A-479-89
Vahe Salibian (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
and
Attorney General of Canada (Mis - en - cause)
INDEXED AS: SAURIAN V. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION) (C.A.)
Court of Appeal, Hugessen, MacGuigan and
Decary, JJ.A.—Montreal, May 17; Ottawa, May
24, 1990.
Immigration — Refugee status — S. 28 application to
review Refugee Division decision dismissing claim to refugee
status as lacking credible basis — Definition of "Convention
refugee" — Applicant, citizen of Lebanon, testified feared
persecution as Armenian and Christian — Claim dismissed on
finding applicant not personally target of persecution but
victim same as all other Lebanese citizens — Refugee Division
erred in requiring applicant to show personally target of
reprehensible acts directed against him in particular — Did
not have to show persecuted in past or would be persecuted in
future — Claimant can show fear resulting from reprehensible
acts committed or likely to be committed against members of
groups to which belonged (Christians and Armenians) — Civil
war not obstacle to claim provided fear not that felt indis
criminately by all citizens, but by claimant himself by a group
with which associated or even by all citizens due to risk of
persecution based on one of the reasons stated in Convention
refugee definition — Fear felt must be of reasonable possibili
ty claimant will be persecuted if returns to country of origin.
Federal Court jurisdiction — Appeal Division — Immigra
tion — Claim to refugee status — Whether jurisdiction in
F.C.A. to review Refugee Division decision applicant not
refugee and finding claim lacked credible basis — Immigra
tion Act, s. 82.3 permitting appeal to F.C.A. except where, as
here, claim found to lack credible basis — Judicial review
normally excluded where appeal available — Privative clauses
interpreted strictly, especially where matter of such impor
tance to individual — Unacceptable Refugee Division could
exclude judicial review by indicating claim lacking credible
basis — Legislation expressly preserving power of review —
As jurisdiction in Court to review finding of no credible basis
at initial stage, legislator would not have intented to exclude
review of similar decision at second stage.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, ss. 28, 29 (as
am. by R.S.C., 1985, (4th Supp.), c. 51, s. 12).
Immigration Act, R.S.C., 1985, c. 1-2, ss. 2(1) (as am. by
R.S.C., 1985 (4th Supp.), c. 28, s. 1), 69.1(12) (as
enacted idem, s. 18), 82.1 (as enacted idem, s. 19),
82.3 (as enacted idem).
CASES JUDICIALLY CONSIDERED
APPLIED:
Rich Colour Prints Ltd. v. Deputy Minister of National
Revenue, [1984] 2 F.C. 246; (1984), 60 N.R. 235 (C.A.);
Re Wah Shing Television Ltd. et al. and Canadian
Radio-television and telecommunications Commission et
al. (1984), 14 D.L.R. (4th) 425 (F.C.T.D.); Cathay
International Television Inc. v. Canadian Radio-televi
sion and telecommunications Commission (1987), 15
C.P.R. (3d) 417; 80 N.R. 117 (F.C.A.); Mojica v. Minis
ter of Manpower and Immigration, [1977] 1 F.C. 458;
(1976), 14 N.R. 162 (C.A.); Seifu v. Immigration
Appeal Board, A-277-82, Pratte J.A., judgment dated
12/1/83, F.C.A., not reported; Adjei v. Canada (Minister
of Employment and Immigration), [1989] 2 F.C. 680;
(1989), 57 D.L.R. 153 (C.A.); Darwich v. Minister of
Manpower and Immigration, [1979] 1 F.C. 365; (1978),
25 N.R. 462 (C.A.); Rajudeen v. Minister of Employ
ment and Immigration (1984), 55 N.R. 129 (C.A.).
AUTHORS CITED
Hathaway J. The Law of Refugee Status, "The Determi
nation of Refugee Claims Grounded in Generalized
Oppression", to be published by Butterworths and Co.
(Canada) Ltd.
COUNSEL:
Denis Buron for applicant.
Joanne Granger for respondent.
SOLICITORS:
St-Pierre, Buron et Associes, Montreal, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following is the English version of the
reasons for judgment rendered by
DECARY J.A.: The application made to this
Court under section 28 of the Federal Court Act
[R.S.C., 1985, c. F-7] raises two questions, one as
to the jurisdiction of this Court, and the other, if
applicable, as to interpretation of the definition of
a Convention refugee.
The applicant has claimed refugee status. The
Refugee Division concluded that the applicant was
not a refugee and that his claim lacked a credible
basis. In accordance with the requirements of sub
section 69.1(12) of the Immigration Act [R.S.C.,
1985, c. 1-2 (as am. by R.S.C., 1985 (4th Supp.),
c. 28, s. 18)] ("the Act"), it indicated this latter
conclusion in its decision.
As the applicant has no right of appeal to this
Court under the actual language of subsection
82.3(2) [as enacted by R.S.C., 1985 (4th Supp.),
c. 28, s. 19] of the Act, he relied on subsection
82.1(1) [as enacted idem] of the Act in asking this
Court for leave to have the decision of the Refugee
Division reviewed under section 28 of the Federal
Court Act.
JURISDICTION OF THIS COURT
In granting the application for leave my brother
Pratte J.A. added the following qualification:
This order is made on the assumption, without deciding the
point, that the decision the applicant wishes to challenge may
be the subject of an appeal under section 28 of the Federal
Court Act, despite subsection 83.3(1) of the Immigration Act
(now subsection 82.3(2)); this question will have to be decided
by the Court when it decides on the section 28 application.
In her submission counsel for the Attorney Gen
eral of Canada conceded that this Court has juris
diction, but such a concession on a point of law,
and in particular on the question of jurisdiction,
cannot be binding on the Court or enable it to
avoid proceeding further with the point.
The relevant legislative provisions are as follows:
Immigration Act, subsections 69.1(12), 82.1(1) and 82.3(1)
and (2) [as enacted idem]:
69.1 . . .
(12) If the Refugee Division determines that a claimant is
not a Convention refugee and does not have a credible basis for
the claim to be a Convention refugee, the Refugee Division
shall so indicate in its decision on the claim.
• • •
82.1 (1) An application or other proceeding may be com
menced under section 18 or 28 of the Federal Court Act with
respect to any decision or order made, or any other matter
arising, under this Act or the rules or regulations only with
leave of a judge of the Federal Court — Trial Division or the
Federal Court of Appeal, as the case may be.
• • •
82.3 (1) An appeal lies to the Federal Court of Appeal with
leave of a judge of that Court from a decision of the Refugee
Division under section 69.1 on a claim or under section 69.3 on
an application, on the ground that the Division
(a) failed to observe a principle of natural justice or other
wise acted beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision, whether or not the
error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of fact
that it made in a perverse or capricious manner or without
regard for the material before it.
(2) Notwithstanding subsection (1), no appeal lies to the
Federal Court of Appeal from a decision of the Refugee
Division under section 69.1 on a claim, if the Refugee Division,
pursuant to subsection 69.1(12), has indicated in the decision
that the claimant has no credible basis for the claim.
Federal Court Act, subsection 28(1) and section
29 [as am. by R.S.C., 1985 (4th Supp.), c. 51, s.
12]:
28. (1) Notwithstanding section 18 or the provisions of any
other Act, the Court of Appeal has jurisdiction to hear and
determine an application to review and set aside a decision or
order, other than a decision or order of an administrative
nature not required by law to be made on a judicial or
quasi-judicial basis, made by or in the course of proceedings
before a federal board, commission or other tribunal, on the
ground that the board, commission or tribunal
(a) failed to observe a principle of natural justice or other
wise acted beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or
not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of fact
that it made in a perverse or capricious manner or without
regard for the material before it.
. . .
29. Notwithstanding sections 18 and 28, where provision is
expressly made by an Act of Parliament for an appeal as such
to the Court, to the Supreme Court, to the Tax Court of
Canada, to the Governor in Council or to the Treasury Board
from a decision or order of a federal board, commission or
other tribunal made by or in the course of proceedings before
that board, commission or tribunal, that decision or order is
not, to the extent that it may be so appealed, subject to review
or to be restrained, prohibited, removed, set aside or otherwise
dealt with, except to the extent and in the manner provided for
in that Act.
To my knowledge this is the first time that the
question has been raised of this Court's jurisdic
tion to review under section 28 of the Federal
Court Act a decision of the Refugee Division
which, according to the very wording of subsection
82.3(2) of the Immigration Act, is not appealable
to this Court. The question is of even greater
interest as the grounds of appeal stated in subsec
tion 82.3(1) of the Act are the very ones in all
respects set forth as reasons for review in section
28 of the Federal Court Act.'
In view of section 29 of the Federal Court Act
and the judgment of this Court in Rich Colour
Prints Ltd. v. Deputy Minister of National Reve
nue, [1984] 2 F.C. 246, it is clear that in establish
ing a right of appeal to this Court for the same
reasons as those given in section 28 of the Federal
Court Act, the legislator has precluded the review
proceeding contained in the same section (see also
Re Wah Shing Television Ltd. et al. and Canadian
Radio-television and telecommunications Com
mission et al. (1984), 14 D.L.R. (4th) 425
(F.C.T.D.); Cathay International Television Inc.
v. Canadian Radio-television and telecommunica
tions Commission (1987), 15 C.P.R. (3d) 417
(F.C.A.); Mojica v. Minister of Manpower and
Immigration, [1977] 1 F.C. 458 (C.A.)).
The question that arises is whether by, as soon
as it was granted, withdrawing this right of appeal
in cases covered by subsection 69.1(12) of the
Act, the legislator revived the proceeding of review
for this particular case. If in the case at bar we
had only subsections 82.3(1) and (2) of the Act, it
could be argued that the legislator intended to
' Note: I note that the English wording of the grounds stated
in subsections 82.3(1) and 28(1) above are identical, but the
French wording contains a discrepancy, in paragraph (c),
where the word "perverse" is rendered in one case by
"absurde" and in the other by "abusive". This would appear to
be a stylistic discrepancy due probably to a failure to check the
official versions of the legislation in question against each
other.
remove any right of appeal or review in cases
covered by subsection 69.1(12): by using for the
appeal the same grounds it used for review, there
by precluding in accordance with section 29 of the
Federal Court Act any possibility of review, the
legislator could have placed "appeal" and
"review" on the same footing for the purposes of
subsections 82.3(1) and (2) of the Act, and have
successively ruled out, for cases covered by subsec
tion 69.1(12) of the Act, first review and then
appeal.
However, when the question is one of precluding
this Court's general jurisdiction to review certain
decisions of the government, and especially when it
is a question, as would be the case here if this
Court lacks jurisdiction, of precluding any possi
bility of judicial review of a decision so important
for human rights as that made by the Refugee
Division, I consider that this Court must interpret
any provision tending to preclude any form of
judicial review as strictly as possible. Additionally,
I note that in the case at bar all the Refugee
Division has to do is indicate in its decision that
the claim has no credible basis in order to exempt
itself from any judicial review. That would be to
create such an arbitrary power in immigration
matters that I could only resign myself to recog
nizing it if the legislator had indicated its intent in
clear language which was not open to even the
remotest possibility of a contrary interpretation,
and in that case the provisions of the Canadian
Charter of Rights and Freedoms [being Part I of
the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985,
Appendix II, No. 44]] might in any event come to
the assistance of a person who was the victim of
such arbitrary action.
There are two reasons in the case at bar why I
think this was not or could not have been the
legislator's intent. First, in section 82.1 of the Act
the legislator has referred to "An application or
other proceeding [which] may be commenced
under section 18 or 28 of the Federal Court Act"
and it can be assumed that having thus expressly
preserved the Federal Court's power of review in
general terms, the legislator would expressly have
excluded it two sections below if that had been its
intention. Then, as this Court has jurisdiction to
review at the initial stage the conclusion arrived at
by the adjudicator and the member of the Refugee
Division that a claim has no credible basis
(section 46.02 [as enacted by R.S.C., 1985 (4th
Supp.), c. 28, s. 14] of the Act), it would seem to
say the least surprising, in the absence of any clear
indication by the legislator, that the possibility of
an application for review is no longer recognized
when, at the second stage, the Refugee Division,
reversing the conclusion of the first instance tri
bunal, concludes that the claim does not have a
credible basis.
I therefore consider that this Court has jurisdic
tion under section 28 of the Federal Court Act and
subsection 82.1(1) of the Immigration Act to
review the decision of the Refugee Division even
when this is not subject to appeal to this Court
under the language of subsection 82.3(2) of the
Immigration Act.
In view of the conclusion I have arrived at on
this first point, it will be necessary to consider the
second one.
DEFINITION OF CONVENTION REFUGEE
I would first note the definition of "Convention
refugee" as it is given in subsection 2(1) [as am.,
idem, s. 1] of the Immigration Act:
2. (1) ...
"Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for
reasons of race, religion, nationality, membership in a par
ticular social group or political opinion,
(i) is outside the country of the person's nationality and is
unable or, by reason of that fear, is unwilling to avail
himself of the protection of that country, or
(ii) not having a country of nationality, is outside the
country of the person's former habitual residence and is
unable or, by reason of that fear, is unwilling to return to
that country, and
(b) has not ceased to be a Convention refugee by virtue of
subsection (2),
In the case at bar the applicant, a citizen of
Lebanon, claimed Convention refugee status on
the ground that he had reason to fear being per
secuted because of the reasons stated in the above
definition. His testimony, which was not ques-
tinned by the Refugee Division, and the summary
provided by the hearing officer, which the Division
adopted, indicate that the applicant is Armenian
and a Christian and has been the subject of various
incidents connected with the fact of being Armeni-
an and a Christian. After relating these incidents,
the Division rendered the following decision:
According to his testimony his fear results from barriers,
from these various incidents, from his religion, from his social
group, from his political opinions, from his race and from his
nationality. Mr. Salibian's political opinions are to be neutral
and, according to his testimony, Armenian Christians are neu
tral and this facilitates their contacts with West Beirut, which
makes them envied by persons in East Beirut and even ques
tioned at barriers because of their neutrality, religion and place
of birth, but this happens to everyone.
We listened carefully to the plaintiff's testimony and studied
the documents provided. In general we do not doubt the facts
put forward, although there are some contradictions. We con
sider that nothing in the testimony inclines us to think that the
plaintiff himself was personally a target of various groups. He
was the victim of reprehensible actions but these cannot be
regarded as having been directed against him in particular.
At the present time there is in Lebanon a conflict — we
would even say conflicts — which disrupt the lives of all
Lebanese citizens. The plaintiff is a victim just as are all other
Lebanese citizens. We would add that we are aware of the
situation existing in Lebanon, as reported in the documents
submitted to us and in the testimony, and we understand that
after going through the situations which have been described
the plaintiff would like to begin a normal life again, but we are
bound by an Act which we must apply and which contains in
specific wording the definition of what a Convention refugee is.
We have to arrive at the conclusion that the plaintiff does not
meet the criteria contained in that definition. Further, we
consider that your application lacks a credible basis. Accord
ingly, your claim to refugee status is dismissed in accordance
with s. 2(1) of the Immigration Act. [My emphasis.]
In short, the Division concluded that for the
plaintiff to be eligible for refugee status he had to
be personally a target of reprehensible acts direct
ed against him in particular. The Division further
concluded, despite evidence that the plaintiff was a
victim of these acts in his capacity not as a Leba-
nese citizen but as an Armenian and Christian
Lebanese citizen, that the plaintiff was "a victim
in the same way as all other Lebanese citizens
are". This in my opinion is an error of law, in the
first case, and an erroneous conclusion of fact in
the second, drawn without taking into account the
factual evidence available to the Division. This
error of fact is especially significant in the context
of the error of law.
It can be said in light of earlier decisions by this
Court on claims to Convention refugee status that
(1) the applicant does not have to show that he
had himself been persecuted in the past or would
himself be persecuted in the future;
(2) the applicant can show that the fear he had
resulted not from reprehensible acts committed or
likely to be committed directly against him but
from reprehensible acts committed or likely to be
committed against members of a group to which
he belonged;
(3) a situation of civil war in a given country is
not an obstacle to a claim provided the fear felt is
not that felt indiscriminately by all citizens as a
consequence of the civil war, but that felt by the
applicant himself, by a group with which he is
associated, or, even, by all citizens on account of a
risk of persecution based on one of the reasons
stated in the definition; and
(4) the fear felt is that of a reasonable possibility
that the applicant will be persecuted if he returns
to his country of origin (see Seifu v. Immigration
Appeal Board, A-277-82, Pratte J.A., judgment
dated 12/1/83, F.C.A., not reported, cited in Adjei
v. Canada (Minister of Employment and Immi
gration), [1989] 2 F.C. 680 (C.A.), at page 683;
Darwich v. Minister of Manpower and Immigra
tion, [1979] 1 F.C. 365 (C.A.); Rajudeen v. Min
ister of Employment and Immigration (1984), 55
N.R. 129 (C.A.), at pages 133 and 134).
The impugned decision falls squarely within the
line of authority described by Prof. Hathaway 2 as
follows:
In view of the probative value of the experiences of persons
similarly situated to a refugee claimant, it is ironic that
Canadian courts historically have shown a marked reluctance
to recognize the claims of persons whose apprehension of risk is
2 In a chapter titled "The Determination of Refugee Claims
Grounded in Generalized Oppression", included in a text titled
The Law of Refugee Status, to be published shortly by Butter-
worths and Co. (Canada) Ltd. with the aid of the Canadian
Law Information Council.
borne out in the suffering of large numbers of their fellow
citizens. Rather than looking to the fate of other members of
the claimant's racial, social, or other group as the best indicator
of possible harm, decision makers have routinely disfranchised
refugees whose concerns are based on generalized group-
defined oppression.
and I adopt this description of the applicable law
to be found at the end of the aforementioned
article:
In sum, while modern refugee law is concerned to recognize
the protection needs of particular claimants, the best evidence
that an individual faces a serious chance of persecution is
usually the treatment afforded similarly situated persons in the
country of origin. In the context of claims derived from situa
tions of generalized oppression, therefore, the issue is not
whether the claimant is more at risk than anyone else in her
country, but rather whether the broadly based harassment or
abuse is sufficiently serious to substantiate a claim to refugee
status. If persons like the applicant may face serious harm for
which the state is accountable, and if that risk is grounded in
their civil or political status, then she is properly considered to
be a Convention refugee.
In the case at bar the Refugee Division misun
derstood the nature of the burden the applicant
had to meet and dismissed his application on the
basis of a lack of evidence of personal persecution
in the past. This conclusion is a twofold error: in
order to claim Convention refugee status, there is
no need to show either that the persecution was
personal or that there had been persecution in the
past.
In the circumstances, therefore, it appears
necessary to return the matter to the Refugee
Division for it to consider the merits of the appli
cant's claim in light of the reasons of the instant
decision and in accordance with the other aspects
of the refugee definition on which it did not have
to rule.
The application should be allowed, the Refugee
Division's decision reversed and the matter
referred back for reconsideration in accordance
with these reasons.
HUG ESSEN J.A.: I concur.
MACGUIGAN J.A.: I concur.
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