A-706-91
The Minister of Employment and Immigration
(Applicant)
v.
Ugan Mehmet (Respondent)
INDEXED AS: CANADA (MINISTER OF EMPLOYMENT AND
IMMIGRATION) V. MERNET (C.A.)
Court of Appeal, Marceau, Desjardins and Décary
JJ.A.—Montréal, February 5; Ottawa, April 1, 1992.
Immigration — Refugee status — S. 28 application to review
refusal of first level tribunal to apply exclusion clause in
United Nations Convention — Respondent having tortured
Kurds as Turkish armed forces commando — First level tribu
nal declining to apply exclusion clause in Convention for want
of jurisdiction — Functions of first level tribunal, Refugee
Division analyzed — Case law reviewed — Exclusion negative
aspect of refusal, can only be considered at second stage —
Distinction between "changed circumstances" and exclusion
clauses — Application of exclusion clause to claimant meeting
eligibility test not automatic, requiring assessment of circum
stances.
This was a section 28 application to set aside a decision of
the adjudicator and member of the Refugee Division (the first
level tribunal) who refused to apply the exclusion clause con
tained in Section F of Article 1 of the United Nations Conven
tion Relating to the Status of Refugees. The said clause states
that the provisions of the Convention shall not apply to persons
suspected of a war crime, of a serious non-political crime or of
acts contrary to the purposes and principles of the United
Nations. The claimant was a Turkish national who served as a
specialized commando in the armed forces and tortured Kurd-
ish citizens accused of collaborating with alleged terrorists
from the Kurdistan Workers' Party. He left Turkey for Canada
in November 1986 as he feared reprisals from the party sympa
thizers when he returned to civilian life. The Minister's repre
sentative asked the first level tribunal to consider the "possibil-
ity of applying the exclusion clause in the Convention". The
reason given by the tribunal for rejecting this invitation was
that only the body empowered to decide whether an individual
is a Convention refugee had jurisdiction to deny that person the
benefits associated with such status. The first level tribunal,
satisfied that the claim had a credible basis, referred the case to
the Refugee Division.
The issue before the Court was whether the first level tribu
nal erred in ruling that it lacked jurisdiction to apply the exclu
sion clause contained in Section F of the Convention.
Held (Desjardins J.A. dissenting), the application should be
dismissed.
Per Marceau J.A.: The adjudicator and member of the Divi
sion were correct in indicating that they lacked jurisdiction to
consider whether the exclusion clause in Section F of the Con
vention should be applied herein. After finding in the evidence
facts which could support the claimant's testimony that he
fears persecution in his country, the tribunal could not then
conclude that the claim lacked a credible basis. The possibility
that an exclusion might be applied did not remove the exis
tence of credible evidence on which the claim may be based.
The first level tribunal does not have power to grant refugee
status and its function, which is defined in subsection 46.01(6)
of the Immigration Act, is not to question the adequacy of the
evidence submitted in support of a claim but only the existence
of such evidence. It would offend the coherence of the system
for the first level tribunal to do more than ascertain whether a
credible basis exists; it is for the Refugee Division, the body
empowered to allow the claim after weighing the evidence and
finding it to be sufficient, to consider whether an exclusion
requires it to deny the claimant the protection to which he
would otherwise be entitled. An exclusion is a negative aspect
of refusal which has nothing to do with the positive aspects of
the very definition of a Convention refugee in subsection 2(1)
of the Immigration Act, and can only be treated separately at a
second stage.
In Mileva v. Canada (Minister of Employment and Immigra
tion), the Federal Court of Appeal held that the first level tribu
nal might take into account "changed circumstances" in the
claimant's country of origin. There is, however, a necessary
distinction between "changed circumstances" and the exclu
sion clauses: unlike the latter, the "changed circumstances" are
closely associated with the concept of refugee, since they
directly affect the rational or reasonable aspect of the fear cited
by the claimant in attempting to make out his claim. It is this
distinction that explains the way in which the text defining the
meaning of the phrase "Convention refugee" was drafted. It is
not possible for the first level tribunal, when it is considering
the credibility of a claim, to suddenly realize that it is dealing
with a clear and unequivocal case of exclusion because, under
the new system, the claimant must already at that point have
satisfied the tribunal that he is eligible. The application of an
exclusion clause to a claimant who meets the eligibility test is
never automatic, and will always require an assessment of the
circumstances and the situation as a whole. The jurisdiction to
apply one of the exclusion clauses contained in Section F of
Article 1 of the United Nations Convention belongs exclu
sively to the Refugee Division which will have to make a final
ruling on the claim.
Per Desjardins J.A. (dissenting): According to the respon
dent, there are two definitions of a "Convention refugee": one
which is positive and tends towards inclusion and one which is
negative and tends towards exclusion. The respondent's posi
tion, that the first level tribunal's jurisdiction is limited to
examining the "credible basis" of a claim and does not extend
to the negative and secondary aspects of the first definition of a
Convention refugee is much too general and does not take into
account the function, limited though it may be, conferred on
the first level tribunal by the legislation. Whether the exclusion
clause constitutes a second definition or is one of the essential
components of the definition of a "Convention refugee", it is
the same legislative provision which both adjudicative levels
have the duty of applying, but from different standpoints.
Claimants falling within the exclusions contained in Sec
tions E and F of the Convention may in no way claim the pro
tection offered by Canada to Convention refugees. As to
whether the first level tribunal has a part to play in the exclu
sion process, the answer to this question could be found in
Mileva. In that case, the Court had to decide on the jurisdiction
of the first level tribunal over evidence of recent political
changes in Bulgaria, an essentially negative component of the
definition. Nevertheless, the function of the Refugee Division
and the first level tribunal described by the majority of the
Court seems to have general application in view of the respon
sibilities conferred on them by the Act. The function of the
first level tribunal is that of screening out frivolous claims or
those lacking a credible basis. In a case where the exclusion is
obvious at the first level, it would be inconsistent with the pur
pose of creating the first level tribunal to send the claim on to
the evaluation process regardless. If, however, it appears to the
first level tribunal that there is only a possibility of applying
the exclusion and the positive and negative evidence needs to
be weighed, the first level tribunal should refer the case to the
Refugee Division. The respondent's contention that, when a
claimant has met the eligibility criteria, an exclusion clause
cannot be set up against him at the first level, was unaccept
able. The scope of the eligibility criteria is not necessarily the
same as that of the exclusion clauses. There is a marked dis
tinction between paragraph 19(1)(j) of the Immigration Act
which is more limited since it refers to "a war crime or a crime
against humanity within the meaning of subsection 7(3.76) of
the Criminal Code and that, if it had been committed in
Canada, would have constituted an offence against the laws of
Canada in force at the time of the act or omission" and para
graph (a) of Section F of the Convention which is wider since
it deals, inter alia, with "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". The fact that a claimant has successfully met the lim
ited test of eligibility is no guarantee that, if his claim discloses
credible evidence of exclusion, it must necessarily proceed to
the second level. In the case at bar, the first level tribunal in
exercising its jurisdiction should have determined whether
there was credible or trustworthy evidence that would justify
denial of refugee station on one of the grounds mentioned in
Section E or F of Article 1 of the Convention.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
An Act to amend the Immigration Act and to amend other
Acts in consequence thereof, R.S.C., 1985 (4th Supp.),
c. 28, ss. 40, 41, 43.
Criminal Code, R.S.C., 1985, c. C-46, s. 7(3.76) (as am.
by R.S.C., 1985 (3rd Supp.), c. 30, s. 1).
Federal Court Act, R.S.C., 1985, c. F-7, s. 28 (as am. by
R.S.C., 1985 (2nd Supp.), c. 30, s. 61).
Immigration Act, R.S.C., 1985, c. I-2, ss. 2(1) (as am. by
R.S.C., 1985 (4th Supp.), c. 28, s. 1), 19(1)(j) (as am.
by R.S.C., 1985 (3rd Supp.), c. 30, s. 3), 46.01(1),(6)
(as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14),
69.1(5) (as enacted idem, s. 18), 82.1 (as enacted idem,
s. 19), schedule (as enacted idem), s. 34).
Refugee Claimants Designated Class Regulations,
SOR/90-40, s. 3(2)(e).
CASES JUDICIALLY CONSIDERED
APPLIED:
Mileva v. Canada (Minister of Employment and Immigra
tion), [1991] 3 F.C. 398; (1991), 50 Admin. L.R. 269; 129
N.R. 262 (C.A.).
REFERRED TO:
Leung v. Canada (Minister of Employment and Immigra
tion) (1990), 74 D.L.R. (4th) 313; 12 Imm. L.R. (2d) 143
(F.C.A.); Canada (Minister of Employment and Immigra
tion) v.. Paszkowska (1991), 13 Imm. L.R. (2d) 262
(F.C.A.); Ramirez v. Canada (Minister of Employment
and Immigration), [1992] 2 F.C. 306.
AUTHORS CITED
Driedger, Elmer A. Construction of Statutes, 2nd ed.,
Toronto: Butterworths, 1983.
Goodwin-Gill, Guy S. The Refugee in International Law,
Oxford: Clarendon Press, 1983.
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.
United Nations General Assembly-International Law
Commission. The Charter and Judgment of the Nürn-
berg Tribunal: History and Analysis, Appendix I1, U.N.
Doc. A/CN. 4/5 (3 March 1949).
APPLICATION under section 28 to review refusal
by an adjudicator and a member of the Refugee Divi
sion to apply one of the exclusion clauses contained
in section E or F of Article 1 of the United Nations
Convention Relating to the Status of Refugees.
Application dismissed.
COUNSEL:
Normand Lemyre for applicant.
M. Pia Zambelli for respondent.
SOLICITORS:
Deputy Attorney General of Canada for appli
cant.
Sabine Venturelli, Montréal, for respondent.
The following is the English version of the reasons
for judgment rendered by
MARCEAU J.A.: It may be thought that after so
many decisions by this Court in which the new sys
tem for determining and granting refugee status
(adopted by An Act to amend the Immigration Act
and to amend other Acts in consequence thereof,
R.S.C., 1985 (4th Supp.), c. 28, in effect on January
1, 1989) had been challenged, all the problems
involved in defining the respective functions of the
various administrative bodies concerned would long
since have been resolved. That is not so. The applica
tion at bar made pursuant to section 28 of the Federal
Court Act [R.S.C., 1985, c. F-7 (as am. by R.S.C.,
1985 (2nd Supp.), c. 30, s. 61)] (as it stood before
February 1, 1992) raises a significant question which
to my knowledge has never to date been dealt with by
the courts. By subsection 2(1) of the Immigration Act
[R.S.C., 1985, c. I-2 (as am. by R.S.C., 1985 (4th
Supp.), c. 28. s. 1)] ("the Act"), which undertakes at
the outset to define certain words subsequently used,
the phrase "Convention refugee" ("réfugié au sens de
la Convention" in the French version) is defined as
follows:
"Convention refugee" means 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 the person's nationality and is
unable or, by reason of that fear, is unwilling to avail him
self of the protection of that country, or
(ii) not having a country of nationality, is outside the
country of the person's former habitual residence and is
unable or, by reason of that fear, is unwilling to return to
that country, and
(b) has not ceased to be a Convention refugee by virtue of
subsection (2),
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;
The new question now before the Court is whether
the first level tribunal, consisting of an adjudicator
and a member of the Refugee Division, which is
made responsible for ensuring that a claim has a
"credible basis" before it is submitted to the body
responsible for disposing of it, has jurisdiction to
apply one of the exclusion clauses contained in sec
tion E or F of Article 1 of the Convention [United
Nations Convention Relating to the Status of Refu
gees], in particular in section F which reads as fol
lows, as set out in the schedule to the Act [as enacted
idem, s. 34]:
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.
It is surprising that the courts have not considered
the point before, but that it was finally raised here is
readily understandable in the circumstances of the
case at bar. The claimant was a Turkish national who,
in the years preceding his flight from his country,
when he was serving as a specialized commando in
the armed forces, apparently engaged in acts of tor
ture of Kurdish citizens accused of collaborating with
alleged terrorists from the Kurdistan Workers' Party.
In the course of his argument, the Minister's repre
sentative asked members of the first level tribunal to
consider the "possibility of applying the exclusion
clause in the Convention". However, the adjudicator
and member of the Refugee Division felt they should
decline the invitation and, in a decision in which they
recognized that the claim had the necessary credible
basis for being submitted to the Refugee Division,
they explained their approach as follows (at page 7):
[TRANSLATION] In the absence of reasoned argument to the
contrary, we consider that only the body empowered to decide
whether an individual is a Geneva Convention refugee has
jurisdiction to deny that individual the benefits associated with
such status; the exclusion clauses described in Sections D, E
and F of Article 1 of the 1951 Convention state that it will not
be applicable to persons who are already receiving United
Nations protection or assistance, persons who are recognized
in their country of residence as having the rights and obliga
tions attached to possession of the nationality of that country
and, finally, persons who it is felt should not enjoy interna
tional protection because of the reprehensible acts committed
by them.
Accordingly, in view of the mandate conferred on us as the
first level tribunal, we feel that we do not have jurisdiction to
rule in the case at bar on the possibility of the exclusion clause
applying in these circumstances.
The question is so clearly presented that the Minis
ter, who disputes the tribunal's approach, could not
avoid asking this Court to intervene.
I will say at once that I do not think the Court
should intervene as I concur fully in the tribunal's
opinion. In my view, the adjudicator and member of
the Division were right to indicate that they lacked
the power to consider whether an exclusion clause
should be applied here, and I take this view for the
following reasons.
The function of the first level tribunal is, as we
know, defined in subsection 46.01(6) [as enacted
idem, s. 14] of the Act, which reads as follows:
46.01 .. .
(6) If the adjudicator or the member of the Refugee Divi
sion, after considering the evidence adduced at the inquiry or
hearing, including evidence regarding
(a) the record with respect to human rights of the country
that the claimant left, or outside of which the claimant
remains, by reason of fear of persecution, and
(b) the disposition under this Act or the regulations of claims
to be Convention refugees made by other persons who
alleged fear of persecution in that country,
is of the opinion that there is any credible or trustworthy 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.
My first comment is a simple one. I simply do not
see how the adjudicator and member of the Division,
after finding in the credible evidence admitted by
them facts which could support the claimant's allega
tion that his fear of being a victim of persecution in
his country on one of the indicated grounds is justi
fied, could then conclude that the claim lacked a
credible basis. The possibility that an exclusion might
be applied does not remove "the existence of credible
evidence" on which the claim may be based, and
what they have to do as soon as they find that such
evidence exists is clearly stated in the Act.
On reviewing the many decisions of this Court
which have dealt with the function of a first level tri
bunal it can be seen that, behind a whole range of
varied expressions some of which are undoubtedly
less well-chosen than others, there is one overriding
principle: it is not the function of the first level tribu
nal to question the adequacy of the evidence submit
ted in support of a claim; only the existence of such
evidence is before it. This clearly could not be other
wise, since it is in no way the function of this tribunal
to grant the status claimed; in that case, is it logical to
think that although the first level tribunal is not a
judge of the adequacy of the evidence to support the
claim, it is still empowered to decide on the adequacy
of evidence to deny the status in spite of a valid
claim? It seems to me that such a legal concept would
be both awkward and incomprehensible.
In my view it would offend the 'coherence of the
system for the first level tribunal to do more than
ascertain whether a credible basis exists, touching on
each component of the definition and so capable of
supporting a refugee claim. It is for the Refugee
Division, the body empowered to allow the claim,
after weighing the evidence and finding it to be suffi
cient, to consider whether an exclusion does not ulti
mately make it necessary to deny the claimant the
protection to which he would otherwise be entitled.
Further confirmation of the 'exclusive nature of the
function of the Refugee Division in this connection is
to be found in subsection 69.1(5) [as enacted idem, s.
18] of the Act, as it stands:
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.
I agree that strictly speaking this section deals only
with the Minister's powers and the right to call wit
nesses and make representations when there is any
question of refusing to recognize status pursuant to
one of the exclusion clauses in Section E or F of Arti
cle 1 of the Convention; but this provision does not
occur in isolation and must be seen in its context. It
has to be given some meaning; and the only explana
tion is that an exclusion is a negative aspect of refusal
which has nothing to do with the positive aspects of
the very definition of a refugee, and can only be
treated separately at a second stage.
I am not forgetting that in Mileva v. Canada (Min-
ister of Employment and Immigration), [1991] 3 F.C.
398, this Court refused to deny the first level tribunal
the right to take into account "changed circum
stances" in the claimant's country of origin, and I
realize that changed circumstances can be seen as a
negative aspect, in the same way as exclusion
clauses, especially as they are mentioned in subsec
tion 69.1(5) of the Act to which I have just referred.
However, I think there is still a necessary distinction
between "changed circumstances" and the exclusion
clauses. The "changed circumstances" are closely
associated with the idea of a refugee, since they
directly affect the rational or reasonable aspect of the
fear cited by the claimant when he is trying to make
out his claim. Exclusion clauses, on the other hand,
are completely external to the characteristics of a ref
ugee and to both the genuineness and the reasonable
ness of his fear of persecution on the grounds stated,
if he is sent back to his country of origin. Moreover,
it is this necessary distinction that explains the way in
which the text defining the meaning of the phrase
"Convention refugee" in subsection 2(1) of the Act
was drafted. It is undoubtedly to give effect to this
that mention is made of "changed circumstances" in
paragraph (b), the pendant to paragraph (a) setting
out the components of the refugee concept, while the
exclusions are introduced quite separately.
Although this distinction is beyond question, it will
be said, the reaction in Mileva may also be explained
by practical considerations: why place before the
Refugee Division an application which clearly cannot
succeed, as the alleged fear certainly can no longer he
regarded as genuine or reasonable in the circum
stances that now prevail? On the same practical basis,
may we not ask why the Refugee Division should
hear an application which will undoubtedly be dis
missed because an exclusion clause will ultimately
prevent the application from being allowed? I think
the answer is that it is not possible for the first level
tribunal, when it is considering the credibility of a
claim, to suddenly realize it is dealing with a clear
and unequivocal case of exclusion. This is so because
under the new system the claimant must already at
that point have satisfied the tribunal that he is eligi
ble, and among ineligible persons subsection
46.01(1) [as enacted idem, s. 14] includes those
described in paragraph 19(1)(j) [as am. by R.S.C.,
1985 (3rd Supp.), c. 30, s. 3], namely:
19.(1)...
(j) persons who there are reasonable grounds to believe
have committed an act or omission outside Canada that
constituted a war crime or a crime against humanity
within the meaning of subsection 7(3.76) of the Criminal
Code and that, if it had been committed in Canada, would
have constituted an offence against the laws of Canada in
force at the time of the act or omission.
The application of an exclusion clause to a claimant
who meets the eligibility test is never automatic, and
will always require an assessment of the circum
stances and the situation as a whole, as Guy S.
Goodwin-Gill clearly explains in his book The Refu
gee in International Law, at pages 61 and 62:
Article I F excludes 'persons', rather than `refugees' from
the benefits of the Convention, suggesting that the issue of a
well-founded fear of persecution is irrelevant and need not be
examined at all if there are 'serious reasons for considering'
that an individual comes within its terms. In practice, the claim
to be a refugee can rarely be ignored, for a balance must also
be struck between the nature of the offence presumed to have
been committed and the degree of persecution feared. A person
with a well-founded fear of very severe persecution, such as
would endanger life or freedom, should only be excluded for
the most serious reasons. If the persecution feared is less, then
the nature of the crime or crimes in question must be assessed
to see whether criminal character in fact outweighs the appli
cant's character as a bona fide refugee.'
It is true that the claimant in the case at bar did not
have to undergo the eligibility test, as he made his
claim before the new Act came into effect and under
the transitional provisions he moved on directly to
the stage at which credibility is considered; 2 but of
course the parameters of a new system cannot be
assessed with the aid of limits which transitional pro
visions may have placed on its application, whether
for reasons involving observance of existing rights or
for any other reason.
In the Handbook on Procedures and Criteria for Determi
ning Refugee Status under the 1951 Convention and the 1967
Protocol relating to the Status of Refugees, published by the
Office of the United Nations High Commissioner for Refugees
— which of course does not make any mention of an eligibility
test — the idea seems to underlie the entire analysis. It can be
seen at once from reading the opening paragraph [at page 33]:
140. The 1951 Convention, in Sections D, E and F of Article
1, contains provisions whereby persons otherwise having the
characteristics of refugees, as defined in Article 1, Section A,
are excluded from refugee status. Such persons fall into three
groups. The first group (Article 1 D) consists of persons
already receiving United Nations protection or assistance; the
second group (Article 1 E) deals with persons who are not con
sidered to be in need of international protection; and the third
group (Article 1 F) enumerates the categories of persons who
are not considered to be deserving of international protection.
2 Sections 40, 41 and 43 of an Act to amend the Immigration
Act and to amend other Acts in consequence thereof, R.S.C.,
1985 (4th Supp.), c. 28.
Moreover, there is no reason to think that for these
"designated refugees" the passage is that much sim
pler, as paragraph 3(2)(e) of the Refugee Claimants
Designated Class Regulations (SOR/90-40) contains
an exclusion in principle of persons covered by para
graph 19(1)(j); that paragraph reads in part as fol
lows:
3....
(2) The Refugee Claimants Designated Class shall not
include a person who
(e) is described in any of paragraphs 19(1)(c) to (g), (j) or
27(2)(c) of the Act;
Those then are the reasons leading me to think that
the first level tribunal in the new system for deter
mining refugee status does not have jurisdiction to
apply to a claimant one of the exclusion clauses con
tained in Section E or F of Article 1 of the Geneva
Convention. That jurisdiction belongs exclusively to
the Refugee Division which will have to make a final
ruling on the claim.
In my opinion, the application should be dis
missed.
DÉCARY J.A.: I concur.
* * *
The following is the English version of the reasons
for judgment rendered by
DESJARDINS J.A. (dissenting): Only one question of
law is raised by this application pursuant to section
82.1 of the Immigration Act ("the Act"): 3 does the
first level tribunal have jurisdiction regarding evi
dence of the exclusions contained in the body of the
definition of a "Convention refugee" in section 2 of
the Immigration Act, which refers to the schedule of
the Act. The wording is as follows:
2. (1)...
"Convention refugee" means 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,
3 R.S.C., 1985, c. I-2 [as enacted by R.S.C., 1985 (4th
Supp.), c. 28, s. 19].
(i) is outside the country of the person's nationality and is
unable or, by reason of that fear, is unwilling to avail him
self of the protection of that country, or
(ii) not having a country of nationality, is outside the
country of the person's former habitual residence and is
unable or, by reason of that fear, is unwilling to return to
that country, and
(b) has not ceased to be a Convention refugee by virtue of
subsection (2),
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; [My emphasis.]
Section F of Article 1 of the Convention, contained
in the schedule to the Act, provides:
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.
The respondent, who is of Turkish origin, did his
compulsory military service in Turkey from March
1985 to September 1986 and took part as a sergeant
in reprisals against and torture of the Kurdish people
of the village of Borcka, suspected of collaborating
with alleged terrorists of the Kurdistan Workers'
Party ("P.K.K."). The claimant explained that his
compulsory military service obliged him to carry out
his superiors' orders like an automaton, and that if he
had not done so, he would have suffered severe pen
alties. He left Turkey in November 1986 for Canada
because he feared reprisals by P.K.K. sympathizers
when he returned to civilian life.
The case presenting officer invited the first level
tribunal in his submissions, and after the evidence
was closed, to consider the possibility of applying the
exclusion clause contained in the final paragraph of
the definition of a "Convention refugee". The reason
given by the tribunal for rejecting the claim was that
only the body empowered to decide whether an indi
vidual is a "Convention refugee" had jurisdiction to
deny that individual the benefits associated with such
status. The first level tribunal concluded that the
claimant's testimony was credible and referred his
case to the Refugee Division, as it was satisfied that
the claim had a credible basis.
The tribunal said the following : 4
[TRANSLATION] ANALYSIS
The testimony of the claimant at the hearing was given with
out prompting from his counsel, frankly and without exaggera
tion. His story was detailed, coherent and in his own words.
The claimant did not seek to hide his participation in actions
which might not be favourable to him in the minds of members
of the tribunal. Of his own accord, without any specific ques
tion compelling him to do so, he described how he came to
participate in actions against the P.K.K. as part of his military
service.
EXCLUSION CLAUSE
As we said earlier, at no time before his submissions did the
C.P.O. indicate that he would be asking the tribunal to apply
the exclusion clause in the instant case. Further, he raised no
questions in his cross-examination designed to throw light on
the claimant's participation in the acts committed against the
Kurdish people. The only questions raised by Mr. Castonguay
concerned the two versions given by the claimant of his rea
sons for coming to Canada._
It is worth setting out here paragraphs 140 and 141 of the
Handbook on Procedures and Criteria for Determining Refu
gee Status dealing with the application of exclusion clauses:
140. The 1951 Convention, in Sections D, E and F of Article
1, contains provisions whereby persons otherwise having the
characteristics of refugees, as defined in Article I, Section
A, are excluded from refugee status. Such persons fall into
three groups. The first group (Article I D) consists of per
sons already receiving United Nations protection or assis
tance; the second group (Article 1 E) deals with persons who
are not considered to be in need of international protection;
and the third group (article I F) enumerates the categories of
persons who are not considered to be deserving of interna
tional protection.
141. Normally it will be during the process of determining a
person's refugee status that facts leading to exclusion under
4 Decision rendered on May 16, 1991, Hearing Division and
Immigration and Refugee Board, file No. 9529-E-6950.
these clauses will emerge. It may, however, also happen that
the facts justifying exclusion will become known only after
a person has been recognized as a refugee. In such cases, the
exclusion clause will call for a cancellation of the decision
previously taken.
In the absence of reasoned argument to the contrary, we con
sider that only the body empowered to decide whether an indi
vidual is a Geneva Convention refugee has jurisdiction to deny
that individual the benefits associated with such status; the
exclusion clauses described in Sections D [sic], 5 E and F of
Article 1 of the 1951 Convention state that it will not be appli
cable to persons who are already receiving United Nations pro
tection or assistance, persons who are recognized in their coun
try of residence as having the rights and obligations attached to
possession of the nationality of that country and, finally, per
sons who it is felt should not enjoy international protection
because of the reprehensible acts committed by them.
Accordingly, in view of the mandate conferred on us as the
first level tribunal, we feel that we do not have jurisdiction to
rule in the case at bar on the possibility of the exclusion clause
applying in these circumstances.
The applicant, who is challenging this decision,
referred the Court to sections 46 [as am. idem, s. 14]
and 46.01 of the Act, which set out the jurisdiction of
the first level tribunal. His argument is as follows.
Subsection 46.01(1) confers jurisdiction on the adju
dicator and the member of the Refugee Division to
determine whether the claim is admissible. A claim
found to be inadmissible is not forwarded to the Ref
ugee Division. If the claim is found to be admissible,
the first level tribunal then considers whether the
claim has a "credible basis", and under subsec
tion 46.01(6) this is clearly associated with the defi
nition of a "Convention refugee". The first level tri
bunal accordingly has a duty to consider all the
essential aspects of this definition, in carrying out its
duties as specified by the Act and the decisions of
this Court. 6 In the applicant's submission, the exclu-
sions are essential parts of this definition. If there is
evidence giving members of the first level tribunal
5 Although the first level tribunal mentions the exclusion
clause described in Section D of Article 1 of the Convention,
this section is not part of the Immigration Act.
6 See Leung v. Canada (Minister of Employment and Immi
gration) (1990), 74 D.L.R. (4th) 313 (RC.A.); Mileva v.
Canada (Minister of Employment and Immigration), [1991] 3
F.C. 398 (C.A.); Canada (Minister of Employment and Immi
gration) v. Paszkowska (1991), 13 Imm. L.R. (2d) 262
(F.C.A.).
"serious reasons for considering" 7 that the claimant
does not fall within the definition of a "refugee"
because he is a person to whom the Convention does
not apply pursuant to Sections E and F of Article 1,
the first level tribunal must then consider it. If sub
section 46.01(6) of the Act is interpreted as giving
the first level tribunal no jurisdiction to consider the
exclusion clause, only part of the definition will be
looked at. The result would be a situation in which,
though it felt that the Convention does not apply to
the case of a claimant who clearly meets the exclu
sion criteria, the first level tribunal should forward
the claim to the Refugee Division. The latter would
be required either to recognize that the claimant has
refugee status and then exclude him because he is not
covered by the Convention or conclude that the
claimant falls within an exclusion clause and decide
that it is accordingly pointless to consider the validity
of his fear of persecution. In either case, the second
level proceeding would be futile.
The respondent did not agree that the exclusion
clause is one of the essential components of the defi
nition of a "Convention refugee". He noted that in the
English version the words "means" and "does not
include" have acquired in the language of legal draft
ing the sense that the word "means" is limiting while
the word "include" ("does not include") is more gen
eral. 8 There are in fact two definitions of a "Conven-
tion refugee": one which is positive and tends
7 This language is taken from Section F of the Convention,
contained in the section of the Act.
8 E. A. Driedger, Construction of Statutes, 2nd ed. (Toronto:
Butterworths, 1983) at p. 18:
Definition provisions appear in varying forms. One encoun
ters definitions where a word or phrase is stated:. (1) to mean
something, (2) to include something, (3) to mean something
and to include another thing, or (4) to mean and include some
thing.
The standard guide for draftsmen is that means restricts and
includes enlarges.
towards inclusion and one which is negative and
tends towards exclusion. 9 The French version of the
definition of a "Convention refugee" is even closer to
the statutory wording since it contains two separate
paragraphs. This approach accordingly requires that
the first level tribunal look initially at the positive
aspects of the definition, and only thereafter at the
negative aspects. However, it cannot rule on the
exclusions since the inclusion factors must first be
assessed, which it has no power to do as it has no
jurisdiction to weigh the evidence.
The respondent argued that this Court's decision in
Mileval 0 cannot be applied since it deals with
changed circumstances in the country of origin, and
this change is closely bound up with the inclusion
components of the definition—which is not the case
with the exclusion clause. The eligibility stage,tt he
went on, is designed specifically to exclude at the
outset persons who cannot look for protection under
the Convention whatever the merits of their fear of
persecution. 12 The first level tribunal then has the
9 The respondent cited this description of the definition of a
«Convention refugee», contained in the Handbook on Proce
dures and Criteria for Determining Refugee Status, Office of
the United Nations High Commissioner for Refugees, Geneva,
September 1979, at p. 9:
31. The inclusion clauses define the criteria that a person
must satisfy in order to be a refugee. They form the posi
tive basis upon which the determination of refugee status
is made. The so-called cessation and exclusion clauses
have a negative significance; the former indicate the con
ditions under which a refugee ceases to be a refugee and
the latter enumerate the circumstances in which a person
is excluded from the application of the 1951 Convention
although meeting the positive criteria of the inclusion
clauses.
10 Mileva v. Canada (Minister of Employment and Immigra
tion), [1991] 3 F.C. 398 (C.A.).
11 Subsection 46.01(1) of the Immigration Act.
12 It should be noted that the respondent's claim is governed
by the Refugee Claimants Designated Class Regulations,
SOR/90-40, December 27, 1989, which applies in the case of
persons who claimed refugee status before January 1, 1989 and
whose claim had a credible basis either under s. 46.01(6) or (7)
of the Act or under s. 43(1) of an Act to amend the Immigra
tion Act and to amend other Acts in consequence thereof,
R.S.C., 1985 (4th Supp.), c. 28. Subsection 46.01(1) is not
applicable. However, the definition excludes persons covered
(Continued on next page)
function of screening out those who abuse the pro
cess. Its jurisdiction is limited to examining the
"credible basis" of a claim and does not extend to the
negative and secondary aspects of the "first defini
tion" of a Convention refugee. In support of its argu
ment, the respondent relied on subsection 69.1(5) of
the Act, which is specific when the Minister wishes
to rely on exclusions E and F contained in Article 1
of the Convention.
The respondent's position seems to me much too
general and does not take into account the function,
limited though it may be, conferred on the first level
tribunal by the legislation.
In my opinion, it does not matter whether we say
as the respondent does that the exclusion clause con
stitutes a second definition or, with the applicant, that
this clause is one of the essential components of the
definition of a "Convention refugee". It is the same
legislative provision which both adjudicative levels
have the duty of applying, but from different stand
points.
It is clear that someone who falls within the exclu-
sions contained in Sections E and F of the Conven
tion may in no way claim the protection offered by
Canada to Convention refugees. In a case where the
evidence admits of no doubt, the Refugee Division,
which is the second level tribunal, can never give
such a person Convention refugee status. Where the
evidence needs to be weighed, the Refugee Division
may only determine whether the claimant is entitled
to refugee status after it has analysed the evidence as
a whole with all mitigating circumstances or grounds
of defence.
Does the first level tribunal have a part to play in
the exclusion process?
(Continued from previous page)
by ss. 19(1)(c) to (g) or (j) and 27(2)(c) of the Act. A person
meeting the criteria of the definition can apply directly to an
immigration officer for landing without going through the
Refugee Division.
If evidence found credible by the first level tribu
nal happens to bear on the exclusion of a person on
grounds mentioned in Sections E and F of the Con
vention, and that evidence clearly establishes that it
would be impossible, or that the Refugee Division
might never grant the claimant Convention refugee
status, I do not see what logic could deprive the first
level tribunal of the function defined for it in Mileva.
It is true that in Mileva, this Court had to decide on
the jurisdiction of the first level tribunal over evi
dence of recent political changes taking place in Bul-
garia. This was an essentially negative component of
the definition. The function of the Refugee Division
and the first level tribunal described by the majority
of the Court seems to me to have general application
in view of the responsibilities conferred on them by
the Act.
Pratte J.A. said the following: 13
Before going any further, it will be useful to recall the dif
ference between the respective roles of the Refugee Division,
on the one hand, and the adjudicator and member of the Refu
gee Division, on the other, when they have to consider a claim
for refugee status the admissibility of which is not in dispute.
What the Refugee Division is asked to do is to determine
whether, on the evidence, the claimant is a Convention refu
gee. The Refugee Division must accordingly take note of evi
dence relating to past or present facts affecting the claimant,
his family and country of origin. Such evidence must be
weighed by the Refugee Division in the same way as any other
tribunal would do, taking into account its credibility and evi-
dentiary force, and deciding what facts are established by that
evidence. The Refugee Division must then decide whether the
facts so proven are such that it can conclude that the claimant
really runs the risk of being persecuted for reasons mentioned
in the Convention if he returns to his country. As it is impossi
ble to predict the future, the Refugee Division in making such
a judgment of course is only expressing an opinion.
The function of an adjudicator and a member of the Refugee
Division is defined by subsection 46.01(6) [as enacted idem, s.
14] of the Act. They also must take note of the various points
of evidence submitted to them. They must rule on the credibil
ity of that evidence. They must then consider whether, based
on the evidence they find to be credible, the Refugee Division
could reasonably conclude that the claim was valid if the mat
ter was referred to it. It is not their function to decide what
facts are established - by the evidence; nor do they have to
decide whether the evidence supports the conclusion that the
13 Mileva, supra, note 10, at pp. 402-403, per Pratte J.A.
claimant really runs the risk of being persecuted if he returns
home. After deciding on the credibility of the evidence, the
only question the adjudicator and the member of the Refugee
Division can ask themselves is whether, based on such evi
dence as is credible, the Refugee Division could if it had the
matter before it conclude that facts existed which it could
regard as sufficient to make out the validity of the claim. [My
emphasis.]
He went on to say: 14
While the adjudicator and member of the Refugee Division
must consider evidence tending to show a change in circum
stances in the claimant's country of origin, they are not
required to decide whether the change in circumstances estab
lished by this evidence is sufficient to defeat the claim. They
are only required to decide whether that evidence is such that it.
would be impossible for the Refugee Division to allow the
claim. [My emphasis.]
For my part, I said: 15
The first instance tribunal must determine the credibility of
any evidence submitted to it. It must then determine whether,
on the evidence so found to be credible, the Refugee Division
could reasonably conclude that the claim was justified. It is not
required to weigh this evidence in terms of the existence of
each of the essential components of the definition of a "Con-
vention refugee", since that is the function of the Refugee
Division. However, if the evidence is such that the Refugee
Division could never conclude that the claim was valid, the
first instance tribunal has the power to disallow the claim on
the ground that it lacks a credible basis. [My emphasis.]
The function of the first level tribunal is precisely
that of screening out frivolous claims or those lack
ing a credible basis. In a case where the exclusion is
obvious at the first level, it seems to me to be incon
sistent with the purpose of creating the first level tri
bunal to send the claim on to the evaluation process
regardless. If of course, on the evidence accepted as
credible, it appears to the first level tribunal that there
is only a possibility of applying the exclusion and the
positive and negative evidence accepted needs to be
weighed, then the first level tribunal should refer the
case to the Refugee Division.
I cannot accept the respondent's position that,
when a claimant has met the eligibility criteria, an
exclusion clause cannot be set up against him at the
first level. The scope of the eligibility criteria is not
necessarily the same as that of the exclusion clauses.
14 Ibid., at p. 405.
15 Ibid., at p. 418.
For example, paragraph 46.01(1)(e) refers to para
graph 19(1)(j), which reads as follows:
19. (1) No person shall be granted admission who is a
member of any of the following classes:
(j) persons who there are reasonable grounds to believe have
committed an act or omission outside Canada that consti
tuted a war crime or a crime against humanity within the
meaning of subsection 7(3.76) of the Criminal Code and
that, if it had been committed in Canada, would have consti
tuted an offence against the laws of Canada in force at the
time of the act or omission.
There is a marked distinction between paragraph
19(1)(j) of the Act and Section F of Article 1 of the
Convention. Paragraph 19(1)(j) is more limited since
it refers to "a war crime or a crime against humanity
within the meaning of subsection 7(3.76) of the
Criminal Code and that, if it had been committed in
Canada, would have constituted an offence against
the laws of Canada in force at the time of the act or
omission" [underlining added]. Paragraph (a) of Sec
tion F is wider since it deals, inter alia, with "a crime
against peace, a war crime, or a crime against human
ity, as defined in the international instruments drawn
up to make provision in respect of such crimes". 16
Even assuming that the standard of guilt applicable in
Canadian law is the same as that in these interna
tional instruments—as to which I express no opin-
ion 17 —paragraph 19(1)(j) requires that the crime he
an offence in Canada at the time it was committed. In
my view, the fact that a claimant has successfully met
the limited test of eligibility is no guarantee that, if
his claim discloses credible evidence of exclusion, it
must necessarily proceed to the second level. How,
for example, might one refer to the second level the
16 However, it should be noted that the definition of a
"crime against humanity" contained in s. 7(3.76) of the Crimi
nal Code [R.S.C., 1985, e. C-46 (as am. by R.S.C., 1985 (3rd
Supp.), c. 30, s. 1)] is similar to the definition contained in the
Charter of the International Military Tribunal reproduced in the
Handbook on Procedures and Criteria for Determining Refu
gee Status, Annex V, Office of the United Nations High Com
missioner for Refugees, Geneva, 1979. See also The Charter
and Judgment of the Nurnberg Tribunal: History and Analysis,
Appendix 11, United Nations General Assembly—International
Law Commission, 1949 (A/CN. 4 / 5 of March 3, 1949).
17 See as to this the comments of MacGuigan J.A. for the
Court in Ramirez v. Canada (Minister of Employment and
Immigration), [1992] 2 F.C. 306 (C.A.).
case of a claimant convicted by an international mili
tary tribunal for a crime against humanity committed
before the sections creating such a crime were incor
porated into the Canadian Criminal Code? 18 Is such a
person by definition not excluded from the definition
so that his claim can contain no credible basis?
Subsection 69.1(5) of the Act 19 does not alter the
matter in any way. I do not think any other inference
can be drawn from this than was noted by Pratte J.A.
in Mileva [at pages 404-405]:
Subsection 69.1(5), relied on by counsel for the applicant, has
nothing to do with this. It only indicates the cases in which the
Minister is entitled, at a hearing on a refugee status claim, to
cross-examine witnesses and make representations. There is no
such provision applicable to hearings of the adjudicator and
member of the Refugee Division because the latter are always,
under subsection 46(3) [as am. idem, s. 14], required to "afford
the claimant and the Minister a reasonable opportunity to pre
sent evidence, cross-examine witnesses and make representa
tions with respect to those matters".
I conclude that in the case at bar the first level tri
bunal in exercising its jurisdiction should have deter
mined whether there was credible or trustworthy evi
dence tending to exclude the claimant for one of the
grounds mentioned in Sections E and F of Article 1
of the Convention. Once the credible evidence was
accepted, it should have referred the matter to the
Refugee Division if it considered that the Refugee
Division might on hearing the case conclude that the
respondent's claim was valid. It should have dis
missed the claim if it thought that, on that evidence, it
was impossible for the Refugee Division to conclude
that the respondent's claim was valid.
18 S. 7(3.76) of the Canadian Criminal Code came into
effect on September 16, 1987 (R.S.C., 1985 (3rd Supp.), c. 30,
s. 1; S.C. 1987, c. 37, s. 1).
i9 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 invol
ving 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.
I would have allowed the application, set aside the
decision rendered on May 16, 1991 by the tribunal
consisting of an adjudicator and a member of the
Refugee Division and returned the matter to be rede-
termined by a different tribunal created in accordance
with the reasons I have just stated.
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.