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76-A-303
Tadeusz Adamusik (Applicant) v.
Minister of Manpower and Immigration (Respondent)
Court of Appeal, Jackett C.J., Pratte J. and Hyde D.J.—Ottawa, February 24, 1976.
Immigration—Application for leave to appeal decision of Immigration Appeal Board refusing to allow an appeal to the Board under s. 11 of Immigration Appeal Board Act—Wheth- er arguable question of law or jurisdiction—Immigration Appeal Board Act, R.S.C. 1970, c. I-3, s. 11 (as am. S.C. 1973-74, c. 27, s. 5) and s. 23.
The Immigration Appeal Board refused, under section 11, to allow applicant's appeal from a deportation order to proceed. Applicant contends that there is sufficient doubt as to the correctness of the decision; that his submissions are substantial; and that the Board erred in law in making an unsupported decision, in refusing to allow his appeal as a refugee to go on in the face of clear evidence that he is a refugee, and, in its application of section 11(3).
Held, leave to appeal should be refused. While it is doubtful whether an appeal lies under section 23 from a refusal to allow an appeal to go forward under section 11, no conclusion need be reached on the issue, for the application should be dismissed even if section 23 does apply. The question is whether a case has been made out. Under section 11, a person who has been ordered deported may appeal to the Board from the order if he is "a person who claims he is a refugee protected by the Convention"; his appeal must include a declaration under oath. The Board's duty was to refuse to allow the appeal to proceed unless on the basis of the consideration of the declaration, it was of the opinion that there were reasonable grounds to believe that, upon the hearing of the appeal, it could be established that applicant was a refugee protected by the Convention i.e. a person who, owing to a well-founded fear of being persecuted was outside the country of his nationality and unwilling or unable to avail himself of its protection. No reasonably arguable submission that the Board erred in law in not so concluding on the basis of its consideration of the declaration has been advanced.
APPLICATION. COUNSEL:
L. Kearley for applicant. G. Garton for respondent.
SOLICITORS:
Parkdale Community Legal Services, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
JACKETT C.J.: This is an application in writing under Rules 324 and 1107 for leave to appeal to this Court from a decision of the Immigration Appeal Board. Leave is sought under section 23 of the Immigration Appeal Board Act, subsection (1) of which reads as follows:
23. (1) An appeal lies to the Federal Court of Appeal on any question of law, including a question of jurisdiction, from a decision of the Board on an appeal under this Act if leave to appeal is granted by that Court within fifteen days after the decision appealed from is pronounced or within such extended time as a judge of that Court may, for special reasons, allow.
The decision of the Immigration Appeal Board from which leave to appeal is sought is a decision "refusing to allow the Applicant's appeal to that Board from an order of deportation made against the Applicant ... to go forward", which decision was made by that Board under section 11 of the Immigration Appeal Board Act as amended by section 5 of chapter 27 of the Statutes of 1973-74, which section reads in part:
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
(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.
(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 (1)(c) or (d), the 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 rele vant 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.
While I have doubt that an appeal lies to this Court under section 23 (supra) from a decision (under section 11(3) (supra)) refusing to allow an appeal to proceed, no conclusion has to be reached on that question, in my view, to dispose of this application, because the application for leave should, in my view, be dismissed even if section 23 is applicable in the case of such a section 11(3) decision.
Assuming that section 23 is applicable to such a decision under section 11(3), the question is whether a case has been made out for granting leave to appeal from the Board's decision refusing to allow the appeal from the deportation order made by the Special Inquiry Officer to proceed. (No question arises on such an application as to whether a case has been made out for leave to appeal to this Court from the deportation order itself, if there were such an appeal.)
The grounds set out in the notice of motion read as follows:
1. That there is sufficient doubt as to the correctness of the decision of the Immigration Appeal Board to merit the con sideration of this court on the questions of law.
2. That the submissions which the Applicant desires to present to this court (which submissions will be more fully set forth in the memorandum of points of law) are of a substantial nature.
3. That the Immigration Appeal Board erred in law in making a decision not supported at all by the evidence before it.
4. That the Immigration Appeal Board erred in law in refusing to allow the Applicant's appeal as a refugee to that Board to go
forward in the face of clear evidence that the applicant is a refugee.
5. That the Immigration Appeal Board erred in law in its application of Section 11, subsection (3) of the Immigration Appeal Board Act R.S.C. 1970, Chapter I-3, as amended.
In themselves, in my view, these "grounds" dis close no reasonably arguable question of "law" or "jurisdiction" upon which an attack on the Board's section 11(3) decision could be based. Further more, I find no such reasonably arguable question disclosed by the written submissions of counsel.
Briefly, as I understand it, the result of section 11 of the Immigration Appeal Board Act as enact ed in 1973, in so far as applicable in this case, is
(a) that a person against whom a deportation order is made may appeal to the Board from that deportation order on a question of law or fact or mixed law and fact, if he is "a person who claims he is a refugee protected by the Convention" (section 11(1)),'
(b) where a person claiming to be such a refugee does appeal, his appeal must include a "declaration under oath" containing specified information (section 11(2)), and
(c) where the Board receives such an appeal, a quorum of the Board is required to consider such "declaration" forthwith and if "on the basis of such consideration", it is not of opinion that there are reasonable grounds to believe that the "claim" to be such a refugee could, upon the hearing of the appeal, be established, it is required to "refuse to allow the appeal to pro ceed" (section 11(3)).
In this case, the applicant did appeal from a deportation order as a person who claimed to be a "refugee protected by the Convention" and, as required by section 11(2), he filed a declaration reading as follows:
' Whether or not he is such a refugee would appear to be completely irrelevant to the validity of the deportation order under the Immigration Act. Being such a refugee is, however, a possible basis for exercise of the Board's powers under section 15 of the Immigration Appeal Board Act if the appeal is allowed to proceed and is dismissed.
1. I was persecuted in Poland in that I was harassed in the exercise of my religion—the principal of the school which I attended singled out religious students for compulsory outside labour on Sundays to prevent the exercise of our faith.
2. I was prevented from getting employment due to my refusal to join the Communist Party or its youth organization, and was forced to pay bribe money to get any job at all.
3. I was denied permission to enter grade 12 due to my non-membership in the party and my religious belief.
4. I was forced to bribe a Government official to obtain a Polish passport to flee to Canada. I will undoubtedly be prose cuted for this Act.
5. The immediate reason that I decided to leave Poland was my draft into the armed forces, however, I had long believed that the Government of Poland would prevent me from achieving a decent life due to my refusal to renounce Christianity, and became [sic] a party member.
6. I did not receive a full and proper hearing at the Special Inquiry since
(a) The Special Inquiry Officer refused my counsel the right to inspect the record of my interview with the Officer-in-Charge.
(b) The Special Inquiry Officer refused me an adjournment to seek appropriate legal action to require that the document be released to my counsel.
(c) The Special Inquiry Officer refused my counsel permis sion to question me about my status as refugee, and treated the decision of the Interdepartmental Committee on Refugees as final; and
(d) I was effectively deemed a right to counsel because I was advised that I would not require counsel. Therefore I assent ed to being represented by my 70 year old great-aunt, whose presentation on my behalf was incoherent and incompetent.
As I understand the Board's duty under section 11(3) in this case, it was to refuse to allow the appeal to proceed, unless "on the basis" of its "consideration" of the above declaration, it was of opinion that there were reasonable grounds to believe that, upon the hearing of the appeal, it could be established that the appellant was a refugee protected by the Convention, which, by reference to the "Convention", means that, in this case, they had to make such an order unless they concluded that it was reasonable to believe that it could be established that he was a person who, owing to a well-founded fear of being persecuted for reasons of race, religion, nationality, member ship of a particular social group or political opin ion, was outside the country of his nationality and was unable or unwilling to avail himself of the
protection of that country. 2 In my view, no reason ably arguable submission has been put forward for the contention that the Board erred in law in not reaching that conclusion on the basis of its con sideration of the declaration and I have not myself been able to detect any such reasonably arguable submission.
In my view, for the above reason, leave to appeal should be refused.
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PRATTE J.: I agree.
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HYDE D.J.: I concur.
2 See the 1951 Convention relating to the Status of Refugees and section 1 of chapter 27 of the Statutes of 1973-74.
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