A-284-80
Oscar Manuel Diaz Duran (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Heald J. and MacKay and Kelly
D.JJ.—Toronto, October 8 and 27, 1980.
Judicial review — Immigration — Application to review
and set aside Board's decision — On application for redeter-
mination of refugee claim, Immigration Appeal Board had
before it a copy of a letter advising applicant of Minister's
decision concerning refugee status and the reasons therefor —
Applicant's declaration refers to Minister's decision at least
twice — Whether Board must only consider documents
referred to in subs. 70(2) — Application dismissed — Immi
gration Act, 1976, S.C. 1976-77, c. 52, ss. 45(2), 70(2), 71(1)
— Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Tapia v. Minister of Employment and Immigration
[1979] 2 F.C. 468, distinguished. Leiva v. Minister of
Employment and Immigration A-251-79, distinguished.
APPLICATION for judicial review.
COUNSEL:
I. Bardyn for applicant.
L. Lehmann for respondent.
SOLICITORS:
Bardyn & Zalucky, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: The problem raised by this applica
tion is that the Immigration Appeal Board had
before it, on the application for redetermination
under sections 70 and 71 of the Immigration Act,
1976, S.C. 1976-77, c. 52, in addition to the
transcript of the examination under oath and the
applicant's declaration, as contemplated by subsec
tion 70(2) 1 , a copy of a letter dated February 14,
1980, from the Registrar of the Refugee Status
Advisory Committee to the applicant. In that
letter, the applicant was advised that the Minister
had determined, pursuant to subsection 45(2) of
the Act that he was not a Convention refugee.
Included in that letter were the Minister's reasons
for so deciding.
Counsel for the applicant relies on the Tapia
case 2 and the Leiva case 3 as authority for the
proposition that the Board, at this preliminary
stage, must base its decision solely on a consider
ation of the documents mentioned in subsection
70(2), i.e., the transcript of the examination under
oath and the applicant's declaration.
The declaration contemplated by subsection
70(2) must set out the matters specified in para
graphs (a) to (d) inclusive thereof. In the Tapia
case (supra), the extraneous evidence considered
by the Board was a letter written by a doctor who
had apparently examined the applicant after he
had made his application for redetermination. In
the Leiva case (supra), the extraneous evidence
considered by the Board was the transcript of an
earlier examination under oath permitted under
the 1970 Immigration Act, R.S.C. 1970, c. I-2
which had been repealed.
Said subsection 70(2) reads as follows:
70....
(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;
(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
relevant to the application.
2 Tapia v. Minister of Employment and Immigration [1979]
2 F.C. 468.
3 Leiva v. Minister of Employment and Immigration Court
number A-251-79, July 24, 1979. [No written reasons for
judgment distributed—Ed.]
In the case at bar, the facts are significantly
different. The allegedly extraneous material, as
stated supra, is a letter advising of the Minister's
decision under subsection 45(2) together with his
reasons therefor. It is significant to note that the
applicant's subsection 70(2) declaration refers
directly in at least two paragraphs thereof to the
Minister's decision and the two reasons given by
him for that decision. Paragraph 9 reads as
follows:
9. I have attempted to clarify my political activity on [sic]
Chile as the Minister's decision was based on a statement that
"Because your political activities in Chile were very marginal,
and you were most vague in describing them, your claim to
police pursuit over a period of four and a half years, 1975 to
1979, is simply not credible."
while paragraph 22 reads:
22. I stated that this was my fear on page 17 of my examina
tion under oath, and I believe that the Minister misinterpreted
my fear to be fear of the military service itself, rather than fear
of the military authorities' actions if I reported for service.
Thus, to give effect to the submissions of appli
cant's counsel would result in the Immigration
Appeal Board being required to give due consider
ation to the applicant's declaration which refers,
inter alia, to a portion of the Minister's reasons
while not being able to refer to the Minister's
reasons in their entirety. Such an anomalous result
cannot have been intended. The judgments of this
Court in Tapia and Leiva (supra) refer to addi
tional "evidence". In the case at bar, I do not
consider the Minister's letter to be "evidence" in
the sense that that word is used in Tapia and Leiva
(supra). Therefore, in my view, those cases are
distinguishable from the facts in the case at bar.
The provisions contained in sections 70 and 71 of
the Act are intended, as it seems to me, to provide
an expeditious and summary procedure for appeal
ing the Minister's decision under subsection 45(5)
and for deciding whether or not the applicant's
claim for refugee status should be allowed to
proceed to a full hearing before the Board.
Accordingly, subsection 70(2) specifically limits
the evidence to be placed before the Board for
decision under subsection 71(1). However, includ
ed in the material permitted under subsection
70(2) are the matters covered by paragraph
70(2)(d), i.e., "such other representations as the
applicant deems relevant to the application."
In my view, paragraphs 9 and 22 of the appli
cant's declaration are, in reality, rebuttals or
responses to the Minister's reasons as set out in his
letter. It is therefore the applicant who has
"deemed relevant" and included in his declaration
at least a portion of those reasons. Such being the
case, it seems clear that the Board cannot be
faulted for allowing those reasons in their entirety
to form part of the record before them. To decide
otherwise would place the Board in an impossible
position. They are required by the statute to fully
consider all representations deemed relevant by the
applicant. The applicant has included a portion of
the Minister's reasons in his application and only
by considering those reasons in their entirety can
the Board be in a position to make a proper
decision. Thus, while I have expressed the view
earlier, that the letter containing the Minister's
reasons is not "evidence" in the context of the
Tapia and Leiva decisions (supra), if I am wrong
in this view, if this letter is "evidence", it is
"evidence" properly admissible under subsection
70(2) since it forms part of a representation
deemed relevant by the applicant himself.
For these reasons I have concluded that the
Immigration Appeal Board did not err in law and I
would therefore dismiss the section 28 application.
* * *
MACKAY D.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.