T-2845-90
Mehmet and Emine Demirtas (Applicants)
v.
The Minister of Employment and Immigration
(Respondent)
and
The Immigration and Refugee Board (Mis -en-
cause)
INDEXED AS: DEMIRTAS V. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION) (T.D.)
Trial Division, Teitelbaum J.—Montréal, Decem-
ber 10, 1990; Ottawa, July 30, 1991.
Immigration — Practice — Transitional Provisions, s.
41(b)(iii) providing ineligible to have Convention refugee
claims determined by Refugee Division if application for rede-
termination "is to be dealt with by the former Board under
section 48" — Application for redetermination of Convention
refugee claims not heard before January 1, 1990 — Under s.
48(3) former Board losing jurisdiction over applications not
disposed of by December 31, 1989 — Refugee claimants
arriving in Canada before January 1, 1989 not losing right to
credible basis hearing because claims not "dealt with by
former Board" — Intended to be dealt with pursuant to either
Regulations via former Act (now impossible) or Transitional
Provisions, s. 43 or new Immigration Act (Transitional Provi
sions without going through Regulations) — Application of
doctrine of legitimate expectation — Board not having denied
applications, still part of backlog and reasonable to expect
claims would be dealt with pursuant to Regulations — Statu
tory enablement not necessary — No statutory bar to credible
basis hearing before claims determined by Refugee Division.
Judicial review — Prerogative writs — Certiorari — Direc
tor of Immigration Centre refusing request for credible basis
hearing — Refusal constituting decision subject to Federal
Court Act, s. 18 review — Director's decision cause of denial
of credible basis hearing, not Transitional Provisions, s. 48(3)
— Application of legitimate expectation doctrine.
This was an application for certiorari, mandamus and prohi
bition against the refusal to grant a credible basis hearing
before an adjudicator and a member of the Refugee Division.
The applicants arrived in Canada from Turkey in 1986. They
were refused refugee status in 1987 and immediately applied
for redetermination of their claims before the Immigration
Appeal Board (the "former" Board). The hearing was
adjourned several times until they were informed on June 11,
1990 that their cases were pending before the Immigration and
Refugee Board (the "new" Board). The applicants then
requested a credible basis hearing in order to be able to comply
with the Refugee Claimants Designated Class Regulations,
section 3 requirements for eligibility to apply for landing under
the Regulations, which imposed less stringent requirements for
landing. Under paragraph 3(1)(c) of the Regulations, there
must have been a determination that there is a credible basis
for the Convention refugee claim pursuant to (i) subsection
46.01(6) or (7) of the Immigration Act, or (ii) subsection 43(1)
of the Transitional Provisions. The Director of the Canadian
Immigration Centre refused to deal with their cases under the
Regulations, stating that pursuant to section 48 of the Transi
tional Provisions, the former Board was no longer seized of the
applicants' claims and that their claims would be reheard
before the new Board. Subparagraph 41(b)(iii) of the Transi
tional Provisions provides that persons whose applications for a
redetermination of the Convention refugee claim are "to be
dealt with by the former Board under section 48" are not
eligible to have their claims determined by the Refugee Divi
sion. Subsection 48(1) continued the jurisdiction of the former
Board over applications for redetermination commenced before
January 1, 1989, but subsection 48(3) limited the period for the
application of subsection 48(1) to December 31, 1989 after
which applications not disposed of by the former Board would
be "reheard" by either Division of the new Board. The appli
cants did not want the Refugee Division to determine their
refugee claims because a negative finding would result in their
exclusion from the designated class under the Regulations.
They argued that as of January 1, 1990, their claims were no
longer "to be dealt with by the former Board" for it had ceased
to exist and they were entitled to a credible basis hearing by the
Refugee Division. The respondent submitted that subsection
48(3) eliminated the section 41 requirement of eligibility to
have one's claim determined by the Refugee Division and the
requirement of a determination of a credible basis for their
claim. Therefore, the applicants must have their refugee deter
minations heard by the Refugee Division without first having a
credible basis hearing.
The applicants also submitted that they had a legitimate
expectation that their claims would be dealt with pursuant to
the Regulations based on the Minister's "promise" of Decem-
ber 28, 1988 to deal with the "processing of refugee claims not
completed by January 1, 1989" and that "all claims would be
determined by an adjudicator and a member of the Immigra
tion and Refugee Board" and because they were not expressly
excluded from the Regulations, and it was only the respondent's
illegal act which prevented them from fulfilling the require
ments of subsection 3(1) of the Regulations.
The respondent submitted that a writ of certiorari could not
issue because the Director's letter did not constitute a decision
and it was not a decision of a "federal board, commission or
other tribunal" pursuant to section 2 of the Federal Court Act.
It argued that the simple reply to a letter is not the exercise of
"jurisdiction or powers conferred by or under an Act of Parlia
ment." The applicants argued that the Director's response was
an administrative decision or the exercise of a discretionary
power to which Federal Court Act, section 18 applied. The
respondent replied that subsection 48(3) eliminated the require
ment of having a credible basis to one's claim before it is heard
by the Refugee Division.
Held, the application should be granted.
The applicants are eligible for a credible basis hearing.
The applicants did not fall within section 46.01 of the Act,
which sets out Convention refugee claimants who are not
eligible to have their claims determined by the Refugee Divi
sion. Therefore they were eligible to have their claims deter
mined by the Refugee Division, subject to the Transitional
Provisions.
Refugee claimants who arrived in Canada before January 1,
1989 shall be dealt with pursuant to either (1) the Regulations
via (a) the former Act (which is impossible now for the
Immigration Appeal Board no longer exists), or (b) section 43
of the Transitional Provisions or (2) the new Act, which is the
Transitional Provisions without going through the Regulations.
Claimants have a right to a credible basis hearing either way.
Parliament did not intend to take away the opportunity to have
a credible basis hearing from those claimants who had not had
their claims "dealt with" by the former Board.
It was reasonable for the applicants to expect that their
claims would be dealt with under the backlog system for they
were still part of the backlog. The claims had not been "dealt
with" in that the Immigration Appeal Board had not denied
their applications for redetermination. In Bendahmane v.
Canada (Minister of Employment and Immigration), the Court
of Appeal held that the question was not whether there was
statutory enablement, but whether there was a statutory bar
preventing the Minister's compliance. There was no statutory
bar to a credible basis hearing before the Convention refugee
claims are determined by the Refugee Division, for claimants
must normally be eligible to have a credible basis hearing
before having their claims determined by the Refugee Division.
It was as a result of the Director's decision that the appli
cants were denied a credible basis hearing, not subsection
48(3).
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
An Act to amend the Immigration Act and to amend
other Acts in consequence thereof [Transitional Provi
sions], R.S.C., 1985 (4th Supp.), c. 28, ss. 41, 42, 43,
48.
Convention Refugee Determination Division Rules, SOR/
89-103, s. 18(1).
Federal Court Act, R.S.C., 1985, c. F-7, ss. 2, 18.
Immigration Act, R.S.C., 1985, c. I-2, ss. 23(4)(a),
27(4), 28, 44, 46(2), 46.01 (as enacted by R.S.C., 1985
(4th Supp.), c. 28, s. 14).
Refugee Claimants Designated Class Regulations, SOR/
90-40, ss. 3, 4.
CASES JUDICIALLY CONSIDERED
APPLIED:
Bendahmane v. Canada (Minister of Employment and
Immigration), [1989] 3 F.C. 16; (1989), 61 D.L.R. (4th)
313; 26 F.T.R. 122 (note); 8 Imm.L.R. (2d) 20; 95 N.R.
385 (C.A.).
DISTINGUISHED:
Zeybekoglu v. Canada (Minister of Employment and
Immigration), T-2894-90, Joyal J., judgment dated
8 / 5 /91, F.C.T.D., not yet reported.
CONSIDERED:
Russo v. Minister of Manpower & Immigration,
[1977] 1 F.C. 325; (1976), 70 D.L.R. (3d) 118 (T.D.);
Fee et al. v. Bradshaw et al., [1982] 1 S.C.R. 609;
(1982), 137 D.L.R. (3d) 695; 68 C.C.C. (2d) 425; 82
DTC 6160 (Fr.); 82 DTC 6264 (Eng.); 43 N.R. 329;
Attorney-General of Hong Kong v. Ng Yuen Shiu,
[1983] 2 A.C. 629 (P.C.).
COUNSEL:
William Sloan for applicants.
Joanne Granger for respondent.
SOLICITORS:
Sloan, Lanoue, Arpin et Associés, Montréal,
for applicants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
TEITELBAUM J.: The applicants request, pursu
ant to section 18 of the Federal Court Act [R.S.C.,
1985, c. F-7], relief in the form of writs of certio-
rari, mandamus and prohibition against the "deci-
sion" of the respondent refusing the applicants'
request for a credible basis hearing before an
adjudicator and a member of the Refugee Divi
sion. The applicants also claim that they had a
legitimate expectation that their refugee claims
would be dealt with pursuant to the Refugee
Claimants Designated Class Regulations' (herein-
after the "Regulations"), adopted on December
21, 1989. These Regulations allow certain
individuals, whose claims for refugee status have
been determined to have a credible basis, to make
an application for landing without having to leave
Canada and provide an exemption from all but
health and security requirements.
FACTS
The applicants arrived in Canada, from Turkey,
and applied for refugee status on September 12,
1986. An inquiry was held on October 18, 1986,
and adjourned pursuant to subsection 44(1) of the
Immigration Act. 2 On January 27, 1987, the
applicants' examinations under oath took place
and, on September 15, 1987, the Minister deter
mined that they were not Convention refugees.
The applicants applied for a redetermination of
their claims before the Immigration Appeal Board
(the "former" Board) on October 1, 1987. The
hearing before the Immigration Appeal Board was
adjourned upon several occasions, until they were
informed on June 11, 1990, that their cases were
now pending before the Immigration and Refugee
Board (the "new" Board).
1 SOR/90-40.
2 R.S.C., 1985, c. 1-2.
In a letter dated July 4, 1990, addressed to Mr.
Louis Grenier, the Director of the Canadian Immi
gration Centre in Montréal, counsel for the appli
cants requested that they be given the opportunity
to comply with paragraph 3(1)(c) of the Regula
tions, that is, that they be granted a credible basis
hearing before an adjudicator and a member of the
Refugee Division. The Director refused to deal
with their cases under the Regulations, stating
that, pursuant to section 48 of the Transitional
Provisions,' the former Board was no longer seized
of the applicants' claims and that their claims
would be "reheard" before the new Board.
The applicants submit that they have the right
to a credible basis hearing before an adjudicator
and a member of the Refugee Division. If their
claims for refugee status are found to have a
credible basis, this would enable them to benefit
from the advantages accorded to those whose
claims are dealt with under the Regulations. They
also submit that they had a legitimate expectation
that their files would be dealt with under the
Regulations following the respondent's "declara-
tion" or "promise" that measures would be taken
to deal with the existing backlog.
In order to determine whether the applicants are
in fact eligible to a credible basis hearing, it is
imperative to look at the relevant provisions and
their application to the case at bar.
REFUGEE CLAIMANTS DESIGNATED
CLASS REGULATIONS
Subsection 3(1) of the Refugee Claimants Des
ignated Class Regulations designates the class of
persons eligible to make an application for landing
pursuant to the Regulations. There are three
criteria:
3. (1) Subject to subsection (2), the Refugee Claimants
Designated Class is hereby designated for the purposes of
subsection 6(2) of the Act as a class the admission of members
of which would be in accordance with Canada's humanitarian
3 R.S.C., 1985 (4th Supp.), c. 28.
tradition with respect to the displaced and the persecuted, and
shall consist of those persons who
(a) were in Canada on January 1, 1989 or had been directed
back, prior to that date, to the United States pursuant to
subsection 23(5) of the Act, to await the availability of an
adjudicator for an inquiry scheduled to be held on or after
that date;
(b) signified, before January 1, 1989, an intention to make a
claim to be a Convention refugee
(i) to an immigration officer, who recorded that intention
before that date, or to a person acting on behalf of an
immigration officer, who an immigration officer is satis
fied recorded that intention before that date, or
(ii) to an adjudicator prior to the conclusion of an inquiry
respecting those persons' status in Canada; and
(c) have been determined to have a credible basis for their
claim to be a Convention refugee pursuant to
(i) subsection 46.01(6) or (7) of the Act, or
(ii) subsection 43(1) of an Act to amend the Immigration
Act and to amend other Acts in consequence thereof, R.S.,
c. 28 (4th Supp.). [My emphasis.]
The applicants meet the first and second criteria
for they were in Canada before January 1, 1989,
having arrived on September 12, 1986, at which
time they applied for refugee status. The problem
arises with regards to the third criteria which may
be met by one of two methods.
(i) Subsection 46.01(6) or (7) of the Immigration
Act
Subsections 46.01(6) and (7) of the Act [s.
46.01 (as enacted by R.S.C., 1985 (4th Supp.), c.
28, s. 14)] are the provisions pursuant to which a
credible basis is determined. However, it is subsec
tion 46.01(1) which sets out those persons who
claim to be Convention refugees who are not eli
gible to have their claims determined by the
Refugee Division. The relevant provisions read as
follows:
46.01 (1) A person who claims to be a Convention refugee is
not eligible to have the claim determined by the Refugee
Division if
(c) the claimant has, since last coming into Canada, been
determined
(i) by the Refugee Division, the Federal Court of Appeal
or the Supreme Court of Canada not to be a Convention
refugee or to have abandoned the claim, or
(ii) by an adjudicator and a member of the Refugee
Division as not being eligible to have the claim determined
by that Division or as not having a credible basis for the
claim;
The applicants surely do not fall under subpara-
graph 46.01(1)(c)(ii) for this is the thrust of their
motion. Furthermore, they are not excluded by
subparagraph (i) for they have not yet come before
the Refugee Division. Therefore, one would con
clude that the applicants are eligible to have their
claims determined by the Refugee Division. How
ever, there are still the Transitional Provisions to
consider.
(ii) Subsection 43(1) of the Transitional Provisions
Subsection 43(1) is the actual provision under
which the adjudicator and a member of the
Refugee Division determine whether a particular
claimant has a credible basis for his or her claim.
However, one must first be eligible to have one's
claim to be a Convention refugee determined by
the Refugee Division pursuant to section 41, which
reads in part as follows:
41. Notwithstanding any provision of the said Act, the
following persons, being persons who claim to be Convention
refugees, are eligible to have their claims determined by the
Refugee Division:
(b) every person who, on the commencement day [January 1,
1989], is the subject of an inquiry that is in adjournment
pursuant to subsection 44(1) of the former Act and who has
then been determined by the Minister under subsection 44(4)
of the former Act not to be a Convention refugee, other than
a person
(iii) whose application under subsection 68(1) of the
former Act for a redetermination of the claim is to be dealt
with by the former Board under section 48, or [My
emphasis.]
Pursuant to subsection 48(1) of the Transitional
Provisions, the Immigration Appeal Board, the
former Board, had a continuing jurisdiction with
regards to pending applications and appeals:
48. (1) Subject to this section, applications for redetermina-
tion of claims and appeals to the former Board commenced
under the former Act before the commencement day [January
1, 1989] and not disposed of by the former Board before that
day shall be dealt with and disposed of by the former Board in
accordance with the former Act and the rules thereunder.
[Underlining added.]
The claimants' applications were commenced
before January 1, 1989. However, subsection
48(3) of the Transitional Provisions sets out the
limitation period for the application of subsection
48(1). The jurisdiction of the Immigration Appeal
Board to hear certain cases was limited to Decem-
ber 31, 1989, for after that date it ceased to exist:
48....
(3) Where an application or appeal referred to in subsection
(1) is not disposed of by the former Board within one year after
the commencement day, [January 1, 1989], the proceedings
before the former Board shall be terminated and the applica
tion or appeal shall be re-heard by the Refugee Division or the
Appeal Division, as the case may require, in accordance with
the said Act. [Underlining added.]
The applications in the case at bar were not
disposed of before the Immigration Appeal Board
before January 1, 1990, and the applicants were
informed that their files were before the Immigra
tion and Refugee Board. The claimants do not
want to go via this route because they claim that a
negative finding by the Refugee Division of their
refugee determinations would result in their exclu
sion from the designated class pursuant to para
graph 3(2)(g) of the Regulations.
The claimants fulfil paragraph 41(b), however,
the problem arises with respect to subparagraph
41(b)(iii). The applicants claim that the French
version of subparagraph 41(b)(iii) is vague:
"application de l'article 48 la demande de réexa-
men", whereas the English version is more specif
ic: "is to be dealt with by the former Board under
section 48" [underlining added]. Therefore, they
claim that, as of January 1, 1990, their claims
were no longer to be dealt with by the Immigration
Appeal Board for it ceased to exist and so they
should be dealt with by the Refugee Division,
commencing with a credible basis hearing.
The respondent, however, claims that Parlia
ment's intention is clear that those claimants who
fall under section 48 would be excluded from the
Regulations such that the applicants are not eli
gible to have their credible basis claims heard by
the Refugee Division.
The respondent also claims that subsection
48(3) has [TRANSLATION] "the effect of waiving
the requirement that there be both a determination
of eligibility and a credible basis for the claim to
refugee status before a hearing is held before the
Refugee Division". In other words, the respondent
is submitting that subsection 48(3) does away with
fulfilling the section 41 requirement (i.e. being
eligible to have one's Convention refugee claim
determined by the Refugee Division) and with the
requirement to have been determined to have a
credible basis for their Convention refugee claim.
Therefore, the respondent claims that the appli
cants must have their refugee determinations
heard by the Refugee Division without first having
a credible basis hearing.
I understand why the applicants have a problem
with this for not only are they excluded from the
application of the more favourable Regulations
which provide an exemption from all but health
and security requirements in the making of land
ing applications but, they must appear before the
Refugee Division for the determination of their
Convention refugee claims while not even having a
credible basis hearing. Also, they claim that the
evidentiary burden to be met to establish a cred
ible basis is much lighter than the burden to be
recognized as a refugee.
Subsection 3(2) of the Refugee Claimants Des
ignated Class Regulations sets out who shall not
be included in the designated class. The only para
graph which could eventually apply to the claim
ants is (g) which reads as follows:
3....
(2) The Refugee Claimants Designated Class shall not
include a person who
(g) is determined by the Refugee Division not to be a
Convention refugee. [Underlining added.]
The respondent submits that a claimant whose
claim is not eligible to be determined by the
Refugee Division pursuant to section 41 of the
Transitional Provisions, does not have the right to
a credible basis hearing before an adjudicator and
a member of the Refugee Division pursuant to
section 43, and, therefore, cannot satisfy the third
criteria at subparagraph 3(1)(c)(ii) of the Regula
tions.
This is the result that the applicants fear if they
are forced to have their refugee determinations
heard by the Refugee Division without having a
credible basis hearing before an adjudicator and a
member of the Refugee Division.
It is my understanding that the relevant provi
sions are such that those persons who are in the
designated class pursuant to subsection 3(1) of the
Regulations and are not excluded pursuant to sub
section 3(2), can make an application for landing
pursuant to section 4 of the Regulations. However,
those persons who are not in the designated class
pursuant to subsection 3(1), as well as those who
are in the designated class but have been excluded
under subsection 3(2), cannot make an application
for landing pursuant to section 4 of the Regula
tions. Finally, those persons who are excluded
from the Regulations will have their Convention
refugee claims determined pursuant to sections 41
to 47 of the Transitional Provisions as per normal
under the new scheme. This means that their
Convention refugee claims will be determined by
the Refugee Division after an adjudicator and a
member of the Refugee Division have concluded
on the claim's credible basis.
The intention of Parliament seems to be that
refugee claimants who arrived in Canada before
January 1, 1989, would be dealt with pursuant to
either:
(1) the Regulations via
(a) the former Act (which is impossible now for
the Immigration Appeal Board no longer exists),
or
(b) section 43 of the Transitional Provisions;
or
(2) the new Act, which is the Transitional Provi
sions, without going through the Regulations.
In any event, claimants have a right to a cred
ible basis hearing either way. In this case, the
respondent appears to be claiming that the appli
cants do not come under the Regulations, and that
they have a right to only part of the new scheme,
that is, to have their claims determined by the
Refugee Division without a prior credible basis
hearing.
With all due respect to the respondent, I disa
gree. It does not appear that the intention of
Parliament was to take away the opportunity to
have a credible basis hearing from those claimants
who had not had their claims "dealt with" by the
former Board. The applicants are therefore eligible
for a credible basis hearing before an adjudicator
and a member of the Refugee Division such that
they will be given the opportunity to fulfil the third
criteria of subsection 3(1) of the Regulations.
Certiorari and the Director's "decision"
The applicants claim that the Director's decision
to hold a refugee determination hearing without a
prior credible basis hearing is preventing them
from fulfilling the third criteria of subsection 3(1)
of the Regulations which requires that they have
been determined to have a credible basis for their
claims to be Convention refugees pursuant to sub
section 46.01(6) or (7) of the Immigration Act, or
subsection 43(1) of the Transitional Provisions.
However, the respondent submits that a writ of
certiorari cannot issue for the following reasons.
First, the respondent submits that the Director's
letter does not constitute a decision regarding the
application of the Regulations and that it is not a
decision of a "federal board, commission or other
tribunal" pursuant to section 2 of the Federal
Court Act which reads as follows:
2. In this Act,
"federal board, commission or other tribunal" means any body
or any person or persons having, exercising or purporting to
exercise jurisdiction or powers conferred by or under an Act
of Parliament, other than any such body constituted or
established by or under a law of a province or any such
person or persons appointed under or in accordance with a
law of a province or under section 96 of the Constitution Act,
1867;
The respondent cites the decision of Sweet D.J.
in Russo v. Minister of Manpower &
Immigration 4 for the clear statement that "federal
board, commission or other tribunal", as defined
by section 2 of the Federal Court Act refers to
persons to whom Parliament has conferred juris
diction or powers to make decisions. The simple
reply to a letter does not result in the exercise of
"jurisdiction or powers conferred by or under an
Act of Parliament".
It appears that the applicants' files were sent
directly from the former Board, the Immigration
Appeal Board, to the new Board, the Immigration
and Refugee Board, without any transit through
the Backlog Administration.
The applicants claim that counsel's letter of
July 4, 1990, was not requesting that the Director
review a decision which he or some other authority
had made, but was rather a request to the com
petent authority to hold a credible basis hearing
pursuant to section 42 of the Transitional Provi
sions. Therefore, they submit that the Director's
response of July 11, 1990, was the first indication
by a person with the power to decide, that immi
gration officials were refusing to hold a credible
basis hearing. Therefore, the applicants claim that,
in view of the decision in Fee et al. v. Bradshaw et
a1. 5 where the Court held that section 18 of the
Federal Court Act is applicable to an administra
tive decision or the exercise of a discretionary
power, the issue is whether the Director's letter
4 [1977] 1 F.C. 325 (T.D.), at p. 329.
5 [1982] 1 S.C.R. 609, at p. 616.
constitutes an administrative decision or the exer
cise of a discretionary power.
In view of this situation, the applicants claim
that the personal information forms, "P.I.F.", sent
to them by the Immigration and Refugee Board
must have been sent by mistake, for subsection
46(2) [as am. by R.S.C., 1985 (4th Supp.), c. 28,
s. 14] of the Immigration Act and subsection
18(1) of the Convention Refugee Determination
Division Rules [SOR/89-103] both state that the
P.I.F. must be given to the adjudicator when a
claim is made during an inquiry or a credible basis
hearing. Hearings and inquiries are held following
directives or notices from immigration officials
addressed to an adjudicator (see sections 23(4)(a),
27(4), 28, 44(3) of the Act and subsection 42(1) of
the Transitional Provisions).
In reply, the respondent once again submits that
subsection 48(3) of the Transitional Provisions has
the effect of doing away with the requirement of
the finding of a credible basis of one's claim before
one's claim is heard by the Refugee Division.
Accordingly, subsection 18(1) of the Convention
Refugee Determination Division Rules does not
apply for the applicants are not to have a credible
basis hearing before an adjudicator and a member
of the Refugee Division. The letter in question was
with respect to a Convention refugee hearing
before the Refugee Division, such that subsections
46(2) and 18(1), which only apply with respect to
credible basis hearings before an adjudicator and a
member of the Refugee Division, do not apply to
this situation.
In the alternative, the respondent submits that
the Director's letter was not in the nature of a
decision for the applicants had been previously
informed that their files were pending before the
Immigration and Refugee Board by the Deputy
Registrar in June of 1990, who the applicants
claim surely did not have the jurisdiction or power
to make such a decision.
In my opinion, it is as a result of the decision of
the Director that the applicants have been denied a
credible basis hearing. Subsection 48(3) of the
Transitional Provisions does not do away with the
requirement of having a credible basis to one's
claim before having one's claim determined by the
Refugee Division.
LEGITIMATE EXPECTATION
The applicants claim that they had a legitimate
expectation that their claims would be dealt with
pursuant to the Regulations for the following
reasons:
(i) the Minister's "promise" dated December 28,
1988, to deal with the "processing of refugee
claims not completed by January 1, 1989" and
that "All claims will be determined by an
adjudicator and a member of the newly created
Immigration and Refugee Board";
(ii) they are not expressly excluded from the
Regulations pursuant to the provisions of para
graphs 3(2)(a) to (g);
(iii) they fulfil the inclusion requirements of para
graph 3(1)(a) and subparagraph 3(1)(b)(ii) of the
Regulations; and
(iv) it is the respondent's "illegal" act which is
preventing them from fulfilling the third require
ment for inclusion, that is, paragraph 3(1)(c).
The doctrine of legitimate expectation was well
stated in Attorney-General of Hong Kong v. Ng
Yuen Shiu: 6
... when a public authority has promised to follow a certain
procedure, it is in the interest of good administration that it
should act fairly and should implement its promise, so long as
implementation does not interfere with its statutory duty.
Two questions are left to be answered:
1. Whether the Minister's December 28, 1988,
declaration or "promise" and the subsequent pub
lications and Regulations create a "legitimate or
reasonable expectation"; and
6 [1983] 2 A.C. 629 (P.C.), at p. 638.
2. Whether the applicants must establish that en
abling legislation allows the Minister to fulfil this
expectation (respondent's position) or, whether the
respondent must rather establish a statutory bar
preventing the Minister from complying (appli-
cants' position).
In response to the first question, the information
document on backlog procedures released on
March 31, 1989, sets out four groups. The appli
cants could only come under the second group
which aims at those persons who entered Canada
between May 1986 and February 1987. However,
it also stipulates that such persons hold a minis
ter's permit, which the applicants do not. The
respondent, therefore, submits that it is clear that
the applicants do not come within the 85,000
claimants who were to be dealt with under the
backlog procedures and that there is no basis for a
legitimate expectation.
However, the ministerial declaration of Decem-
ber 28, 1988, states that the Minister's plan was to
process "refugee claims not completed by January
1, 1989". The applicants claim that according to
this declaration they had a legitimate expectation
that their claims would be dealt with under the
backlog procedures.
In Zeybekoglu v. Canada (Minister of Employ
ment and Immigration),' my brother Joyal J.
recently dealt with the question of legitimate
expectation in very similar but distinguishable cir
cumstances. In that case, he found that there was
no legitimate expectation on the part of the appli
cants for their claims had already been dealt with
by the Immigration Appeal Board who had denied
their applications for redetermination. Therefore,
they were no longer part of the backlog and could
not reasonably expect to be dealt with under the
system set up to deal specifically with the backlog.
However, in the case at bar, the applicants'
claims have not been "dealt with" for the Immi
gration Appeal Board has not denied their applica
tions for redetermination. It was therefore reason
' (8 May 1991), T-2894-90 (F.C.T.D.), not yet reported.
able for the applicants to expect that their claims
would be dealt with under the backlog system for
they were still part of the backlog.
In response to the second question, in Bendah-
mane v. Canada (Minister of Employment and
Immigration) 8 the Court of Appeal found that:
The Minister has promised to give consideration to the respond
ent's claim for refugee status. While such consideration is not
specifically provided for in the statute, there is nothing to
prohibit it and the Minister has, in fact, considered other
claims for refugee status by persons for whom the statutory
procedure was not available. For the Minister to consider the
respondent's claim would not conflict with his statutory duty.
The respondent, however, submits that in Ben-
dahmane the Court also found that the claimant
had not fulfilled the necessary requirements to fall
under the particular scheme, and so the decision
refusing him access to and the advantages of the
scheme was the only one to be made.
The applicants submit that not only did the
Court of Appeal in Bendahmane not look for a
statutory enablement before ordering compliance
with the undertaking, but it went so far as to state
that the legislative scheme did not allow for proper
compliance, and ordered compliance outside that
scheme. In other words, the question was not
whether the law enabled the Minister to fulfil the
expectation, but whether there was a statutory bar
preventing the Minister from complying with the
expectation.
The respondent has not pleaded a statutory bar
to the compliance, but has concentrated on the
establishment of the absence of a statutory
enablement.
The applicants, therefore, submit that there is
no statutory bar to their having a credible basis
hearing before having their Convention refugee
claims determined by the Refugee Division, for
claimants must normally be eligible to have a
credible basis hearing before having their claims
s [1989] 3 F.C. 16 (C.A.), at p. 32.
determined by the Refugee Division. This is in line
with my finding above.
The application for the issuance of a writ of
certiorari to quash the decision rendered by Louis
Grenier on July 11, 1990 which denied the appli
cants the right to have their cases processed under
the Refugee Claimants Designated Class Regula
tions is hereby granted. The respondent is ordered
to hold a hearing to determine if the applicants'
refugee claim has a credible basis and, if so, to
thereafter process the applicants' claim under the
Refugee Claimants Designated Class Regulations.
The mis -en-cause is enjoined from holding a
hearing into the applicants' refugee claim until the
above mandamus order has been complied with.
Costs in favour of the applicants.
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.