A-362-77
Waclaw Antoni Mihael Hurt (also known as Wal-
lace Hurt) (Appellant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Heald and Ryan JJ. and Kelly
D.J.—Toronto, January 24 and 25, 1978.
Judicial review — Immigration — Refugee status — Immi
gration Appeal Board refused to allow appellant's appeal to
proceed, and directed execution of deportation order —
Appellant Polish national — Resident of West Germany on
temporary visas prior to visits to Canada and U.S. — Board
decided not refugee from Germany — Error in law — Immi
gration Appeal Board Act, R.S.C. 1970, c. I-3, s. 11 — United
Nations Convention Relating to the Status of Refugees HCR/
INF/29/Rev. 2, Chapter 1, Article 1, paragraphs A(2), C(3), E
— Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
The Immigration Appeal Board considered the declaration
that had been made in the course of appellant's application for
refugee status, refused to allow his appeal to proceed and
directed execution of the deportation order against him. Appel
lant claimed to be a refugee from Poland because of both his
birth there and his continuing Polish nationality. The Board,
however, examined the declaration from the point of view of
whether or not he was a refugee from West Germany where he
had lived for a number of years on temporary visas prior to his
visits to Canada and the United States. Appellant appeals the
Board's decision.
Held, the application to review is allowed and the matter is
referred back to the Board for re-determination. The definition
of refugee in the United Nations Convention Relating to the
Status of Refugees clearly requires the Board to view the
evidence contained in the declaration in light of the appellant's
status as a Polish National. The Board should have formed an
opinion, based on the declaration as to whether or not at a
hearing of his claim, the appellant could establish his claim as a
refugee from Poland. In failing to do so, the Board has commit
ted a serious error in law—one which might well have affected
the determination of the question it was called upon to answer.
APPLICATION for judicial review.
COUNSEL:
Laurence Kearley for appellant.
B. Evernden for respondent.
SOLICITORS:
Laurence Kearley, c/o Parkdale Community
Legal Services, Toronto, for appellant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
HEALD J.: I have the view that the judgment of
the Immigration Appeal Board herein, delivered
on March 30, 1977 cannot be allowed to stand. By
that judgment, the Board, pursuant to subsection
11(3) of the Immigration Appeal Board Act,
R.S.C. 1970, c. I-3, considered the declaration of
the appellant dated February 28, 1977, filed pur
suant to subsection 11(2) of that Act, and refused
to allow appellant's appeal to proceed and further
directed that the deportation order against the
appellant be executed as soon as practicable.
In its reasons for judgment, the Board stated
(Appeal Book, page 36):
The Board is of the opinion that the appellant is not a
refugee from West Germany where he had spent a period of
five years and from where he was free to travel to the United
States, Canada, back to the United States and again to
Canada. It is noted that he never applied for refugee status
until February 28, 1977. Mr. Hurt did not suffer any persecu
tion while he was in Germany and therefore, no reasonable
grounds have been introduced to show the Board that the claim
could, upon the hearing of the appeal, be established.
The above statement makes it clear that the
Board asked itself the wrong question in entering
into an examination of appellant's declaration
from the point of view of whether or not he was a
refugee from West Germany. The appellant claims
to be a refugee from Poland, based on his birth in
Poland and the fact that he continues to have
Polish nationality (see Appeal Book pages 4 and
6). The United Nations Convention and Protocol
defines the term "refugee" as follows:
the term "refugee" shall apply to any person who:... owing to
well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or
political opinion, is outside the country of his nationality and is
unable or, owing to such fear, is unwilling to avail himself of
the protection off that country.... (Underlining is mine.)'
' United Nations Convention Relating to the Status of
Refugees HCR/INF/29/Rev. 2. Chapter 1, Article 1, para
graph A(2).
This definition clearly required the Board, in
this case, to view the evidence contained in the
declaration in the light of the appellant's status as
a Polish National. The Board should have formed
an opinion, based on the declaration as to whether
or not at a hearing of his claim, the appellant
could establish his claim as a refugee from Poland.
In failing to do so, the Board has, in my view,
committed a serious error in law, one which might
well have affected the determination of the ques
tion it was called upon to answer.
Counsel for the respondent, while conceding
that the Board was obliged, on the facts of this
case, to weigh the declaration on the basis that the
claim for refugee status was as a Polish National,
if Article 1, paragraph A(2) applies in the instant
case, submitted nevertheless that if the Board con
cluded, after considering the declaration, that the
claim for refugee status was not a serious one, it is
required to refuse to allow the appeal to proceed.
Counsel relies on the decision of the Court in
Minister of Manpower and Immigration v.
Fuentes 2 for this submission. He then refers to the
Board's statement on page 36 of the Appeal Book
to the effect that the appellant never applied for
refugee status until February 28, 1977. He asks
the Court to infer from this statement that since
the appellant had been in Canada since 1975, if he
was really serious in his intention to claim refugee
status in Canada, he would have done so long
before February 28, 1977. The answer to this
submission is to be found on page 33 of the Appeal
Book where the appellant states, in his declaration,
that he arrived in Canada on September 5, 1975 to
visit relatives in Toronto, that he went to the
U.S.A. on October 6, 1975, returning to Canada
on November 11, 1975 "to claim refugee status".
Thus the declaration clearly establishes an inten
tion by the appellant to claim refugee status in
Canada since November 11, 1975.
The other argument advanced by counsel for the
respondent is that refugee status is lost, where,
inter alla, a person is recognized by the competent
authorities of the country in which he has taken
residence as having the rights and obligations
which are attached to the possession of the nation
2 [1974] 2 F.C. 331 at p. 334.
ality of that country. Counsel relies on the Con
vention Relating to the Status of Refugees, Chap
ter 1, Article 1, paragraphs C(3) and E. Those
paragraphs read as follows:
C. This Convention shall cease to apply to any person falling
under the terms of section A if:
(3) He has acquired a new nationality, and enjoys the
protection of the country of his new nationality; ...
E. This Convention shall not apply to a person who is recog
nized by the competent authorities of the country in which he
has taken residence as having the rights and obligations which
are attached to the possession of the nationality of that country.
It is the submission of counsel that since this
appellant had resided in West Germany legally for
some four years, he was a person recognized by the
competent West German authorities as having the
rights and obligations which are attached to the
possession of West German nationality. In my
view, this submission is not substantiated by the
evidence contained in the appellant's declaration.
A perusal of that portion of the declaration con
tained on pages 31 to 33 of the Appeal Book
makes it clear that the appellant alleges that he
was only able to stay in West Germany by virtue
of temporary visas, that he had been unable to
obtain status as a permanent resident, that he had
been advised the Germans wished to deport him
back to Poland and that his temporary visa, which
was due to expire on November 25, 1975, would
not be renewed. In my opinion, this evidence serves
to negate, rather than to affirm, the allegation that
the appellant had any rights similar to those
attached to West German nationality. I am there
fore of the view that paragraphs C(3) and E, set
out supra, cannot operate, on the facts of this case,
to exclude the operation of paragraph A(2) of
Article 1 of the Convention.
For the foregoing reasons, I would refer this
matter back to the Immigration Appeal Board for
a re-determination on the basis that the appellant
claims status as a refugee from Poland.
* * *
RYAN J.: I concur.
* * *
KELLY D.J.: I concur.
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.