A-524-80
Jim Martin Kwesi Mensah (Applicant)
v.
Minister of Employment and Immigration and the
Immigration Appeal Board (Respondents)
Court of Appeal, Pratte and Urie JJ., MacKay
D.J.—Winnipeg, March 10, 1981.
Judicial review — Immigration — Application to review
and set aside decision of Immigration Appeal Board that
applicant is not a Convention refugee — Whether decision
vitiated by the irregularity of Minister's decision made pursu
ant to s. 45 of the Immigration Act, 1976 — Application
dismissed — Immigration Act, 1976, S.C. 1976-77, c. 52, ss.
45, 71(1), 123 — Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
David Matas for applicant.
Brian Hay for respondents.
SOLICITORS:
David Matas, Winnipeg, for applicant.
Deputy Attorney General of Canada for
respondents.
The following are the reasons for judgment of
the Court delivered orally in English by
PRATTE J.: This is a section 28 application to
review and set aside a decision of the Immigration
Appeal Board, made pursuant to subsection 71(1)
of the Immigration Act, 1976, S.C. 1976-77, c. 52,
determining that the applicant is not a Convention
refugee.
The applicant's main argument was that the
decision of the Board was vitiated by the
irregularity of the decision made by the Minister
pursuant to section 45.
The applicant first said that the Minister's
determination was void by reason of the Minister's
failure, before making his determination, to give
the applicant an opportunity to respond to the
objections that he, the Minister, had to the appli
cant's claim. In order to dispose of that contention,
it is sufficient to say that a careful reading of
sections 45 and following of the Immigration Act,
1976 shows clearly that Parliament did not intend
to subject either the Minister or the Refugee
Status Advisory Committee to the procedural duty
of fairness invoked by the applicant.
The applicant also said that the Minister's
determination was irregular because it had not
been made by the Minister himself but by a person
to whom the Minister had expressly delegated the
power conferred on him by subsection 45(4) of the
Act. This contention fails since that delegation of
power was clearly authorized by section 123.
Another ground of attack of the applicant was
that the Board had failed to consider a request
which he had made that his application to the
Board be stayed until the decision of certain pro
ceedings in the Trial Division. This argument must
also be rejected since this was not a case where the
Board was under any duty to stay or adjourn the
proceedings before it.
The applicant also submitted that the reasons of
the Board disclosed a number of factual and legal
errors. It is not necessary to specify what those
alleged errors were since, in our view, the appli
cant has failed to show that they had, in fact, been
committed by the Board.
Finally, the applicant contended that the reasons
of the Board were so inadequate as to nullify its
decision. As we indicated from the Bench, a mere
reading of the reasons of the Board shows the lack
of merit of that submission.
For those reasons, the application will be
dismissed.
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