T-4944-79
Dorothy Afua Taabea (Applicant)
v.
Refugee Status Advisory Committee, Minister of
Employment and Immigration, Canada, and Immi
gration Appeal Board (Respondents)
T-4945-79
Samuel Badu Brempong (Applicant)
v.
Refugee Status Advisory Committee, Minister of
Employment and Immigration, Canada, and Immi
gration Appeal Board (Respondents)
Trial Division, Smith D.J.—Winnipeg, November
1, 1979 and February 5, 1980.
Immigration — Applications to prohibit Immigration
Appeal Board from proceeding with applications for redeter-
mination as to Convention refugee status until Minister's
reasons are given to the applicants — Whether Minister must
supply reasons to applicants — Whether applicants have been
fairly treated — Immigration Act, 1976, S.C. 1976-77, c. 52,
ss. 45, 70, 71.
The applicants, husband and wife, applied for orders of
prohibition, prohibiting the respondent Immigration Appeal
Board from proceeding with the consideration of applications
for a redetermination of claims made by the applicants that
they are Convention refugees until they have received from the
Minister the reasons for his determination that they are not
Convention refugees and until they have had an opportunity to
submit to the Refugee Status Advisory Committee and subse
quently to the Board a response to the Minister's objections.
Counsel for the applicants relied on the principle that an
official conducting an administrative inquiry, but not acting in
a judicial or quasi-judicial capacity, though not bound by the
rules applicable to judicial proceedings is nevertheless bound to
act fairly toward persons who are the subject of the inquiry. In
this case counsel submitted that the applicants were not treated
fairly in that the Registrar of the Refugee Status Advisory
Committee refused to give them the Minister's reasons for
deciding that the applicants were not Convention refugees and
as a result of the unfairness the decisions of the Minister are
void, and there is, consequently, nothing to be redetermined by
the Immigration Appeal Board. The respondent Minister sub
mitted that his reasons will not be before the Board when it
considers whether the applications for redetermination should
be permitted to proceed. All that is required is a copy of the
transcript of the examination before the senior immigration
officer and a declaration by the applicants setting out their
representations. Therefore the non-delivery of the Minister's
reasons cannot prejudice the applicants before the Board and
thus no unfair treatment of the applicants can be said to arise
from it.
Held, the applications are allowed in part and there will be
an order that the Minister deliver to the applicants, in writing,
the reasons for his decisions. The Minister's decisions are not
void as submitted by the applicants. The duty of the Board, if
the applications for redetermination are allowed to proceed, as
stated in section 71(3) of the Immigration Act, 1976 is to
determine "whether or not a person is a Convention refugee"
and to "in writing, inform the Minister and the applicant of its
decision." Until the Board makes a decision one way or the
other, the Minister's decision stands. The fact that the Act does
not require the Minister to inform a claimant of the reasons for
his decision does not mean that he is prohibited from doing so.
The grounds for refusing the request for the Minister's reasons
are not statutory. The refusal to give the applicants the Minis
ter's reasons for his decisions that they were not Convention
refugees amounts to unfair treatment that may prejudice the
possibility of their having a full and fair redetermination
hearing, or even any redetermination hearing at all.
APPLICATIONS.
COUNSEL:
D. Matas for applicants.
C. Henderson and C. Morrison for respond
ents.
SOLICITORS:
D. Matas, Winnipeg, for applicants.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment
rendered in English by
SMITH D.J.: These are applications for orders of
prohibition prohibiting the respondent Immigra
tion Appeal Board from proceeding with the con
sideration of applications made by each of the
applicants for a redetermination of claims made by
the applicants that each of them is a Convention
refugee until, in each case, certain things have
happened, viz.:
(a) The Applicant has received the reasons from the Respond
ent Minister of Employment and Immigration for the
determination by the Minister that the applicant is not a
convention refugee.
(b) He has had an opportunity to submit to the Respondent
Refugee Status Advisory Committee his response to what
is alleged against his claim by the Minister in the Minis
ter's reasons.
(c) The Refugee Status Advisory Committee has advised the
Minister, on the basis of the response of the applicant to
what is alleged against his claim, whether or not the
applicant is a convention refugee.
(d) The Minister has finally determined, on the basis of this
advice, whether or not the applicant is a convention
refugee.
(e) The Minister, if this final determination is that the appli
cant is not a convention refugee, has given reasons for this
final determination.
(f) The Applicant has had an opportunity to submit to the
Respondent Immigration Appeal Board, a response to the
objections to his claim raised by the Minister in the
reasons for his final determination, should that final deter
mination be that the applicant is not a convention refugee.
or for such other order as may seem just.
The applicants are husband and wife, and in so
far as these motions are concerned the applications
are on all fours. The two motions were heard
together and this decision applies equally to both
of them.
The facts are not in dispute. They are well set
out in identical affidavits of the applicants with
attached exhibits, filed in support of the applica
tions, and in a sworn Appendix attached to each
affidavit. Each Appendix contains a statement of
the nature of the applicant's claim, a list of facts
relied on and a summary of information and evi
dence which the applicant desires to offer.
It is not my function, on this motion, to decide
whether the applicants, or either of them, is a
Convention refugee. My duty is to decide whether,
in the circumstances, the order of prohibition
asked for should be granted. In relation to this
issue the relevant facts may be summarized as
follows.
The applicants are both citizens of Ghana, in
Africa. The male applicant was a teacher at Bere-
kum Methodist Middle B school in Ghana from
1970 to 1976. From 1969 to 1972 he was secretary
to the local association of the Progress Party of
Berekum City. During those years the Progress
Party was the government party of Ghana. The
Prime Minister was Dr. K. A. Busiah, who is a
cousin of this applicant. In 1972 there was a
military takeover of the Ghanaian government.
According to the male applicant's affidavit, fol
lowing the military takeover, Progress party mem
bers began to be arrested, first those who had been
Cabinet Ministers, then persons who had been
members of Parliament, then presidents and secre
taries of constituencies, and finally, in 1976, presi
dents and secretaries of local associations. In Octo-
ber, 1976, having learned that arrests of
secretaries of local associations had begun, this
applicant and another teacher obtained permission
to teach in the Ashanti region of Ghana. This
applicant went to Asokore to seek a teaching
position. Shortly afterward he was advised of
several arrests of local association officials in
nearby towns. In fear of arrest he fled to Kumasi.
He moved about until February 1977, when he
departed for Canada, arriving here on
February 19.
The female applicant ran a dressmaking shop in
Berekum. When her husband left Ghana in flight
from the authorities, she remained behind. In
November 1977, a government policeman came to
her shop to ask where her husband was. She knew
of political refugees whose relatives had been
detained until the fugitives themselves were arrest
ed. Fearing that she might be arrested and
detained until her husband had been located, she
left Ghana with her two children and came to
Canada on January 19, 1978. A third child has
been born in Canada.
On March 22, 1979 an inquiry was held to
determine whether the applicants had a right to
remain in Canada. They both claimed that they
were Convention refugees. The Adjudicator, Kevin
Flood determined that, but for the claims to
refugee status, removal orders or departure notices
would be made or issued against them. He
adjourned the inquiry so that, in accordance with
the Immigration Act, 1976, S.C. 1976-77, c. 52,
the applicants could be examined by a senior
immigration officer respecting their claim to
refugee status.
On March 26, 1979, both applicants were exam
ined under oath by G. J. Komar, a senior immigra
tion officer, who advised them by letter dated
April 10, 1979, that the transcript of their exami
nation had been forwarded to the Refugee Status
Advisory Committee.
On September 13, 1979, G. T. Garvin, Registrar
to the Refugee Status Advisory Committee, wrote
each of the applicants stating in each case that the
Minister of Employment and Immigration had
determined that the applicant was not a Conven
tion refugee. These letters reached the applicants
enclosed with letters from Mr. Komar dated Sep-
tember 24, 1979.
On September 27, 1979 both applicants made
written applications to the Immigration Appeal
Board, under section 70(1) of the Immigration
Act, 1976, for redetermination of their claims.
On September 28, 1979, Mr. Matas, counsel for
the applicants wrote the Registrar of the Refugee
Status Advisory Committee asking of the Commit
tee in each case, as follows:
That the Committee
1. Provide him(her) with the Minister's reasons
for determining that the Applicant was not a
Convention refugee.
2. Give him(her) an opportunity to submit to
the Committee his(her) response to the objec
tions to his(her) claim for Refugee Status raised
by the Minister in his reasons.
3. Advise the Minister, on the basis of this
response whether he(she) is a Convention
refugee.
4. Provide him(her), should the Minister finally
determine that he(she) is not a Convention
refugee, with the reasons for this final
determination.
A copy of this letter is attached as Exhibit "B"
to the affidavit of the male applicant.
By letter dated October 11, 1979, a copy of
which is Exhibit "C" to the same affidavit, the
Registrar replied to Mr. Matas' letter, refusing the
request for the Minister's reasons, stating:
The Immigration Act, 1976 does not require that a claimant
to refugee status, pursuant to Section 45, be informed of the
reason for the Minister's determination.
On October 12, 1979 the originating notices of
the motion heard by me were filed on behalf of the
applicants. Other proceedings have also been com
menced by them, as follows:
1. Notices of Appeal to the Federal Court of Appeal, against
the Minister of Employment and Immigration, pursuant to
Section 28 of The Federal Court Act, to review and set aside
the decisions of the Minister determining that the Applicants
were not Convention Refugees. These notices of Appeal were
filed in the Federal Court on October 2, 1979.
2. Actions in the Trial Division of the Federal Court, by the
Applicants against The Refugee Status Advisory Committee,
the Minister of Employment and Immigration and The Attor-
ney-General of Canada asking for Orders of Mandamus
against the first two named Defendants and a Declaration
against the Attorney-General concerning the rights claimed on
behalf of the Applicants.
At the hearing on the present motions counsel
for the applicants has relied heavily on the princi
ple, now well established, that an official who is
charged with the duty of conducting an adminis
trative inquiry, but is not acting in a judicial or
quasi-judicial capacity, though not bound by all
the rules applicable to judicial proceedings, nor
even by all the rules of natural justice, is neverthe
less bound to act fairly toward persons who are the
subject of the inquiry. Where the official does not
act fairly his decision cannot stand. Counsel sub
mits that in these two cases the applicants have not
been treated fairly, that as a result of this unfair
ness the decisions of the Minister are void, and
consequently there is nothing to be redetermined
by the Immigration Appeal Board.
The whole of this argument rests on the claim
that the applicants have been unfairly treated,
which is not admitted by the respondents. I there
fore deem it necessary to state what the claim
consists of.
There is no evidence before me, and no argu
ment has been presented that suggests there was
any unfairness in the initial inquiry conducted by
the Adjudicator, Kevin Flood, nor in the arrange
ments for or conduct of the examination of the
applicants by the senior immigration officer, G. J.
Komar, concerning their claim to refugee status.
Again there is no evidence or allegation of unfair
ness on the part of the Refugee Status Advisory
Committee in its review of the matter, or of
unfairness in the review by the Minister or in the
manner in which the Minister came to his deci-
sions. The only claim of unfairness is that, after
the Minister's determination that the applicants
were not Convention refugees had been com
municated to the applicants, the Registrar of the
Refugee Status Advisory Committee refused to
give them the Minister's reasons for his decisions.
In my view, on these facts I cannot agree that
the Minister's decisions are void. They stand, sub
ject to what may result from the redetermination
application, the section 28 appeal to the Federal
Court of Appeal, or the Trial Division action. I
hasten to add that my opinion on this point does
not mean that the question of unfairness has been
disposed of.
The statutory rules governing applications under
section 70 for redetermination of a decision of the
Minister that a claimant is not a Convention
refugee do not make certain that an application
will be allowed to proceed to a hearing. No doubt
this fact was one reason why in this instance the
applicants have not relied solely on the process of
redetermination, but have also launched a section
28 appeal to the Federal Court of Appeal and
begun an action in the Trial Division of that
Court.
Section 70(2) sets out the material that is to be
sent to the Immigration Appeal Board along with
an application for redetermination. Section 71(1)
then provides:
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.
From the wording of this subsection it seems
clear that, at the time when the Board considers
the application and decides whether or not to allow
it to proceed, neither the applicant nor anyone on
the applicant's behalf is present, so that nothing
can be added to the written material that is in the
Board's possession. I am sure the power of sum
mary rejection of the application is designed to
avoid the Board being required to spend time
hearing many applications that have no hope of
success. From an administrative point of view this
is a desirable objective, but there can be no guar
antee that a decision by the Board not to allow an
application for redetermination to proceed will
always be right. Any person who believes his
application has merit may well feel that he has
been unfairly dealt with if it is rejected without an
opportunity being afforded him to be heard in
support of it. This unfortunate result, though not
intended, is quite possible under the subsection. In
that event the applicant might be left with only the
limited right of review to the Federal Court of
Appeal under section 28 of the Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, and even that may
not be available under the terms of the section.
A more important question is whether in the
present case fair treatment requires that the appli
cants be given the Minister's reasons for his deci
sions that they are not Convention refugees. On
behalf of the Minister it is submitted that the
Minister's reasons will not be before the Board
when it considers whether the applications for
redetermination should be permitted to proceed.
All that is required by section 70(2) is that a
written application for redetermination be made to
the Board, accompanied by a copy of the tran
script of the examination under oath before the
senior immigration officer (in this case G. J.
Komar), and that the application 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;
(c) 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.
No mention is made in these requirements of the
Minister's reasons for his decision. The intention
appears likely to be that when the Board is consid
ering the application in order to decide whether it
will be allowed to proceed, the Board will have
before it the same information and sworn evidence
as was before the Refugee Status Advisory Com
mittee and subsequently before the Minister, and
nothing else except the adverse decision of the
Minister and such additional representations as
have been made by the applicant. If this is in fact
the situation that will obtain in the present
instance, the only material before the Board will
be information, evidence and submissions made by
or on behalf of the applicants. Assuming that this
will be the situation, it is submitted on behalf of
the respondents that the non-delivery of the Minis
ter's reasons cannot prejudice the applicants before
the Board, and thus no unfair treatment of the
applicants can be said to arise from it. There is
much force in this submission.
Counsel for the applicants contends that what is
said in the preceding paragraph does not, or at
least may not tell the whole story. It is possible
that the Refugee Status Advisory Committee or
some of its members may have received from other
sources information relevant to the applicants'
claim to refugee status. The same is true of the
Department, including the Minister. On this point
it occurs to me that the original inquiry before the
Adjudicator may have had its origin in informa
tion coming to the Department in this way. There
is no evidence before me, nor is it alleged, that
relevant information, not given by or on behalf of
the applicants and not disclosed to them, was in
the possession of the Department, the Refugee
Status Advisory Committee or the Minister, but if
it exists and is capable of being prejudicial to the
applicants' claim, it would be my view that they
should have been given an opportunity to answer
it. I do not know what the policy of the Depart
ment is on this matter.
If information such as I have just discussed was
in the possession of the Refugee Status Advisory
Committee or of the Minister and if it influenced
the Committee's advice to the Minister or affected
the Minister's decisions in these two claims to
refugee status, it is likely that the Minister's rea
sons for his decisions would contain some reference
to it. In that event, possession of a copy of those
reasons might be of considerable importance to the
applicants, notwithstanding that they are not
included in the documents the applicants are
required to send to the Immigration Appeal Board
along with their applications for redetermination.
Counsel for the applicants filed a well
researched and reasoned argument in support of a
submission that, though called a redetermination,
the hearing before the Immigration Appeal Board
is, in effect, an appeal against the Minister's deci
sions. I do not consider it necessary for me to deal
with this submission. The duty of the Board, if the
application for redetermination is allowed to pro
ceed, as stated in section 71(3) is to determine
"whether or not a person" (in this case each of the
applicants) "is a Convention refugee" and to "in
writing, inform the Minister and the applicant of
its decision." In my view, until the Board makes a
decision one way or the other, the Minister's deci
sion stands.
The Board knows that the Minister has made a
decision adverse to the applicant's claim to refugee
status, which fact, though not so intended, may in
itself have some influence on the Board's decision.
Again, I note that, though the likely intention
seems to be that the Minister's reasons for his
decision will not be before the Board, there is no
prohibition to that effect. The fact is that section
70(2) speaks only of the things the applicant is to
file with the Board. Only if and when the Board
has decided to allow the application to proceed to
a hearing is there any reference to the Minister,
and then all that is stated is found in section 71(2),
which simply provides that the Minister is to be
notified of the time and place of the hearing and
afforded a reasonable opportunity to be heard. In
view of the purpose of the hearing, a matter on
which the Minister has previously given a decision,
the words, "afford the Minister a reasonable op
portunity to be heard", seem to indicate that the
Minister, if he wishes to do so, will be permitted to
give the reasons for his decision. They may even
mean that he will be expected to do so. Under
these circumstances it can scarcely be said that the
Minister's reasons will not be before the Board. If
it happens that they are before the Board, the
applicant will be entitled to reply thereto, and in
order that he may have a fair opportunity to do so,
he should have those reasons in his possession far
enough in advance of the hearing that he will have
time to consider them, to decide the nature of the
reply he wishes to make and to prepare it. Other
wise the applicant will not have been treated fairly.
This reasoning applies to the two applicants we are
concerned with in the present case.
The reason for refusing to give the applicants in
this case the Minister's reasons for his decision are
not clear. As mentioned earlier in these reasons the
Registrar's letter of October 11, 1979 stated that
the Immigration Act, 1976 does not require that a
claimant to refugee status be informed of the
reason for the Minister's determination. The bal
ance of the letter reads:
Under Section 70 of the Immigration Act, 1976, your client
may make an application to the Immigration Appeal Board for
a redetermination of his claim. Section 71(4) then provides for
the Board to give its reason for its determination.
While the Minister, the Honourable Ron Atkey, has stated
that his reasons should be made available to claimants, there
have not yet been any policy directions in this regard.
I am sorry that I cannot accede to your request.
The fact that the Act does not require the
Minister to inform a claimant of the reasons for
his decision does not mean that he is prohibited
from doing so. The grounds for refusing the
request for the Minister's reasons are not statu
tory. The above quoted paragraphs from the Reg
istrar's letter indicate to me that the refusal is a
matter of policy and is probably related to the
provision in section 71(4), which provides that the
Board, where it has made a redetermination as to
whether or not a person is a Convention refugee,
may, and at the request of the applicant or the
Minister shall, give reasons for its determination.
This provision does not serve the same purpose
as would be served by delivery of the Minister's
reasons to the applicant before the Board considers
the application for redetermination. It is true that
the applicant may have an appeal from the Board's
decision to the Federal Court of Appeal under
section 28 of the Federal Court Act, but the scope
of such an appeal, if it exists in this type of case, is
quite limited, whereas the Board, under section
59(1) of the Immigration Act, 1976, has "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...." In the present
case, if the determination of the Board is that the
applicants are not Convention refugees, it has
already been determined by the Adjudicator,
Kevin Flood, that removal orders or departure
notices would be made or issued against them. The
situation clearly falls within section 59(1) of the
Immigration Act, 1976.
In my view, a problematical right to a limited
appeal from the Board to the Federal Court of
Appeal does not compensate for the applicants not
having, and therefore not being in a position to
answer before the Board, the reasons of the Minis
ter for his decision. It does not assure that the
applicants will be fairly dealt with.
In my opinion the long established rule in judi
cial proceedings that justice must not only be done
but must appear to be done, may be paraphrased
for cases where the requirement is simply that of
fair dealing, by saying that in such cases not only
must the persons involved be dealt with fairly but
it must be apparent that they are being so dealt
with.
After reviewing all the facts and circumstances
that are before me on these applications it is my
opinion that the refusal to give the applicants the
Minister's reasons for his decisions that they were
not Convention refugees amounts to unfair treat
ment that may prejudice the possibility of their
having a full and fair redetermination hearing, or
even any redetermination hearing at all. At the
very least it is not clear that the refusal does not
amount to unfair treatment in that respect. Fur
ther there is no evidence that giving the Minister's
reasons to applicants in cases of claims to refugee
status would cause such inconvenience to the
Department as would justify giving priority to the
Department's administrative convenience over the
applicants' right to fair treatment.
In the result the applicants are entitled to the
relief asked for in paragraphs (a) and (f) of their
originating notices of motion. They are not entitled
to the relief asked for in paragraphs (b) to (e)
inclusive, because the unfair treatment in respect
of which relief is being sought occurred after the
Minister had made his decisions that the appli
cants were not Convention refugees. Those deci
sions were final. There will be an order according-
ly. In order that the relief granted may be effective
there will be an order that the Minister send or
deliver to the applicants, in writing, the reasons for
those decisions.
The applicants are entitled to costs of these
applications.
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.