A-73-74
Minister of Manpower and Immigration (Appel-
lant) (Plaintiff)
v.
Guillermo Lautoro Diaz Fuentes (Respondent)
(Defendant)
Court of Appeal, Pratte J., Hyde and St-Ger-
main, D.JJ.—Montreal, October 29 and 30,
1974.
Judicial review combined with appeal—Immigration—
Deportation order—Limitation in new legislation regarding
appeals from Immigration Appeal Board—"Refugee protect
ed by the Convention ", conditions re—Immigration Appeal
Board Act, ss. 2, 11, 14, 15 as amended by S.C. 1973-74, c.
27, ss. 1, 5, 6—Federal Court Act, s. 28.
Respondent arrived in Canada on January 1, 1974 from
Chile and applied to be admitted as an immigrant. As he did
not appear to meet the requirements of the Immigration Act
a deportation order was made against him by a Special
Inquiry Officer. Respondent claimed to be a political
refugee and filed a notice of appeal to the Board and
attached to the notice a sworn declaration as prescribed by
section 11(2) of the Immigration Appeal Board Act. Shortly
thereafter a "quorum of the Board", instead of proceeding
under section 11(3) to determine whether "it shall allow the
appeal to proceed", held a hearing at which both parties
were represented and counsel for respondent called wit
nesses to establish that his client was a "refugee protected
by the Convention". The Board handed down two decisions:
1. allowing the appeal to proceed, and 2. directing the appeal
against the deportation order be allowed. The appellant
appealed against the second decision.
Held, reversing the decision allowing the appeal, the case
is referred back to the Board for the appeal to proceed in
accordance with the Act. The fact that the Immigration
Appeal Board Act refers to the United Nations Convention
relating to the Status of Refugees does not have the effect
of incorporating into Canadian domestic law the prohibition
contained in the Convention against deporting` refugees.
Section 11(1)(c) confers a right of appeal, under certain
conditions, on a person who claims to be a "refugee protect
ed by the Convention". The Board may refer to the Conven
tion for two purposes only: 1. to determine, under section
11, whether a person who has been deported benefits from a
right of appeal to the Board and, 2. whether there is a basis
for the Board to grant special relief under section 15(1).
APPEAL and application for judicial review.
COUNSEL:
G. R. Léger for appellant.
J. S. Bless and B. S. Mergler for
respondent.
SOLICITORS:
Deputy Attorney General of Canada for
appellant.
Mergler, Bless, Leclaire, Marion, Lebel &
Belanger, Montreal, for respondent.
The following is the English version of the
reasons for judgment delivered orally by
PRATTE J.: The Minister of Manpower and
Immigration is challenging, by the appeal proce
dure as well as in the manner provided by
section 28, the decision of the Immigration
Appeal Board which allowed the appeal brought
by respondent against the deportation order
made against him by a Special Inquiry Officer.
In order to understand the questions raised by
this case it must be recalled, first, that not
everyone subject to a deportation order now
enjoys a right of appeal to the Immigration
Appeal Board, as was the case formerly. Since
adoption of the Act to amend the Immigration
Appeal Board Act, (S.C. 1973-74, c. 27) this
right of appeal, which covers questions of fact
and questions of law or questions of mixed law
and fact, is limited to four classes of persons.
This is the result of section 11(1) of the Immi
gration Appeal Board Act:
11. (1) Subject to subsections (2) and (3), a person
against whom an order of deportation is made under the
Immigration Act may appeal to the Board on any ground of
appeal that involves a question of law or fact or mixed law
and fact, if, at the time that the order of deportation is made
against him, he is
(a) a permanent resident;
(b) a person seeking admission to Canada as an immigrant
or non-immigrant (other than a person who is deemed by
subsection 7(3) of the Immigration Act to be seeking
admission to Canada) who at the time that the report with
respect to him was made by an immigration officer pursu
ant to section 22 of the Immigration Act was in posses
sion of a valid immigrant visa or non-immigrant visa, as
the case may be, issued to him outside Canada by an
immigration officer;
(c) a person who claims he is a refugee protected by the
Convention; or
(d) a person who claims that he is a Canadian citizen.
An understanding of this provision depends
on knowing that the word "Convention" used in
the phrase "refugee protected by the Conven
tion" is defined as follows in section 2 of the
Act:
2. In this Act
"Convention" means the United Nations Convention
Relating to the Status of Refugees signed at Geneva on
the twenty-eighth day of July, 1951 and includes any
Protocol thereto ratified or acceded to by Canada; [S.C.
1973-74, c. 27, s. 1.]
Under this International Convention, Canada
has undertaken, on the conditions stated in the
Convention, not to expel from her territory per
sons who are refugees within the meaning of the
Convention. As to the term "Canadian citizen",
it means a person who is a citizen within the
meaning of the Canadian Citizenship Act, which
entitles such a person, under section 3(1) of the
Immigration Act, to enter Canada.
While the right of appeal of persons referred
to in paragraphs (a) and (b) of section 11(1) is
conferred on them by virtue of a situation of
fact (permanent residence in Canada or the
possession of a visa obtained abroad), which
does not consist in a simple statement of intent
on their part, the right of appeal of persons
referred to in paragraphs (c) and (d), on the
other hand, results solely from the fact that, at
the time the deportation order was made, they
claimed to be either "a political refugee protect
ed by the Convention" or a Canadian citizen. As
there is nothing to prevent any person seeking
to come to Canada from claiming to be a
refugee or Canadian citizen, the purpose of the
new section 11, which was to limit appeals to
the Board, would not have been achieved if the
right of appeal of persons referred to in para
graphs (c) and (d) had not been made subject to
certain conditions. There are two such condi-
tions, and they are stated in subsections (2) and
(3) of section 11. 1
Accordingly, a person claiming to be a
Canadian citizen or refugee must first—this is
the first condition' imposed on his right of
appeal—append to his notice of appeal a decla
ration under oath setting out the essential
aspects of his claim and the facts on which it is
based. This declaration must then, and this is
the second condition, be considered by a "quo-
rum of the Board". If, after considering the
declaration 2 , the Board concludes that the claim
is not a serious one, it must direct that the
deportation order be executed as soon as practi
cable; the right of appeal is then lost. If, how
ever, consideration of the declaration indicates
to the Board that the claim is a serious one, "it
shall allow the appeal to proceed". As of that
moment the appellant referred to in paragraph
(c) or (cl) becomes a "full" appellant, and his
appeal must proceed like an appeal brought by â
person referred to in paragraph (a) or (b). It is
an appeal from a deportation order which may
be based, as indicated by section 11(1), on any
1 11. (2) Where an appeal is made to the Board pursuant
to subsection (1) and the right of appeal is based on a claim
described in paragraph (lxc) or (d), tl1e notice of appeal to
the Board shall contain ,or be accompanied by a declaration
under oath setting out
(a) the nature of the claim;
(b) a statement in reasonable detail of the facts on which
the claim is based;
(c) a summary in reasonable detail of the information and
evidence intended to be offered in support of the claim
upon the hearing of the appeal; and
(d) such other representations as the appellant deems
relevant to the claim.
(3) Notwithstanding any provision of this Act, where the
Board receives a notice of appeal and the appeal is based on
a claim described in paragraph (1)(c) or (d), a quorum of the
Board shall forthwith consider the declaration referred to in
subsection (2) and, if on the basis of such consideration the
Board is of the opinion that there are reasonable grounds to
believe that the claim could, upon the hearing of the appeal,
be established, it shall allow the appeal to proceed, and in
any other case it shall refuse to allow the appeal to proceed
and shall thereupon direct that the order of deportation be
executed as soon as practicable.
2 And not, it must be noted, on the basis of the facts
disclosed by the hearing conducted by the Special Inquiry
Officer, or other facts which may be established in any
hearing the Board may hold.
ground that involves a question of law or fact or
mixed law and fact. The Board must hear this
appeal and then decide it in one of the ways
provided by section 14:
14. The Board may dispose of an appeal under section 11
or section 12 by
(a) allowing it;
(b) dismissing it; or
(c) rendering the decision and making the order that the
Special Inquiry Officer who presided at the hearing
should have rendered and made. 1966-67, c. 90, s. 14.
As the Board, in making such a decision,
disposes of an appeal from a deportation order,
it is clear that it must only allow an appeal if it
appears that, in the circumstances disclosed by
the evidence, the order challenged should not
have been made.
If the Board comes to the conclusion that an
appeal from a deportation order should be dis
missed, it must then consider whether it would
be appropriate to grant appellant, whatever the
class of appellant to which he belongs, special
relief under section 15(1) 3 .
3 15. (1) Where the Board dismisses an appeal against an
order of deportation or makes an order of deportation
pursuant to paragraph 14(c), it shall direct that the order be
executed as soon as practicable, except that the Board may,
(a) in the case of a person who was a permanent resident
at the time of the making of the order of deportation,
having regard to all the circumstances of the case, or
(b) in the case of a person who was not a permanent
resident at the time of the making of the order of deporta
tion, having regard to
(i) the existence of reasonable grounds for believing
that the person concerned is a refugee protected by the
Convention or that, if execution of the order is carried
out, he will suffer unusual hardship, or [S.C. 1973-74, c.
27 s. 6.]
(ii) the existence of compassionate or humanitarian
considerations that in the opinion of the Board warrant
the granting of special relief,
direct that the execution of the order of deportation be
stayed, or quash the order or quash the order and direct the
grant of entry [or] landing to the person against whom the
order was made.
I come now to the facts which have given rise
to this appeal.
Respondent, who is of Chilean nationality,
arrived at Dorval on January 1, 1974 and
applied to be admitted to Canada as an immi
grant. As he did not appear to meet the require
ments of the Immigration Act, a deportation
order was made against him by a Special Inqui
ry Officer. Respondent claimed to be a political
refugee and immediately filed a notice of appeal
to the Board, accompanying his notice with a
sworn declaration, as prescribed under subsec
tion 2 of section 11. Shortly thereafter "a
quorum of the Board", instead of proceeding to
consider respondent's sworn declaration in the
manner provided by subsection (3) of section
11, held a hearing at which respondent and
appellant were represented. Counsel for
respondent, when asked by the Board to estab
lish that his client was a refugee protected by
the Convention, called several witnesses; coun
sel for the appellant did not call any witnesses.
Each side then submitted its representations to
the Board and the case was taken under advise
ment. On March 14, 1974 the Board handed
down two decisions (which however were not
signed until the following day). The order made
by the first of these decisions reads as follows:
THIS BOARD DIRECTS THAT the appeal brought against a
deportation order made against appellant on January 2, 1974
shall proceed.
That decision is not challenged by appellant,
which is appealing only against the second deci
sion. This decision reads as follows:
At the hearing of this appeal on March 4, 1974, in the
presence of counsel for appellant and for respondent, the
record and the representations made therein having been
read, and the evidence and pleadings having been heard;
THIS BOARD DIRECTS THAT this appeal, against a deporta
tion order made on January 2, 1974, be allowed, and it is so
allowed.
The reasons for judgment of the Board indi
cate that, from the evidence presented at the
hearings which it held, the Board concluded,
first, that respondent was in fact "a refugee
protected by the Convention". As, under the
Convention (as it was interpreted by the Board),
respondent could not be deported from Canada,
the Board also concluded that the deportation
order made against respondent was invalid, and
it accordingly allowed the appeal.
Counsel for the appellant submitted that this
finding should be reversed. He argued that a
deportation order is not invalid merely by virtue
of the fact that it was made against a person
who is "a refugee protected by the Conven
tion". In his submission, the only decision the
Board could arrive at on concluding its hearings
was to let the appeal proceed.
Counsel for the respondent defended the
legality of the Board's decision, maintaining that
the provisions of the Immigration Appeal Board
Act had the effect of incorporating the Conven
tion into Canadian domestic law.
The "United Nations Convention Relating to
.the Status of Refugees" is only referred to once
in the Immigration Appeal Board Act; that is in
the definition of the word "Convention" in sec
tion 2. The only purpose of this definition is to
clarify the meaning of the phrase "refugee pro
tected by the Convention" which is used in
sections 11(1)(c) and 15(1)(b). As I noted above,
section 11(1)(c) confers a right of appeal, under
certain conditions, on a person who claims to be
a "refugee protected by the Convention". As to
section 15(1)(b), it gives the Board the power,
where it dismisses an appeal from a deportation
order, to quash that order and direct that its
execution be stayed if reasonable grounds exist
for believing "that the person concerned is a
refugee protected by the Convention". That
being so it would appear that, in applying the
Immigration Appeal Board Act, the Board may
refer to the Convention Relating to the Status of
Refugees for two purposes only, namely:
1. to determine whether, under section 11, a
person who has been ordered deported ben
efits from a right of appeal to the Board, and
2. to determine whether there is a basis for
the Board to grant special relief under section
15(1).
Consequently, the fact that the Immigration
Appeal Board Act refers to the United Nations
Convention Relating to the Status of Refugees
does not have the effect of incorporating into
Canadian domestic law the prohibition con
tained in that Convention against deporting
refugees. Accordingly, a deportation order is
not invalid merely by virtue of the fact that it
was made against a refugee protected by the
Convention.
For these reasons I conclude that the decision
of the Board allowing the appeal of respondent
should be reversed, and the case referred back
to the Board for the appeal to proceed in
accordance with the Act.
* * *
HYDE D.J. concurred.
* * *
ST -GERMAIN D.J. concurred.
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.