A-458-79
Pedro Enrique Juarez Maldonado (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Heald and Ryan JJ. and
MacKay D.J.—Toronto, October 3; Ottawa,
November 19, 1979.
Judicial review — Immigration — Application for review of
decision of Immigration Appeal Board refusing to allow
application for refugee status to proceed — Whether Board
refused to consider evidence regarding well-founded fear of
persecution — Application allowed (MacKay D.J. dissenting)
— Immigration Act, 1976, S.C. 1976-77, c. 52, s. 65(2)(c) —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Maslej v. Minister of Manpower and Immigration [1977]
I F.C. 194, considered.
APPLICATION for judicial review.
COUNSEL:
Paula S. Knopf for applicant.
Thomas James for respondent.
SOLICITORS:
Community and Legal Aid Services Pro
gramme, Toronto, for plaintiff.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: I have reached the conclusion that
the Immigration Appeal Board erred in law in
refusing to allow the application for refugee status
to proceed.
The pertinent facts may be summarized as fol
lows: The applicant, a citizen of Chile, was arrest
ed by the military in Chile in September 1973
almost immediately after the Government of Sal-
vador Allende was overthrown by a military coup.
He was detained for eight days, tortured three
times each day and was accused of using his
position as president of a "social welfare" organi
zation in the hospital where he was employed, to
perform political activities. In September and
again in December of 1973, he was arrested and
beaten approximately five times and was repeated
ly questioned about his political activities and
asked to name other socialist fellow employees.
The applicant left Chile in 1974 for Argentina
where he found employment. In September of
1974, he obtained immigrant status in Argentina.
His family joined him there in 1975. In 1977,
because of political problems between Argentina
and Chile, he felt his family would be safer in
Chile and when his brother wrote to him that he
had arranged the necessary papers to enable him
to travel out of Chile, he sold his property in
Argentina and in February of 1978, he and his
family returned to Chile. He remained in Chile
from sometime in February until March 18, 1978
when he departed for Canada. He deposed that he
did not know precisely how his passport was
obtained by his brother but he understood "that it
was done through his contacts who work in Gov
ernment offices."
The Board then proceeded to give its reasons for
refusing the application to allow to proceed, which
reasons read as follows (Appendix 1, pages 9 and
10):
The Board notes that Mr. Juarez was well settled in Argen-
tina and had received immigrant status before arriving at the
decision to return to Chile. During the time he was in Val-
paraiso, from February to March 18th, 1978, he was never
confronted or arrested by the police. He was able, with the help
of his brother, to obtain a passport on the 16th March, 1978.
Through past experience of almost six years the Board has
acquired the knowledge that to be able to obtain a valid
passport in Chile a person must first apply to the local police
for what is called a certificate of good conduct, then after
obtaining this document and with his I.D. card he has to apply
at the Registry Office for a form and when the passport is
ready the same has to be signed and thumb-printed by the
applicant in front of the proper authority at the Registry
Office. The applicant never had any difficulties in obtaining
any of the documents or the passport.
He purchased his own ticket from the travel agency, routed
Santiago-Toronto-Montreal-Lisbon-Madrid, and on the 18th of
March, 1978 did not encounter any trouble in obtaining an exit
visa from the Chilean police at the airport. It is clear from the
evidence that the authorities were not interested in the appli
cant as they did not take any action against him, perhaps
because he had been out of the country for over four years.
Even when he applied for his first passport in January of 1974
Mr. Juarez had no problems with the authorities.
During the four years in Argentina the applicant had the
opportunity to apply for refugee status or for immigrant status
at the Canadian Embassy. Mr. Juarez testified at page 16 of
the Examination Under Oath that one of his brothers came to
Canada four months before him, another brother on March
13th and his sister arrived a week ago as a refugee. It appears
that the applicant was encouraged by the action of his brother
to leave Argentina and to apply in Canada for refugee status.
The Board in examining the evidence as a whole finds Mr.
Juarez's involvement in politics while in Chile was of a very
minor nature and that on his return to Chile from a lengthy
absence he never encountered any problems with the authorities
and doubts that the applicant's family was visited by the
Military to check his past activities in Argentina and his
whereabouts after his departure for Canada.
The Board appears to infer from the evidence
that, if the applicant had a well-founded fear of
persecution in Chile, he would have remained in
Argentina. In my view, such a conclusion ignores
the evidence to the effect that he felt his family
would be safer in Chile because of the political
problems between Argentina and Chile. I also find
it significant that the applicant did not leave
Argentina until advised by his brother that he had
exit papers enabling him to leave Chile. The Board
also appears to have overlooked the fact that his
passport may not have been obtained routinely
since it was obtained through his brother's con
tacts who work in government offices. Additional
ly, the Board concludes that the authorities were
not interested in the applicant since they took no
action against him on his return and expressed
doubt that his family was visited by the military to
check his past activities in Argentina and his
whereabouts after his departure for Canada. This
conclusion ignores the uncontradicted sworn state
ments of the applicant as set out in paragraph 25
of his declaration (Case, page 28) which read as
follows:
25. Although I thought that my family would be safe in Chile,
my wife wrote to me that the military had begun to visit the
house and to interrogate her and our children about my activi
ties in Argentina and my present whereabouts. She was very
frightened and the health of herself and the children was
suffering. A letter which I had received from my wife was read
into the record of my examination under oath on September 26,
1978 and at that time I expressed my intention to send for my
family as soon as possible. My family arrived in Canada in
December of 1978 and my wife has claimed refugee status
here.
The letter from his wife above referred to is to be
found on pages 20 and 21 of the Case, the perti
nent portion thereof reading as follows:
Dear Pedro:
I hope that you are well and I proceed to tell you that the
children and I are not so well because our nerves are shattered
because the marines come asking for you, and they interrogate
me.
They have asked me to go to them to make me declare.
Including, they asked me if during the four years that you were
in Argentina if you had any political activities because, I don't
know who told them that we had arrived back from Argentina
and it is because of that they are coming to annoy me and I told
them that in Argentina you had worked in a bicycle factory as
a welder.
Now, the children are frightened because they ask them
questions about you also, and this is the only reason why I ask
you that you do not return to Chile because they are going to
take you right away and they are going to kill you, the same
way as they have done with many others.
It is my opinion that the Board acted arbitrarily
in choosing without valid reasons, to doubt the
applicant's credibility concerning the sworn state
ments made by him and referred to supra. When
an applicant swears to the truth of certain allega
tions, this creates a presumption that those allega
tions are true unless there be reason to doubt their
truthfulness'. On this record, I am unable to dis
cover valid reasons for the Board doubting the
truth of the applicant's allegations above referred
to.
I have the further view that the Board's conclu
sion that the applicant's involvement in politics
while in Chile, was of a very minor nature, was not
open to it on a consideration of all of the evidence
pertaining to this matter. The sworn declaration of
the applicant establishes the following:
(a) the applicant has been a registered member
of the Socialist party of Chile since 1967;
(b) he participated actively in the electoral
campaign of Salvador Allende in 1969 and
1970, distributing campaign posters and policy
brochures, and taking part in pro-Allende
demonstrations;
(c) along with other members of his family, the
applicant erected a large picture of Allende, lit
up with coloured lights, on the outside of their
house in downtown Valparaiso, which picture
was observed by most of the townspeople. This
lighted picture was accompanied by a represen-
' See: Villaroel v. Minister of Employment and Immigra
tion, No. A-573-78, reasons dated March 23, 1979 and more
particularly footnote number 6 to the reasons of Pratte J.
tation, two meters high, of Allende's campaign
symbol.
Accordingly, and for all of the above reasons, I
have concluded that this section 28 application
should be allowed, the decision of the Board
should be set aside and the matter referred back to
the Board to be dealt with in a manner not incon
sistent with these reasons.
* * *
RYAN J.: I concur.
* * *
The following are the reasons for judgment
rendered in English by
MACKAY D.J. (dissenting): This is a section 28
application by the applicant, a citizen of Chile, to
review an order of the Immigration Appeal Board
refusing to allow his application for redetermina-
tion of his refugee status to proceed to a full
hearing by the Board.
In 1967 he became a member of the Socialist
party of Chile; he at no time held any office or
position in that party other than being a member.
In 1970 after elections held that year the Social
ist party came into power and formed the
government.
From 1967 until the elections held in 1970 the
applicant took an active part in promoting the
interests of the party.
On September 11, 1973 a military coup over
threw the socialist government. At that time the
applicant was employed in a hospital. On Septem-
ber 13, 1973, he, together with five other
employees of the hospital were arrested by the
military authorities and held for eight days; during
that time they were interrogated and beaten. From
his release after the eight days until December
1973 he claims to have been beaten and interrogat
ed on five occasions.
All of these interrogations were in respect of his
political activities prior to the 1970 elections and
in respect of his activities in a social welfare
organization of the hospital employees. He said
that this organization did not engage in any politi
cal activities.
On January 4, 1974, after obtaining a passport,
which he said he obtained without difficulty, he
went to Argentina. In September 1974 he obtained
immigrant status in Argentina.
In June of 1975 he was joined by his wife and
two children. On February 4, 1978 he returned to
Chile with his wife and children. On March 19,
1978 he came to Canada and claimed refugee
status, leaving his wife and children in Chile.
During his four years in Argentina he was
employed as a welder in a factory. After a military
coup in Argentina in March 1976 he was ques
tioned by the police authorities as to why he had
left Chile and as to whether he had engaged in
political activities in Argentina, but after being
told by his employer that he was a good workman
and was not engaged in political activities the
police no longer bothered him.
On his examination by a senior immigration
officer pursuant to section 45 of the Immigration
Act, 1976, S.C. 1976-77, c. 52, he gave the follow
ing evidence:
Q. When did you first decide to request refugee status in
Canada?
A. Well, I was in Argentina since I had been persecuted in
Chile; on the 4th of January 1974, I arrived in Argentina
since 1 had had problems in Chile because I had belonged
to the socialist party; then I took my family to Argentina
with me and then I returned to Chile because there was a
military government in Argentina and all Chileans were
persecuted.
In his declaration he said that it was because he
feared a war between Chile and Argentina.
His evidence on his examination in respect to his
obtaining a passport and exit visa to leave Chile
was as follows:
Q. Did you encounter any difficulties in leaving Chile to
come to Canada?
A. No, because my relatives had everything ready for me.
Q. What sort of things did they have ready?
A. That is the passport; I had already talked about it in the
Turir Saar, and since 1 had had problems in Chile and I
had problems in Argentina, I was afraid that they would
take me.
Q. Did you have problems obtaining your passport?
A. No.
Q. Did you have any problems obtaining your exit stamp
from Chile?
A. No, because he had obtained it for me, that is the Turir
Saar.
Q. He had obtained what for you; your passport or your exit
stamp?
A. Well, they got the passport and the exit stamp.
(The Turir Saar was a travel agency from whom
he bought his ticket to Canada.)
In his declaration filed with the Board the
claimant said:
1 do not know precisely how my passport was obtained by my
brother but I understand that it was done through his contacts
who work in Government offices.
The passport was examined by the examining
officer at the inquiry, who said it was a regular
passport issued by the Chilean Government.
Also on his examination he gave the following
evidence:
Q. And you went back to Chile after being in Argentina?
A. Yes, I returned on the 4th of February, 1978.
Q. Did anything happen to you once you returned to Chile?
A. No, nothing happened to me.
Q. Did you come in contact with the military when you
returned to Chile?
A. Yes.
Q. In what way?
A. They wanted to know what I had been doing in Argentina
and I said I had gone to work, that I hadn't done any
political activity and they asked me why had I returned to
Chile. I said because of the problems between the two
countries, because it was not known what was going to
happen. That's why I have returned.
After arriving in Canada the applicant claimed
to be a Convention refugee. Section 2(1) of the
Immigration Act, 1976 defines "Convention
refugee" as follows:
"Convention refugee" means any person who, by reason of a
well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or politi
cal opinion, [emphasis added.]
To come within this definition the claimant
must establish that he had a well-founded fear of
persecution at the time he made application for
refugee status. His persecution in Chile had ceased
by December 1973. He had no difficulty obtaining
a passport and leaving Chile to go to Argentina on
January 4, 1974. On his return to Chile on Febru-
ary 4, 1978 he was questioned by the military
authorities on one occasion; other than that he was
not interfered with in any way and was allowed to
leave Chile to go to Canada on March 18, 1978.
In Argentina where he lived until he returned to
Chile on February 4, 1978 he had steady employ
ment, obtained immigrant status, and built a
house. Aside from being questioned by the military
authorities after a military coup in March 1976
(which questioning was stopped after intervention
by his employer), he was not interfered with in any
way while in Argentina.
On the evidence it is clear that the claimant had
no fear of persecution in Argentina. Neither in his
evidence on examination nor in his declaration
does he say that he had any fear of persecution
while he was in Chile in February and March of
1978. He said he came to Canada because he
feared that there might be a war between Chile
and Argentina. Even if that fear was well founded
it would not entitle him to claim refugee status
under the definition of "refugee" because a fear of
war is not persecution for any of the reasons stated
in the definition.
In support of his claim the claimant filed on his
examination a letter from his wife that he received
in July 1978, in which she said she was questioned
by the marines as to her husband's political activi
ties in Argentina. She then said:
Now, the children are frightened because they ask them
questions about you also, and this is the only reason why I ask
you that you do not return to Chile because they are going to
take you right away and they are going to kill you ....
This letter was written after her husband had
been in Canada for some months and at a time
when she knew her husband was applying for
refugee status and had no intention of returning to
Chile. There is no evidence to support a fear on
her part that her husband would be killed if he
returned to Chile. Moreover it is the claimant, not
his wife, who must be found to have a well-found
ed fear of persecution.
Counsel for the applicant submitted that the
Board erred in law in making the following state
ment in their reasons for judgment:
Through past experience of almost six years the Board has
acquired the knowledge that to be able to obtain a valid
passport in Chile a person must first apply to the local police
for what is called a certificate of good conduct, then after
obtaining this document and with his I.D. card he has to apply
at the Registry Office for a form and when the passport is
ready the same has to be signed and thumb-printed by the
applicant ....
I think the Board was entitled to use this infor
mation. It was knowledge obtained in the course of
their duties in hearing sworn evidence as to these
facts in other cases heard by them.
They had personal knowledge, not of the facts,
but of the sworn evidence proving those facts.
The proceedings in respect of refugees are in the
nature of an inquiry, not a trial, and the rules of
evidence applicable to trials do not apply in pro
ceedings before the Board. This is made abundant
ly clear by the provisions of section 65(2)(c) of the
Immigration Act, 1976 which is as follows:
The Board ... may ...:
(c) during a hearing, receive such additional evidence as it
may consider credible or trustworthy and necessary for deal
ing with the subject-matter before it.
If the rules as to the admission of evidence
applicable to trials had been applicable in this
case, the claimant could not have put in the letter
from his wife.
It was hearsay; the writer was not available for
cross-examination and it was selfserving. The
weight, if any, to be given to the statements in the
letter was a matter for the Board to determine.
The facts respecting the issuance of passports in
Chile were particularly relevant to the issue of
credibility.
The claimant gave different versions of how he
got his passport—one, that he got it from his
brother and the other that he obtained both his
passport and exit visa from the travel agent from
whom he bought his ticket. He gave no explana
tion as to when, where, or how his signature,
picture and thumb print got on his passport.
In the case of Maslej v. Minister of Manpower
and Immigration [1977] 1 F.C. 194 Mr. Justice
Urie, speaking for the Court, said at pages 197
and 198:
The second ground of attack by applicant's counsel is based
on the inclusion of the following words by the quorum of the
Board in their reasons for judgment:
It is common knowledge that in Poland there are thousands
upon thousands of Poles of Ukranian origin and surely all
these Ukranians are not in danger of being persecuted.
This submission can be disposed of shortly by the observation
that no tribunal can approach a problem with its collective
mind blank and devoid of any of the knowledge of a general
nature which has been acquired in common with other mem
bers of the general public, through the respective lifetimes of its
members, including, perhaps most importantly, that acquired
from time to time in carrying out their statutory duties. In our
view, the statement made in the Board's reasons for judgment,
of which the applicant complains, falls within that category.
In the present case it is a reasonable inference,
having regard to the fact that the Socialist party
had won the election in Chile in 1970, that a large
proportion of the population were socialists and
they could not all have been persecuted, and while
many of them apparently were persecuted in 1973
the applicant for refugee status must prove that he
as an individual had a well-founded fear of perse
cution in 1978.
The claimant in paragraph 28 of his declaration
said:
When I received the refusal from the Refugee Status Advising
[sic] Committee, I requested a copy of the ... hearing [his
examination] and I had it translated to me.
I realize that there are ambiguities and confusing statements
in the transcript of which I was not aware at the time.
One example of confusing statements is that he
said that he came to Canada to claim refugee
status because of fear of persecution in Chile
because he was a socialist. In another place he said
it was because he feared persecution in Argentina
and in both his examination on oath and his
declaration he said his reason for coming to
Canada was because he feared a war between
Argentina and Chile.
The Board in concluding their reasons, said:
The Board in examining the evidence as a whole finds Mr.
Juarez's involvement in politics while in Chile was of a very
minor nature and that on his return to Chile from a lengthy
absence he never encountered any problems with the authorities
and doubts that the applicant's family was visited by the
Military to check his past activities in Argentina and his
whereabouts after his departure for Canada.
Considering the evidence as a whole, the Board is of the
opinion that there are not reasonable grounds to believe that
the claim could, upon the hearing of the application, be estab
lished and, therefore, refuses to allow the application to proceed
and determines that Mr. Juarez is not a Convention refugee.
I am of the opinion that on the evidence the Board
were entitled to reach this conclusion. For these
reasons and those of the Board I would dismiss the
application.
For convenience I have attached a copy of the
relevant sections of the Immigration Act, 1976,
S.C. 1976-77, c. 52.
STATUTES OF CANADA
1976-1977
Immigration (1976)
Determination of Refugee Status
45. (1) Where, at any time during an inquiry, the person
who is th:, subject of the inquiry claims that he is a Convention
refugee, the inquiry shall be continued and, if it is determined
that, but for the person's claim that he is a Convention refugee,
a removal order or a departure notice would be made or issued
with respect to that person, the inquiry shall be adjourned and
that person shall be examined under oath by a senior immigra
tion officer respecting his claim.
(2) When a person who claims that he is a Convention
refugee is examined under oath pursuant to subsection (1), his
claim, together with a transcript of the examination with
respect thereto, shall be referred to the Minister for
determination.
(3) A copy of the transcript of an examination under oath
referred to in subsection (1) shall be forwarded to the person
who claims that he is a Convention refugee.
(4) Where a person's claim is referred to the Minister
pursuant to subsection (2), the Minister shall refer the claim
and the transcript of the examination under oath with respect
thereto to the Refugee Status Advisory Committee established
pursuant to section 48 for consideration and, after having
obtained the advice of that Committee, shall determine whether
or not the person is a Convention refugee.
(5) When the Minister makes a determination with respect
to a person's claim that he is a Convention refugee, the
Minister shall thereupon in writing inform the senior immigra
tion officer who conducted the examination under oath respect
ing the claim and the person who claimed to be a Convention
refugee of his determination.
(6) Every person with respect to whom an examination
under oath is to be held pursuant to subsection (1) shall be
informed that he has the right to obtain the services of a
barrister or solicitor or other counsel and to be represented by
any such counsel at his examination and shall be given a
reasonable opportunity, if he so desires and at his own expense,
to obtain such counsel.
46. (1) Where a senior immigration officer is informed pur
suant to subsection 45(5) that a person is not a Convention
refugee, he shall, as soon as reasonably practicable, cause the
inquiry. concerning that person to be resumed by the adjudica
tor who was presiding at the inquiry or by any other adjudica
tor, but no inquiry shall be resumed in any case where the
person makes an application to the Board pursuant to subsec
tion 70(1) for a redetermination of his claim that he is a
Convention refugee until such time as the Board informs the
Minister of its decision with respect thereto.
(2) Where a person
(a) has been determined by the Minister not to be a Conven
tion refugee and the time has expired within which an
application for a redetermination under subsection 70(1)
may be made, or
(b) has been determined by the Board not to be a Conven
tion refugee,
the adjudicator who presides at the inquiry caused to be
resumed pursuant to subsection (1) shall make the removal
order or issue the departure notice that would have been made
or issued but for that person's claim that he was a Convention
refugee.
47. (1) Where a senior immigration officer is informed that
a person has been determined by the Minister or the Board to
be a Convention refugee, he shall cause the inquiry concerning
that person to be resumed by the adjudicator who was presiding
at the inquiry or by any other adjudicator, who shall determine
whether or not that person is a person described in subsection
4(2).
(2) Where an adjudicator determines that a Convention
refugee is not a Convention refugee described in subsection
4(2), he shall make the removal order or issue the departure
notice, as the case may be, with respect to that Convention
refugee.
48. (1) There is hereby established a Refugee Status Advi
sory Committee for the purpose of advising the Minister in
respect of any case where a person claims that he is a Conven
tion refugee.
(2) The Minister shall appoint such persons as he considers
appropriate to be members of the Refugee Status Advisory
Committee.
PART IV
APPEALS
Establishment of Board
59. (1) There is hereby established a board, to be called the
Immigration Appeal Board, that shall, in respect of appeals
made pursuant to sections 72, 73 and 79 and in respect of
applications for redetermination made pursuant to section 70,
have 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 or
the refusal to approve an application for landing made by a
member of the family class.
65. (1) The Board is a court of record and shall have an
official seal, which shall be judicially noticed.
(2) The Board has, as regards the attendance, swearing and
examination of witnesses, the production and inspection of
documents, the enforcement of its orders and other matters
necessary or proper for the due exercise of its jurisdiction, all
such powers, rights and privileges as are vested in a superior
court of record and, without limiting the generality of the
foregoing, may
(a) issue a summons to any person requiring him to appear
at the time and place mentioned therein to testify to all
matters within his knowledge relative to a subject-matter
before the Board and to bring with him and produce any
document, book or paper that he has in his possession or
under his control relative to such subject-matter;
(b) administer oaths and examine any person on oath; and
(c) during a hearing, receive such additional evidence as it
may consider credible or trustworthy and necessary for deal
ing with the subject-matter before it.
(3) The Board may, and at the request of either of the
parties to an appeal made pursuant to section 72 or 73 shall,
give reasons for its disposition of the appeal.
Redeterminations and Appeals
70. (1) A person who claims to be a Convention refugee and
has been informed in writing by the Minister pursuant to
subsection 45(5) that he is not a Convention refugee may,
within such period of time as is prescribed, make an application
to the Board for a redetermination of his claim that he is a
Convention refugee.
(2) Where an application is made to the Board pursuant to
subsection (1), the application shall be accompanied by a copy
of the transcript of the examination under oath referred to in
subsection 45(1) and shall contain or be accompanied by a
declaration of the applicant under oath setting out
(a) the nature of the basis of the application;
(b) a statement in reasonable detail of the facts on which the
application is based;
(e) a summary in reasonable detail of the information and
evidence intended to be offered at the hearing; and
(d) such other representations as the applicant deems rele
vant to the application.
71. (1) Where the Board receives an application referred to
in subsection 70(2), it shall forthwith consider the application
and if, on the basis of such consideration, it is of the opinion
that there are reasonable grounds to believe that a claim could,
upon the hearing of the application, be established, it shall
allow the application to proceed, and in any other case it shall
refuse to allow the application to proceed and shall thereupon
determine that the person is not a Convention refugee.
(3) Where the Board has made its determination as to
whether or not a person is a Convention refugee, it shall, in
writing, inform the Minister and the applicant of its decision.
(4) The Board may, and at the request of the applicant or
the Minister shall, give reasons for its determination.
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.