A-836-77
Hassan Darwich (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Jackett C.J., Pratte and Urie
JJ.—Ottawa, October 16, 1978.
Immigration — Deportation — Appeal from refusal by
Immigration Appeal Board to allow appellant (applicant) to
proceed with appeal to that Board from a deportation order,
and direction that deportation order be executed — Board's
deciding appellant fled civil war in his country but not perse
cution — Whether or not Board erred in forming opinion that
no reasonable ground to believe appellant a refugee — Alter
natively, whether or not Board erred in law by not forming an
opinion on that question — Immigration Appeal Board Act,
R.S.C. 1970, c. I-3, s. 11(1),(2),(3).
APPEAL.
COUNSEL:
Terrence Jabour for applicant.
L. S. Holland for respondent.
SOLICITORS:
Jabour & Hunter, Ottawa, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
delivered orally in English by
JACKETT C.J.: This is an appeal from a decision
under section 11(3) of the Immigration Appeal
Board Act,' R.S.C. 1970, c. I-3, by which, in
effect, the Immigration Appeal Board refused to
allow the appellant to proceed with an appeal to
that Board from a deportation order and directed
that the deportation order be executed as soon as
practicable.
' Section 11 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
(Conlinuerl on next page)
In my opinion, the appeal to this Court must be
dismissed, unless (a) the Board erred in law in
forming the opinion, on the basis of a consider
ation of a declaration filed by the appellant under
section 11(2), that there were not reasonable
grounds to believe that the appellant's claim that
he was a refugee protected by the Convention
concerning refugees could, on the hearing of the
appeal, be established, or (b) the Board erred in
law by not forming an opinion on that question.
In my view, the appeal must be dismissed, not
withstanding that the Board did not, by its rea
sons, express its conclusion in the words of the
statute.
In effect, as I read the Board's reasons, an
opinion is expressed that the appellant may have
"fled" the civil war in his country but did not flee
"persecution". 2 As I understand it, in the context
(Continued f, oui previous page)
(c) a person who claims he is a refugee protected by the
Convention; or
(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
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 The reasons read in part:
Article 1A(2) of the Convention Relating to the Status of
Refugees defines the term "refugee" as follows:
"[any person who] owing to well-founded fear of being
persecuted for reasons of race, religion, nationality, mem
bership of a particular social group or political opinion, is
of this case, the opinion is thereby expressed that
the appellant was not outside his country "owing
to . .. fear of being persecuted for reasons of . ..
religion ..." and, consequently, did not fall within
the Convention definition of "refugee". If, on a
consideration of the declaration, the Board was of
opinion that the appellant was not a "refugee", it
must have been of opinion that the declaration did
not disclose reasonable grounds to believe that the
claim to refugee status could, upon the hearing of
the appeal, be established.
Furthermore, in my view, the Board did not err,
in law, in forming the opinion, on a consideration
of the declaration, that the appellant did not flee
his native country by reason of "persecution". As I
read the declaration, that conclusion is a fair
conclusion from the statements in the declaration.
It follows that, in my opinion, the appeal should
be dismissed.
* * *
PRATTE J. concurred.
* * *
URIE J. concurred.
outside the country of his nationality and is unable or,
owing to such fear, is unwilling to avail himself of the
protection of that country; or who, not having a nationality
and being outside the country of his former habitual
residence as a result of such events, is unable, or owing to
such fear, is unwilling to return to it."
A careful examination of the appellant's declaration shows
that he was probably anxious to see his wife again in Canada,
but he is not a refugee protected by the Convention. He may
have fled the civil war in his country, but, to repeat the
opinion of the Chairman of the Board in his judgment in the
case of Elias Iskandar Ishac v. the Minister of Manpower
and Immigration, (M77-1040) I.A.B., Scott, Houle, Legaré
(not yet published), dated April 25, 1977: "A civil war, even
on religious grounds, is not persecution as contemplated by
the Convention".
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.