A-167-78
Ashfaq Ahmad Sheikh (Appellant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Heald and Urie JJ., Kelly D.J.—
Winnipeg, September 17; Toronto, October 27,
1980.
Judicial review — Immigration — Application to review
and set aside decision of Immigration Appeal Board that
appellant was not a Convention refugee — Whether Board
erred in failing to address itself to the question of hardship,
pursuant to par. 15(1)(b) of Immigration Appeal Board Act —
Application allowed — Immigration Appeal Board Act,
R.S.C. 1970, c. I-3, as amended by S.C. 1973-74, c. 27, s. 4(4),
ss. 7(2)(c), 15(1)(b)(i),(ii) — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
D. Margolis for appellant.
B. Hay for respondent.
SOLICITORS:
Billinkoff, Meltzer, Essers, Goldberg, Kussin,
Margolis & Sinder, Winnipeg, for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: In my view, the Board did not
commit any error reviewable by this Court in
concluding that the appellant was not a refugee
within the definition of the Convention. On the
evidence adduced, such a conclusion was, in my
view, reasonably open to it, and should not be
disturbed by this Court.
I have the further view that the Board did not
err in refusing to admit into evidence various
newspaper articles dealing with the political situa
tion in Pakistan. Paragraph 7(2)(c) of the Immi
gration Appeal Board Act, R.S.C. 1970, c. I-3, as
amended, empowered the Board to receive such
evidence as "it may consider credible or trust-
worthy and necessary for dealing with the subject-
matter before it". After a perusal of the record, I
am unable to say that, in refusing to accept said
newspaper articles, the Board exercised its discre
tion under said paragraph 7(2)(c) improperly.
Coming now to the third ground of objection
advanced by counsel for the appellant, it is my
opinion that this objection is well-founded.
The section of the Immigration Appeal Board
Act applicable to the factual situation here is
paragraph 15(1)(b) which reads as follows:
15. (1) Where the Board dismisses an appeal against an
order of deportation or makes an order of deportation pursuant
to paragraph 14(c), it shall direct that the order be executed as
soon as practicable, except that the Board may,
(b) in the case of a person who was not a permanent resident
at the time of the making of the order of deportation, having
regard to
(i) the existence of reasonable grounds for believing that
the person concerned is a refugee protected by the Conven
tion or that, if execution of the order is carried out, he will
suffer unusual hardship, or
(ii) the existence of compassionate or humanitarian con
siderations that in the opinion of the Board warrant the
granting of special relief,
direct that the execution of the order of deportation be stayed,
or quash the order or quash the order and direct the grant or
entry or landing to the person against whom the order was
made.
On an application such as this from the redeter-
mination of the Minister's refusal to declare the
applicant to be a Convention refugee, the Board is
empowered to grant relief as described in subsec
tion 15(1) having regard to the existence of any
one of the three conditions therein specified:
whether or not the applicant is qualified for such
relief raises three separate issues, each of which
must be considered and decided by the Board.
It may not be necessary, in every case, for the
Board, in its reasons for judgment, specifically to
review the evidence relating to the question of
undue hardship in order to make a finding with
respect thereto. For instance, if, as here the Board
questions the credibility of the appellant in regard
to his claim that he is a Convention refugee and
finds either expressly or by necessary implication
that the lack of credibility applies equally to the
issue of whether he will suffer undue hardship if he
be returned to his country of origin, it has, I
believe, sufficiently applied its collective mind to
that issue.
But the reasons for judgment of the Board must
leave no doubt in a reader's mind that the Board
has directed its attention to each of the said issues
and come to a decision with respect to it.
It seems clear from the Board's reasons that it
directed itself to the question as to whether there
existed in this case such compassionate or humani
tarian considerations as would warrant the grant
ing of special relief as contemplated in subpara-
graph 15(1)(b)(ii). It is also clear that the Board
answered this question in the negative (A.B. p.
169). After asking and answering this question,
the Board then stated (A.B. p. 169) that "The sole
point that remains to be decided is whether or not
the appellant is a refugee protected by the United
Nations Convention Relating to the Status of
Refugees." In so stating the Board was, in my
view, in error. Subparagraph 15(1)(b)(ii) required
the Board firstly to ask and answer the question as
to whether the appellant was a refugee but, addi
tionally, in my view, it required the Board to ask
and answer the question as to whether, if the
deportation order were executed, the appellant
would suffer unusual hardship.
It did not direct itself to this question. It
restricts its finding as to credibility solely to the
issue of whether or not the appellant had satisfied
it that there were reasonable grounds for believing
he could be found to be a Convention refugee. Its
failure to address itself to the question of hardship
is an error in law which in my view, so vitiates the
proceedings, that it resulted in a failure to exercise
the Board's jurisdiction under the statute'.
' Compare: Toan Cong Vu v. Minister of Manpower and
Immigration [1973] F.C. 529. See also: Martin v. Minister of
Manpower and Immigration [1972] F.C. 844.
I would therefore allow the appeal and refer the
matter back to the Board for a rehearing and
redetermination of the appeal on a basis not incon
sistent with these reasons.
* * *
URIE J.: I concur.
* * *
KELLY D.J.: I concur.
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.