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A-585-78
Angel Enrique Jiminez Tapia (Applicant) v.
Minister of Employment and Immigration (Respondent)
Court of Appeal, Pratte and Urie JJ. and Kelly D.J.—Toronto, March 7; Ottawa, March 23, 1979.
Judicial review — Immigration — Immigration Appeal Board decision concerning applicant's status as Convention refugee made on basis of material Board not entitled to take into account — Board's decision largely founded on letter written by applicant's examining physician who conducted the examination after applicant made application for redetermi- nation, rather than on a sole consideration of documents mentioned in s. 70(2) — Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 70(1),(2), 71(1) — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review. COUNSEL:
F. Rotter for applicant.
G. Garton for respondent.
SOLICITORS:
Frederika M. Rotter, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for judgment rendered in English by
PRATTE J.: This is a section 28 application to review and set aside a decision of the Immigration Appeal Board determining, under section 71(1) of the Immigration Act, 1976, S.C. 1976-77, c. 52, that the applicant is not a Convention refugee.
In order to dispose of this application, I need not consider all the grounds of attack put forward on behalf of the applicant. In my view, the Board's decision must be set aside because it was made on
the basis of material that the Board was not entitled to take into account.
That decision was made under section 71(1) following an application made pursuant to section 70. Those two sections of the Immigration Act, 1976 read as follows:
70. (1) A. person who claims to be a Convention refugee and has been informed in writing by the Minister pursuant to subsection 45(5) that he is not a Convention refugee may, within such period of time as is prescribed, make an application to the Board for a redetermination of his claim that he is a Convention refugee.
(2) Where an application is made to the Board pursuant to subsection (1), the application shall be accompanied by a copy of the transcript of the examination under oath referred to in subsection 45(1) and shall contain or be accompanied by a declaration of the applicant under oath setting out
(a) the nature of the basis of the application;
(b) a statement in reasonable detail of the facts on which the application is based;
(c) - a summary in reasonable detail of the information and evidence intended to be offered at the hearing; and
(d) such other representations as the applicant deems rele vant to the application.
71. (1) Where the Board receives an application referred to in subsection 70(2), it shall forthwith consider the application and if, on the basis of such consideration, it is of the opinion that there are reasonable grounds to believe that a claim could, upon the hearing of the application, be established, it shall allow the application to proceed, and in any other case it shall refuse to allow the application to proceed and shall thereupon determine that the person is not a Convention refugee.
Section 71(1) requires that the decision of the Board be made on the basis of the consideration of the "application referred to in subsection 70(2)". This means, in my view, that the Board, at that preliminary stage, must base its decision on the sole consideration of the documents mentioned in section 70(2).
In the present case, the Board clearly failed to, comply with that rule since its decision is, in a large part, founded on the consideration of a letter written by a doctor who had apparently examined the applicant after he had made his application for redetermination.
For these reasons, I would allow the application, set aside the decision under attack and refer the matter back to the Board for decision on the basis
that, under section 71(1), the Board cannot take into consideration evidence other than the docu ments mentioned in section 70(2).
* * * URIE J.: I agree.
* * * KELLY D.J.: I concur.
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