Judgments

[1993] 1 F.C. 154

A-544-92

Minister of Employment and Immigration (Applicant)

v.

Marcel Mayers (Respondent)

Indexed as: Canada (Minister of Employment and Immigration) v. Mayers (C.A.)

Court of Appeal, Isaac C.J., Heald and Mahoney JJ.A.—Toronto, October 6; Ottawa, November 5, 1992.

Citizenship and Immigration — Status in Canada — Convention refugees — Trinidadian woman subject to wife abuse — Adjudicator cannot be said to have erred in law by implicitly concluding Refugee Division might find “Trinidadian women subject to wife abuse” to be “particular social group” within definition of “Convention refugee” and fear of abuse, given state of authorities, to be “fear of persecution”.

The respondent, a national of Trinidad and Tobago, fled to Canada in 1986 and sought refugee status. She had been the victim of spousal abuse since her marriage in 1971. Complaints to the police had achieved nothing other than increased abuse. She was admitted to Canada when the adjudicator of a credible basis panel — the favourable decision of one member being conclusive — found her to be a credible witness and concluded that there was some evidence upon which the Refugee Division might determine that she was a Convention refugee. The issue was whether the adjudicator had erred in law by implicitly concluding that the Refugee Division might find “Trinidadian women subject to wife abuse” to be a “particular social group” within the meaning of the definition of “Convention refugee” and by implicitly concluding that the respondent’s fear of abuse by her husband was “fear of persecution”. Having found the respondent’s evidence credible, did the adjudicator have the authority to enter upon an enquiry as to whether or not the claimed particular social group and fear of persecution fell within the definition? Or were those questions of law, not fact, concerning which the adjudicator was obliged to construe and apply the law correctly? This was an application for judicial review of the credible basis panel’s decision.

Held, the application should be dismissed.

There was no judicial or other authority upon which the adjudicator was obliged to rely that would lead him to a concluded opinion whether, as a matter of law, “Trinidadian women subject to wife abuse” are a “particular social group”. To construe the statute with a view to that determination required the weighing of credible evidence in the form of foreign jurisprudence and learned commentary. Given that, in this context, persecution must be feared by reason of membership in a particular social group, a question arises as to whether fear of persecution of itself can convert a mere social group into a “particular social group”.

In view of the uncertainty on the matter, it could not be said that the adjudicator erred in law by implicitly concluding that the Refugee Division might find “Trinidadian women subject to wife abuse” to be a “particular social group” and fear of that abuse to be “fear of persecution”. While the Refugee Division might be right if it so decided, the credible basis tribunal had not the authority to pursue the question. A first level tribunal, whose mandate is merely to determine whether there is a credible basis for a refugee claim, should not decide obliquely, under the rubric of relevance, hitherto undecided legal issues.

This being a test case, there was special reason within the contemplation of Rule 1408 for awarding costs. Respondent should be awarded costs as between solicitor and client.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Federal Court Rules, C.R.C., c. 663, R. 1408.

Immigration Act, R.S.C., 1985, c. I-2, ss. 2, 3(g), 6(2), 46.01(6) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 14), 84(1) (as am. idem, s. 19).

Refugee Act of 1980, Pub. L. No. 96-212, title II, 201(a), 94 Stat. 102 (U.S.).

Refugee Claimants Designated Class Regulations, SOR/90-40, s. 3.

CASES JUDICIALLY CONSIDERED

APPLIED:

Leung v. Canada (Minister of Employment & Immigration) (1990), 74 D.L.R. (4th) 313; 12 Imm. L.R. (2d) 43; 129 N.R. 391 (F.C.A.); Camara v. Canada (Minister of Employment & Immigration) (1991), 13 Imm. L.R. (2d) 145 (F.C.A.).

DISTINGUISHED:

Williams v. Minister of Employment and Immigration, [1985] 2 F.C. 153 (T.D.).

CONSIDERED:

Minister of Employment and Immigration v. Mahabir, A-367-90, decision dated 11/4/91, F.C.A., no reasons rendered; Gonzalez v. Canada (Minister of Employment & Immigration) (1991), 14 Imm. L.R. (2d) 51 (F.C.A.); Lai v. Canada (Minister of Employment & Immigration) (1989), 8 Imm. L.R. (2d) 245 (F.C.A.); T89-01891/2, 23/1/90, Ref. Div.; T89-01960, 4/1/90, Ref. Div.; M89-00244, March 1990, Ref. Div.; T89-03344, 5/2/90, Ref. Div.; T89-02579, 8/12/89, Ref. Div.; M87-1541X, 10/8/87, I.A.B.; V83-6807, 26/6/86, I.A.B.; T87-9024X, 29/7/87, I.A.B; Canada (Attorney General) v. Ward, [1990] 2 F.C. 667; (1990), 67 D.L.R. (4th) 1; 10 Imm. L.R. (2d) 189; 108 N.R. 60 (C.A.); Sanchez-Trujillo v. I.N.S., 801 F. 2d 1571 (9th Cir, 1986).

REFERRED TO:

Rajudeen v. Minister of Employment and Immigration (1984), 55 N.R. 129 (F.C.A.).

AUTHORS CITED

Compton, Daniel. “Asylum for Persecuted Social Groups: a Closed Door Left Slightly Ajar” (1987), 62 Wash. L. Rev. 913.

Hathaway, James C. The Law of Refugee Status, Toronto: Butterworths, 1991

Office of the United Nations High Commissioner for Refugees. Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees, Geneva, 1988.

APPLICATION for judicial review of the decision of a credible basis panel that there was some evidence upon which the Refugee Division might determine the respondent to be a Convention Refugee on the basis that a Trinidadian woman subject to wife abuse was a member of a “particular social group” within the definition of “Convention refugee” and that fear of abuse by her husband was “fear of persecution” within that definition. Application dismissed.

COUNSEL:

Marie-Louise Wcislo for applicant.

Lee R. Tenenhouse and Ron Shacter for respondent.

SOLICITORS:

Deputy Attorney General of Canada for applicant.

Kensington-Bellwoods Community Legal Services, Toronto, and Parkdale Community Legal Services, Toronto, for respondent.

The following are the reasons for judgment rendered in English by

Isaac C.J.: I have had the privilege of reading the reasons for judgment of my colleague, Mr. Justice Mahoney.

I agree with my colleague that the adjudicator cannot be said to have erred in law by concluding that the Refugee Division might find “Trinidadian women subject to wife abuse” to be a particular social group, and fear of that abuse, given the indifference of the authorities, to be persecution.

I agree, as well, with the disposition as to costs that he proposes.

Accordingly, I, too, would dismiss this application with costs to the respondent as between solicitor and client.

* * *

The following are the reasons for judgment rendered in English by

Mahoney J.A.: This is an application for judicial review of the decision of a credible basis panel dealing with the respondent’s claim to be a Convention refugee. The adjudicator found the respondent “to be essentially a credible witness” and, without expressly relating the claim to the statutory definition, concluded that there was some evidence upon which the Refugee Division might determine her to be a Convention refugee. The Refugee Board member found the respondent not to be a credible witness and found further that her claimed fear of persecution was unrelated to the Convention refugee definition. The favourable decision of one member of the tribunal being conclusive[1], and the respondent being in the so-called “back-log”,[2] the determination of the adjudicator entitled her to be admitted to Canada.[3] The adjudicator’s finding of the respondent’s credibility is conclusive for purposes of this review.

The respondent is a national of Trinidad and Tobago. She was abused by her husband from the time of her marriage in 1971, at age 22, until her flight to Canada in 1986. The abuse included rape. Their children were also abused. Attempts to obtain help from the Trinidadian authorities almost invariably failed. The police usually took hours to respond, did not interview her apart from her husband and left after being assured by him that there was no more to it than a domestic spat. Complaints on her behalf by her mother, sister and his daughter by a different mother were similarly dealt with. The respondent became convinced that police involvement achieved nothing but enhanced abuse. She never complained of rape as spousal rape was not then an offence in Trinidad. To her knowledge, there were no shelters to which she could have recourse.

The respondent’s claim was based solely on her membership in a particular social group. There is no suggestion that she is unable to return to Trinidad. Neither subsection (2) of the statutory definition nor the schedule to the Act is in play. Thus, for purposes of this proceeding, the statutory definition in its relevant content reads:

2. (1)…

…

“Convention refugee” means any person who

(a) by reason of a well-founded fear of persecution for reasons of membership in a particular social group…

(i) is outside the country of the person’s nationality and…, by reason of that fear, is unwilling to avail [her]self of the protection of that country….

The applicant defines the particular social group as “Trinidadian women subject to wife abuse” and the respondent defines it alternatively as “women”, “Trinidadian women” and “Trinidadian women subject to wife abuse”. The only questions, in the applicant’s submission, are whether the adjudicator erred by implicitly deciding that any of those describe a particular social group within the contemplation of the definition and whether he erred, again implicitly, in finding the respondent’s fear of abuse by her husband was fear of persecution within its contemplation. There is no issue that, if that fear is fear of persecution, the repetitive character and the indifference of the authorities might be found to meet the criteria of Rajudeen v. Minister of Employment and Immigration.[4]

The relevant words of subsection 46.01(6) of the Act follow.

46.01…

(6) If the adjudicator or the member of the Refugee Division, after considering the evidence adduced at the inquiry or hearing

…

is of the opinion that there is any credible or trustworthy evidence on which the Refugee Division might determine the claimant to be a Convention refugee, the adjudicator or member shall determine that the claimant has a credible basis for the claim.

Again, there is no issue that, although a favourable credible basis finding has a very different consequence for a member of the “back-log”, the tribunal’s mandate is any different than if the result were merely a reference of the claim to the Refugee Division.

The respondent argues that the adjudicator, having found her evidence credible, had no authority to enter upon the enquiry whether or not the claimed particular social group and fear of persecution fell within the definition. The applicant responds that those are questions of law, not fact, and that the adjudicator was obliged to construe and apply the law correctly. In order to reach a conclusion on this question in a concrete context rather than the abstract, it will be necessary to go through the exercise urged by the applicant and then to consider it in light of the authorities which have defined the role of the credible basis tribunal.

I therefore now turn to the authorities and other material submitted by the applicant in support of the argument that, in law, “women”, “Trinidadian women” and “Trinidadian women subject to wife abuse”, as the case may be, are not a particular social group within the Convention refugee definition. With one exception, no decision of this Court, appears to have dealt with “particular social group” as a central issue. The exception is Canada (Attorney General) v. Ward[5] to which I shall return.

In M.E.I. v. Mahabir[6], the Court dismissed, without reasons, an application to set aside the determination that there was some credible and trustworthy evidence upon which the Refugee Division might determine a Trinidadian woman to be a Convention refugee. The tribunal had held that in addition to a claim based on race, an East Indian background, it might be argued that “a woman who is unprotected in Trinidad by a male or family members” belonged to a particular social group. In Gonzalez v. Canada (Minister of Employment & Immigration)[7], it was accepted that “the family of Juan Ramon Arrechea”, a Uruguayan labour leader, was a particular social group. In Lai v. Canada (Minister of Employment & Immigration)[8], “persons with capitalist backgrounds” were claimed to be a particular social group liable to persecution in China. The matter was remitted for reconsideration on other grounds.

The Refugee Division, in second level hearings, has held that Sri Lankan “[w]omen who face harsh and inhuman treatment in the form of [physical and sexual abuse]”,[9] “young [Lebanese] men targeted to join this militia which is not an official army of the State”,[10] “the only professional body without an Islamic word or symbol in its nomenclature”,[11] Cuban Freemasons,[12] and “people in rural areas [of El Salvador] who find themselves caught between the two opposing forces and victimized and suspected by each”[13] to be members of a particular social group. In earlier decisions, the Immigration Appeal Board has held likewise as to single women living in a Muslim country without the protection of a male relative,[14] “young [Salvadoran] men of military age”,[15] and “young [Honduran] men of eligible age for military duty, who were subject to mistreatment after indiscriminate recruitment”.[16]

On the basis of that tribunal jurisprudence, it may be concluded that the adjudicator here did not err in finding that the present respondent might be found to be a member of a particular social group provided, of course, the Refugee Division agreed with his assessment of her credibility. I repeat, however, that in none of the foregoing did either the Court or tribunal direct its mind to the possibility that, in law, the perceived particular social group was not encompassed in the statutory definition.

In Canada (Attorney General) v. Ward,[17] the respondent had been sentenced to death by the Irish National Liberation Army, of which he was a member, because, as a matter of conscience, he had assisted in the escape of hostages slated to be murdered. It was common ground that the authorities would be unable to protect him.

Ward is sui generis in that it did not propose any workable test for the recognition of other social group claims. Its facts are so different from the present as to render particular conclusions and dicta entirely inapposite. It did, however, indicate some of the material to be taken into account in deciding whether a “social group” within a broad dictionary definition of the term is a “particular social group” within the statutory definition. Among those considerations is paragraph 3(g) of the Immigration Act.

3. It is hereby declared that Canadian immigration policy and the rules and regulations made under this Act shall be designed and administered in such a manner as to promote the domestic and international interests of Canada recognizing the need

…

(g) to fulfil Canada’s international legal obligations with respect to refugees and to uphold its humanitarian tradition with respect to the displaced and the persecuted;

Also considered was the Handbook on Procedures and Criteria for Determining Refugee Status under the 1951 Convention and the 1967 Protocol relating to the Status of Refugees[18] whereof the relevant paragraphs follow.

77. A “particular social group” normally comprises persons of similar background, habits or social status. A claim to fear of persecution under this heading may frequently overlap with a claim to fear of persecution on other grounds, i.e. race, religion or nationality.

78. Membership of such a particular social group may be at the root of persecution because there is no confidence in the group’s loyalty to the Government or because the political outlook, antecedents or economic activity of its members, or the very existence of the social group as such, is held to be an obstacle to the Government’s policies.

79. Mere membership of a particular social group will not normally be enough to substantiate a claim to refugee status. There may, however, be special circumstances where mere membership can be a sufficient ground to fear persecution.

Additional material to which the applicant invites consideration includes Professor Hathaway’s The Law of Refugee Status[19], Sanchez-Trujillo v. I.N.S.,[20] a decision of the United States Court of Appeals, Ninth Circuit, and a commentary on Sanchez-Trujillo.[21] Professor Hathaway cites Sanchez-Trujillo with general approval while noting the contradiction of the requirement of a “voluntary associational relationship” with the following recognition of the family as “a prototypical example” in a passage which will be recited below. The formulation which Professor Hathaway appears to prefer [at page 161]

… includes within the notion of social group (1) groups defined by an innate, unalterable characteristic; (2) groups defined by their past temporary or voluntary status, since their history or experience is not within their current power to change; and (3) existing groups defined by volition, so long as the purpose of the association is so fundamental to their human dignity that they ought not to be required to abandon it. Excluded, therefore, are groups defined by a characteristic which is changeable or from which dissociation is possible, so long as neither option requires renunciation of basic human rights… a “particular social group” must be definable by reference to a shared characteristic of its members which “is fundamental to their identity”.

The definition of “refugee” in the U.S. Refugee Act of 1980 [Pub. L. No. 96-212, title II, 201(a), 94 Stat. 102] is for all practical purposes identical to our definition of “Convention refugee”. The threshold question before the Court in Sanchez-Trujillo was whether “young, urban, working class Salvadoran males of military age (eighteen to thirty) who had not joined the armed forces or expressed overt support for the Salvadoran government” [at page 913 Wash. L. Rev.] were cognizable as a particular social group, membership in which should be regarded as indicative of refugee status.

Having considered paragraphs 77 and 79 of the U.N. Handbook, the Court said [at page 1576]:

We may agree that the “social group” category is a flexible one which extends broadly to encompass many groups who do not otherwise fall within the other categories of race, nationality, religion or political opinion. Still, the scope of the term cannot be without some outer limit.

The statutory words “particular” and “social” which modify “group” indicate that the term does not encompass every broadly defined segment of a population, even if a certain demographic division does have some statistical relevance. Instead, the phrase “particular social group” implies a collection of people closely affiliated with each other, who are actuated by some common impulse or interest. Of central concern is the existence of a voluntary associational relationship among the purported members, which imparts some common characteristic that is fundamental to their identity as a member of that discrete social group.

Perhaps a prototypical example of a “particular social group” would consist of the immediate members of a certain family,… As a contrasting example, a statistical group of males taller than six feet would not constitute a “particular social group” under any reasonable construction of the statutory term, even if individuals with such characteristics could be shown to be at greater risk of persecution than the general population.

Like this Court in Ward, the Court referred to no sources but the statute itself, the U.N. Handbook and a dictionary in developing a test for the determination whether a social group in the broad sense was a particular social group in the statutory sense. Its failure to look to international sources was the principal complaint of the Washington Law Review commentary [at page 914].

The court developed a four-part test for evaluating a social group claim which, if used in a balanced fashion, is capable of producing a fair result. The court’s use of the test, however, was not balanced.

A review of international and municipal law concerning refugees … reveals a different notion of what is meant by the term “social group.”

The municipal law referred to seems to be tests developed by the Board of Immigration Appeals, an administrative tribunal.

The Sanchez-Trujillo test follows. First, the cognizability of the group must be established. Second, claimants must show membership in that group. Third, the group must have been the target of persecution on account of its characteristics. Fourth, based on paragraph 79 of the U.N. Handbook, the Court had to determine if “special circumstances” existed which warranted granting asylum on the basis of social group membership alone. In its application of the test, the Court did not get beyond the first branch since it disposed of the case on the basis that [at pages 1576-1577]

… the class of young, working class, urban males of military age does not exemplify the type of “social group” for which the immigration laws provide protection from persecution. Individuals falling within the parameters of this sweeping demographic division naturally manifest a plethora of different lifestyles, varying interests, diverse cultures, and contrary political leanings… such an all-encompassing grouping as the petitioners identify simply is not that type of cohesive, homogeneous group to which we believe the term “particular social group” was intended to apply. Major segments of the population of an embattled nation, even though undoubtedly at some risk from general political violence, will rarely, if ever, constitute a distinct “social group” for the purposes of establishing refugee status. To hold otherwise would be tantamount to extending refugee status to every alien displaced by general conditions of unrest or violence in his or her home country.

An analysis of the definition in its statutory context, international jurisprudence and scholarly writing led counsel for the applicant to propose that, within the terms of the Immigration Act, a particular social group means (1) a natural or non-natural group of persons with (2) similar shared background, habits, social status, political outlook, education, values, aspirations, history, economic activity or interests, often interests contrary to those of the prevailing government, and (3) sharing basic, innate, unalterable characteristics, consciousness and solidarity or (4) sharing a temporary but voluntary status, with the purpose of their association being so fundamental to their human dignity that they should not be required to alter it. I take the reference to “natural and non-natural” to distinguish groups whose members are related by blood or some common inherited quality from groups otherwise composed and to permit the definition to include both. In my view of this matter, we do not have to reach a concluded opinion on the proper test but that may well be found to be a useful basis for consideration as and when we must.

I have, if anything, gone further than was absolutely necessary to illustrate the undertaking that would have been necessary, in the absence of tests prescribed by binding jurisprudence, for the adjudicator to decide conclusively whether or not, in law, the respondent’s claimed social group was a particular social group within the contemplation of the statute. The applicant urges that “Trinidadian women subject to wife abuse” is clearly a statistical group, exemplifying that type of “sweeping demographic division” manifesting a plethora of lifestyles etc. and an all encompassing group sharing only a single common characteristic which cannot be regarded as innate, unchangeable or natural. That may be right but, in the circumstances, was it within the mandate of a credible basis tribunal to decide it?

This Court has rendered numerous decisions in which the limited role Parliament has assigned a credible basis tribunal has been the central issue. Most have been expressed in the context of the precise facts of the particular proceeding and are of little or no assistance in dealing with materially different circumstances. An exception is Leung v. Canada (Minister of Employment & Immigration),[22] which referred, without quotation, to a number of earlier decisions and concluded [at page 315]:

These authorities make it clear that at the “credible basis” stage the tribunal is not to make findings of fact but is limited to determining the existence of credible or trustworthy evidence on each of the necessary elements of the claim such that the Refugee Division might find the applicant to be a Convention refugee. The primary role of the tribunal is to test the credibility of the evidence; in performing that role it is entitled to draw such inferences as are necessary for the purpose, as for example by determining that all or part of a witness’ story is unreliable because it is implausible or because the witness has contradicted himself.

When it comes to its secondary role, however, the tribunal is not to draw inferences or conclusions with regard to the existence of the essential elements of the claim; its only function is to determine whether the Refugee Division, acting on the evidence found to be credible or trustworthy, might reasonably conclude in the applicant’s favour. [My emphasis.]

In Leung [at page 316], the credible basis tribunal had concluded that the fear of persecution professed was “not fear of persecution which is objectively well founded.” It is, I think, clear in its context that the caveat against a credible basis tribunal drawing inferences or conclusions with regard to the existence of the essential elements of a claim, is directed to the weighing of evidence found credible to determine the existence of the subjective and objective elements which must, according to the jurisprudence, both be found to be present before fear of persecution can be found to be well founded. I do not read that as necessarily precluding a credible basis tribunal from reaching an adverse conclusion because the treatment the claimant testified to fearing was not persecution at all or that the evidence found credible does not relate what is feared to the statutory definition because it is not feared for a reason specified in the definition. The definition is clear: what is feared must be persecution and it must be feared for reasons of race, religion, nationality, membership in a particular social group or political opinion.

Camara v. Canada (Minister of Employment & Immigration)[23] dealt with a credible basis decision in which it had been found that the evidence of the claimant was credible and that he had participated in a coup attempt in the country of his nationality, was known to the authorities and feared arrest and imprisonment were he to return. The credible basis tribunal found that he feared prosecution, not persecution. The documentary evidence was mixed and, contrary to the claimant’s verbal evidence, mostly to the effect that the country was a democracy with an independent judiciary. This Court held [at page 146]:

… the tribunal, having found credible evidence that went both ways, should have realized it was confronted with a hitherto-undecided legal issue as to whether mere prosecution can exist where a regime is undemocratic and lacking a free judiciary. This is not an issue that should be decided obliquely, under the rubric of relevance, by a first-level tribunal, whose mandate is merely to determine whether there is a credible basis for a refugee claim.

In order to decide that what was feared was not persecution the tribunal ignored credible evidence upon which a contrary conclusion might have been reached and that, implicitly, entailed the weighing of evidence and preferring credible evidence to one effect over credible evidence to another.

The phrase “social group” has a broad meaning in its ordinary, dictionary sense but it is, in the statute, modified by “particular”. It seems to me that the adjudicator could readily have decided that, even if a “social group”, women, constituting as they do about half of humanity, cannot aptly be described as a “particular social group”. He might equally, on that basis and in my view correctly, have decided that Trinidadian women do not constitute a particular social group. Neither of those decisions require more than construing the statute according to the ordinary meaning of its words.

It is otherwise as to “Trinidadian women subject to wife abuse”. There is presently no judicial or other authority upon which the adjudicator was obliged to rely that would lead him to a concluded opinion whether, as a matter of law, they are a particular social group. The exercise I have gone through demonstrates that to construe the statute with a view to that determination requires the weighing of credible evidence in the form of foreign jurisprudence and learned commentary. A question may be posed for the future: since, in this context, persecution must be feared by reason of membership in a particular social group, can fear of that persecution be the sole distinguishing factor that results in what is at most merely a social group becoming a particular social group?

As to whether the abuse feared is persecution, the only authority cited was Williams v. Minister of Employment and Immigration[24] a decision of the Trial Division, in which an interlocutory injunction against execution of a deportation order was sought pending disposition of an action for a declaration of invalidity of the Long Term Illegal Migrants Program, as constituted. The applicant had been excluded from it. The learned Trial Judge held:

I have concluded that section 7 does not apply to this situation. There is no threat to the “life, liberty and security of the person” of the applicant here. The only matter of this nature is her alleged fear that she might suffer violence at the hands of the father of her three youngest children if she returns to Jamaica. While it appears to have been accepted by three judges in Singh et al. v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, at p. 207 that the fear of physical persecution by the state to which one is obliged to return may be a threat to the “security of the person”, I assume that such a proposition could not be extended to cover the fears of private violence which might be practised against one by other private individuals in one’s home country in violation of the laws of that country.

That was not a refugee case nor was persecution within the Convention refugee definition in issue nor, it seems, was the indifference of the authorities to private violence established. It is not, in my view, a relevant authority.

In conclusion, in my opinion, the adjudicator cannot be said to have erred in law by implicitly concluding that the Refugee Division might find “Trinidadian women subject to wife abuse” to be a particular social group and fear of that abuse, given the indifference of the authorities, to be persecution. That is not to say that the Refugee Division would be right if it so decided but only that the credible basis tribunal had not the authority to pursue the questions.

As discussed with counsel at the close of the hearing, this being a test case, there is special reason within the contemplation of Rule 1408 [Federal Court Rules, C.R.C., c. 663] for an award of costs. If it were an appeal rather than an application for judicial review, costs would be payable in any event to the respondent on a solicitor and client basis by virtue of subsection 84(1) [as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 19] of the Immigration Act. I would dismiss this application with costs to the respondent as between solicitor and client.

Heald J.A.: I agree.

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