
circumstances in the applicant's country of national
ity even if the applicant chooses not to address the
Board's concerns.
Counsel argues, therefore, that the Board did not
exceed its jurisdiction in that it did not make its deci
sion in bad faith or by misinterpreting its jurisdiction
under the Immigration Act. The Board did not decline
to exercise jurisdiction, breach the rules of natural
justice or violate the applicant's rights under section
7 of the Charter in making the decision. There is no
evidence that the Board exercised its discretion to
reconvene the hearing arbitrarily, illegally or in a
manner which was not bona fide or based on irrele
vant considerations. The consequences of political
change in a refugee claimant's country of nationality
is not only relevant but is precisely the question that
the Board is required by statute to determine relative
to the individual claimant.
ANALYSIS
In the absence of any specific statutory provision
permitting the Board to reconvene a hearing, I am not
prepared to find that it has the authority to do so, par
ticularly in the circumstances of this case. If the polit
ical climate in a country changes to the extent that it
adversely affects the status of a refugee, the Minister
may make an application to the Board pursuant to
subsection 69.2(1) of the Immigration Act to deter
mine whether the person has ceased to be a Conven
tion refugee. Presumably, the Minister would only
seek such a determination after monitoring the
effects of any political changes in the subject country.
Here, the Board has taken it upon itself to recon
vene the applicant's hearing to hear evidence on the
impact of the removal of Noriega from power in Pan-
ama. At the outset of the hearing the presiding
member stated the purpose as follows:
This panel is here today to receive evidence on the situation in
your country of nationality, and to hear how the new political
condition in your country relate [sic] to your fear of persecu
tion, should you be returned to Panama.
Clearly this creates an unfair, if not impossible, onus
for the applicant to discharge as she will in all likeli
hood be unable to adduce any direct evidence sup
porting a claim to fear of persecution from the new
regime. She may very well have no knowledge of the
impact of Noriega's removal from power in Panama.
Comments by Marceau J.A. in Longia v. Canada
(Minister of Employment and Immigration), [1990] 3
F.C. 288 (C.A.) support my conclusion that the Board
erred in reconvening this applicant's hearing. In that
case the Court considered whether the Immigration
Appeal Board has jurisdiction to reopen, rehear or
reconsider a claim to Convention refugee status after
having determined and denied the claim. Marceau
J.A. reiterated the point made in previous cases that a
Board does not have inherent or continuing jurisdic
tion to reopen an application for redetermination of
refugee status which has already been disposed of
solely in order to hear evidence of new facts. In
response to the suggestion that the refugee determi
nation process is an ongoing process, he commented,
at page 292:
The political refugees have now a right to be recognized as
such, and the role of the Board is to adjudicate upon that right.
I disagree with the view that the determination of the Board in
that respect would be an ongoing process. The well founded
fear of persecution alleged by the refugee has to be ascer
tained, for it to be given effect according to law, at the moment
his claim is adjudicated. It is true, of course, that facts may
change and political events may occur which may lead to the
conclusion that a fear which was not well founded has become
now reasonable. But it is not by reopening the hearing on the
first claim that this can be verified, it is only by allowing a
second claim and proceeding to consider it.
Here, had the political situation in Panama wors
ened to the extent that the applicant had new evi-
dence to support her claim to Convention refugee sta
tus after the hearing concluded but before the
decision was taken by the Board, the Act does not
provide a mechanism by which she could have the
hearing reconvened. Similarily, the Minister cannot
seek to reconvene a hearing to present new evidence
opposing the applicant's claim. His remedy is to
invoke subsection 69.2(1) if the Board concludes that
the applicant is a Convention refugee. It therefore
seems manifestly unfair to permit the Board to recon
vene a hearing to consider new evidence of a change
in a country's political regime which occurred after
the initial hearing.
Finally, I am concerned that if the Board can take
this step without the request or consent from the par
ties in this case, does it assume the obligation to do
so in all similar situations? How is it to determine
which changes are sufficient to warrant such inter
vention, and above all, how can it be reconciled with
the requirement in subsection 68(2) that Boards deal
with all proceedings as informally and expeditiously
as the circumstances and the considerations of fair
ness permit and subsection 69.1(9) that they render
their decision as soon as possible after completion of
the hearing?
Accordingly, for reasons given orally from the
bench in Toronto, Ontario, on December 17, 1991, I
ordered that the decision of the Board to reconvene
the applicant's refugee hearing to hear evidence of
changes in conditions in Panama be quashed and the
Board be directed to render a decision based on the
evidence before it on November 29, 1989. Costs to
the applicant.
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