A-576-79
Samuel Badu Brempong (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Heald and Urie JJ. and Maguire
D.J.—Winnipeg, May 1; Ottawa, June 9, 1980.
Judicial review — Immigration — Application to review
and set aside determination of the respondent that applicant
not a Convention refugee — Whether this Court has jurisdic
tion to entertain application for judicial review of ministerial
decision — Immigration Act, 1976, S.C. 1976-77, c. 52, ss.
45(1),(2),(4), 70(1), 71 — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28.
This is a section 28 application to review and set aside
respondent's determination that the applicant is not a Conven
tion refugee. The applicant who was admitted to Canada as a
visitor, became the subject of an immigration inquiry which
was adjourned due to his claim that he was a Convention
refugee. In accordance with section 45(2) of the Immigration
Act, 1976, that claim together with the transcript of the
examination held pursuant to section 45(1) of the Act, were
referred to the respondent who, after having obtained the
advice of the Refugee Status Advisory Committee pursuant to
section 45(4) of the Act, made the determination herein. The
issue is whether this Court has jurisdiction to entertain this
application for judicial review of the ministerial decision.
Applicant argues that section 45(2) and (4) is part of the
hearing process required to be carried out in a quasi-judicial
manner.
Held, the application is dismissed. The Minister's power
under section 45(2) and (4) of the Immigration Act, 1976, is
purely administrative and not required to be carried out in a
quasi-judicial manner. That power to grant status as a Conven
tion refugee arises when the Minister decides that a claimant
meets the standards prescribed by the Act and it is difficult to
conceive that a hearing (in the broad sense of that term) was
ever contemplated or should be required in the exercise of this
power. Having provided the mechanism for putting forward the
claim in question, Parliament has given the responsibility for
making the decision to the Minister in a non-judicial way.
Minister of National Revenue v. Coopers and Lybrand
[1979] 1 S.C.R. 495, referred to. Nicholson v. Haldi-
mand-Norfolk Regional Board of Commissioners of
Police [1979] 1 S.C.R. 311, referred to. Minister of
Manpower and Immigration v. Hardayal [1978] 1 S.C.R.
470, followed.
APPLICATION for judicial review.
COUNSEL:
D. Matas for applicant.
C. J. Henderson for respondent.
SOLICITORS:
D. Matas, Winnipeg, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
URIE J.: This is a section 28 application to
review and set aside the determination of the
respondent made on September 13, 1979 that the
applicant was not a Convention refugee. This
application was argued together with, and on the'
same grounds as that of Taabea v. Minister of
Employment and Immigration, Court No. A-577-
79. That applicant is the wife of the applicant
herein.
The applicant, a teacher by profession and a
citizen of Ghana, was admitted to Canada as a
visitor in February, 1977. As a result of his over
staying his visitor's visa, and working without
authorization, he became the subject of an immi
gration inquiry which was adjourned as required
by section 45(1)' of the Immigration Act, 1976,
S.C. 1976-77, c. 52, due to the applicant's claim
that he is a Convention refugee. He was examined
under oath by a senior immigration officer respect
ing this claim and was represented by counsel at
the examination. The claim, together with the
transcript of the examination, was referred to the
Minister for determination, in accordance with
' 45. (I) Where, at any time during an inquiry, the person
who is the subject of the inquiry claims that he is a Convention
refugee, the inquiry shall be continued and, if it is determined
that, but for the person's claim that he is a Convention refugee,
a removal order or a departure notice would be made or issued
with respect to that person, the inquiry shall be adjourned and
that person shall be examined under oath by a senior immigra
tion officer respecting his claim.
section 45(2) 2 of the Act. The Minister then, as
required by section 45(4) 3 of the Act, referred the
claim and the transcript of the examination to the
Refugee Status Advisory Committee for consider
ation, and "after having obtained the advice of
that Committee ...", determined that the appli
cant was not a Convention refugee. Both the appli
cant and the senior immigration officer were noti
fied of this determination.
The applicant herein and his wife, within the
time prescribed in the Act, each applied to the
Immigration Appeal Board under section 70(1) of
the Act, for redetermination of their claims that
they are Convention refugees.
Subsequently the applicant filed this section 28
application to review and set aside the determina
tion of the Minister that he is not a Convention
refugee. On the applicant's behalf counsel also, we
were advised, instituted an action in the Trial
Division against the Refugee Status Advisory
Committee, the Minister of Employment and
Immigration and the Attorney General of Canada,
seeking orders of mandamus against the first two
named defendants and a declaration against the
Attorney General in respect of the rights claimed
on behalf of the applicant herein.
As a result of an application filed on behalf of
the applicant herein, the Trial Division granted an
order that the Minister of Employment and Immi
gration send or deliver to the applicant or his
counsel, in writing, the reasons for his determina
tion that the applicant is not a Convention refugee.
With respect, I have grave doubts as to the pro
priety of requiring the Minister to give such rea
sons. However, that question is not one upon which
2 45....
(2) When a person who claims that he is a Convention
refugee is examined under oath pursuant to subsection (1), his
claim, together with a transcript of the examination with
respect thereto, shall be referred to the Minister for
determination.
3 45....
(4) Where a person's claim is referred to the Minister
pursuant to subsection (2), the Minister shall refer the claim
and the transcript of the examination under oath with respect
thereto to the Refugee Status Advisory Committee established
pursuant to section 48 for consideration and, after having
obtained the advice of that Committee, shall determine whether
or not the person is a Convention refugee.
we are called to make a decision in this applica
tion. The order also provided that until the appli
cant or his counsel have received the said reasons
and have been given a reasonable opportunity to
submit to the respondent Immigration Appeal
Board responses to the Minister's reasons, the
Board is prohibited from considering the applica
tion of the applicant for redetermination of his
claim that he is a Convention refugee. We were
advised by counsel that an appeal from this order
was filed but, for some unspecified reason, it has
been withdrawn. In compliance with the order, the
Minister apparently provided reasons for his deci
sion but they are not part of the record in this
application, although they ought to have been if
we are properly to consider this application on its
merits since what was said by the Minister forms
the basis of the attack on his determination of the
issue before him.
However, the threshold issue which must be
resolved before the merits of the application may
be examined is, of course, the jurisdiction of this
Court to entertain an application for judicial
review of this ministerial decision. That jurisdic
tion, if it exists, is derived from section 28(1) of
the Federal Court Act, R.S.C. 1970 (2nd Supp.),
c. 10, which reads as follows:
28. (1) Notwithstanding section 18 or the provisions of any
other Act, the Court of Appeal has jurisdiction to hear and
determine an application to review and set aside a decision or
order, other than a decision or order of an administrative
nature not required by law to be made on a judicial or
quasi-judicial basis, made by or in the course of proceedings
before a federal board, commission or other tribunal, upon the
ground that the board, commission or tribunal [emphasis mine]
(a) failed to observe a principle of natural justice or other
wise acted beyond or refused to exercise its jurisdiction;
(b) erred in law in making its decision or order, whether or
not the error appears on the face of the record; or
(c) based its decision or order on an erroneous finding of fact
that it made in a perverse or capricious manner or without
regard for the material before it.
Mr. Justice Dickson in the recent Supreme
Court decision in M.N.R. v. Coopers and
Lybrand 4 had this to say about the problems posed
by section 28(1):
4 [1979] I S.C.R. 495 at pp. 499-500.
Section 28 jurisdiction to hear and determine an application
to review and set aside extends only to:
... a decision or order other than a decision or order of an
administrative nature not required by law to be made on a
judicial or quasi-judicial basis, made in the course of pro
ceedings before a federal board, commission or other
tribunal.
The convoluted language of s. 28 of the Federal Court Act has
presented many difficulties, as the cases attest, but it would
seem clear that jurisdiction of the Federal Court of Appeal
under that section depends upon an affirmative answer to each
of four questions:
(1) Is that which is under attack a "decision or order" in the
relevant sense?
(2) If so, does it fit outside the excluded class, i.e. is it "other
than a decision or order of an administrative nature not
required by law to be made on a judicial or quasi-judicial
basis"?
(3) Was the decision or order made in the course of
"proceedings"?
(4) Was the person or body whose decision or order is chal
lenged a "federal board, commission or other tribunal" as
broadly defined in s. 2 of the Federal Court Act?
The real difficulty in this case lies in affirma
tively answering question (2). Is the determination
of the Minister as to whether a claimant is a
Convention refugee or not "a decision or order of
an administrative nature not required by law to be
made on a judicial or quasi-judicial basis?"
In the recent decision of the Supreme Court in
Nicholson v. Haldimand-Norfolk Regional Board
of Commissioners of Polices, the majority of the
Court held that there may be in certain circum
stances a procedural duty to act fairly that is
different from the traditional requirements of
natural justice. Furthermore such duty does not
depend for its existence on the distinction between
judicial or quasi-judicial functions and administra
tive functions. Accepting that as the applicable,
current judicial thinking, nonetheless section 28 by
its terms retains the distinction as one of the bases
for ascertaining whether the Federal Court of
Appeal has jurisdiction to review decisions of fed
eral boards, commissions or other tribunals.
5 [1979] I S.C.R. 311.
Fortunately, in reaching a decision on that ques
tion in this case, assistance may be derived from
another decision of the Supreme Court in the
Minister of Manpower and Immigration v.
Hardayal 6 . In that case the respondent had
applied for admission to Canada as a landed immi
grant but upon his examination before an immi
gration officer he was found not to qualify for such
status. Because his wife was a Canadian citizen, he
was granted a ministerial permit to remain in
Canada for a specified period. About two and one
half months before it was due to expire the Minis
ter cancelled the permit and the respondent was
ordered to leave Canada. Since he failed to do so,
an inquiry was held but it was adjourned to enable
the respondent to bring a section 28 application to
review and set aside the decision purporting to
cancel the permit on the ground that the respond
ent was not given the opportunity which he ought
to have had to be heard on the question as to
whether the permit should be cancelled.
Spence J. at page 478 of the report had the
following to say on the question of whether or not
the act of the Minister in cancelling the permit
was an order of an administrative nature "required
by law to be made on a judicial or quasi-judicial
basis":
Having regard for the detailed directions as to permitting
entry of immigrants and as to the refusal to permit entry, or the
deportation of those who have entered Canada, set out in the
many provisions of the Immigration Act, I am strongly of the
view that the Minister's power under s. 8 of the Immigration
Act to grant, to extend, or cancel a permit with no direction as
to the method which is to be used in the exercise of the power
and, for the present purposes, no limitation on the persons who
may be the subject of such permits, was intended to be purely
administrative and not to be carried out in any judicial or
quasi-judicial manner, and that, in fact, to require such permit
to be granted, extended or cancelled only in the exercise of a
judicial or quasi-judicial function would defeat Parliament's
purpose in granting the power to the Minister. As I have said,
the evidence indicates that the power is only used in exceptional
circumstances and chiefly for humanitarian purposes. Such
power was, in the opinion of Parliament, necessary to give
flexibility to the administration of the immigration policy, and I
cannot conclude that Parliament intended that the exercise of
the power be subject to any such right of a fair hearing as was
advanced by the respondent in this case. It is true that in
exercising what, in my view, is an administrative power, the
Minister is required to act fairly and for a proper motive and
his failure to do so might well give rise to a right of the person
affected to take proceedings under s. 18(a) of the Federal
6 [19781 1 S.C.R. 470.
Court Act but, for the reasons which I have outlined, I am of
the opinion that the decision does not fall within those subject
to review under s. 28 of the said Federal Court Act.
In my opinion this reasoning applies equally
cogently to the Minister's determination as to
whether or not a claimant is a Convention refugee.
One of the criteria referred to by Dickson J. in the
Coopers and Lybrand case, supra, for resolving
whether or not an action by a tribunal is one to be
taken on a judicial or quasi-judicial basis is wheth
er a hearing is required. Counsel for the applicant
here stressed the fact that section 45(1) of the
Immigration Act, 1976 requires an examination
under oath and that section 45(6) grants to the
applicant the right to counsel. That, he said, is a
hearing. In his submission the subsequent referral
of the claim and the transcript of the examination
by the Minister to the Refugee Status Advisory
Committee pursuant to section 45(4) and the
advice of that Committee to the Minister are all
part of the hearing process that is required to be
carried out in a quasi-judicial manner. As a result,
he said, if the Minister or the Committee in reach
ing the decision, takes into account knowledge
which was not available or canvassed during the
examination under oath, the claimant ought to be
given the opportunity to respond to the conclusions
drawn from such knowledge.
I do not agree. Assuming, without deciding, that
for the purposes of this case, the examination is a
hearing', in my view it ends when the examination
ends. Thereafter, what goes on is purely adminis
trative in nature and is not required to be carried
out in a quasi-judicial manner. The origin of the
Convention relating to refugees arose, of course,
out of humanitarian considerations which was one
of the elements the Minister had to take into
account in the situation in the Hardayal case.
However, the power given the Minister to grant
status as a Convention refugee arises when the
Minister decides that a claimant meets the stand
ards prescribed by the Immigration Act, 1976 and
I find it difficult to conceive that a hearing (in the
broad sense of that term) was ever contemplated
or should be required in the exercise of this power.
' It should be noted that, if it is it would be non-adversarial
in nature since the Minister is not represented by counsel—only
the claimant is entitled to be.
Of course, it is clear that the Minister is required
to act fairly and failure to do so might, as Spence
J. pointed out in the Hardayal case, permit the
applicant to initiate other proceedings to remedy
such a deficiency. However, that does not entitle
the applicant to recourse to section 28 proceedings
before this Court since we are deprived of jurisdic
tion because the impugned decision is one not
required to be made on a judicial or quasi-judicial
basis.
My view in this regard is reinforced by the fact
that sections 70 and 71 of the Immigration Act,
1976, provide for a dissatisfied claimant for
refugee status, the right to apply to the Immigra
tion Appeal Board for a redetermination of his
claim. The application to the Board must be
accompanied by a declaration, under oath, in
which the applicant is required to set forth in
reasonable detail the facts, information and evi
dence upon which he intends to rely. Thus, it may
supplement the evidence adduced in the examina
tion before the senior immigration officer. It is in
the nature of a "hearing" de novo. This Court has
held that the redetermination is amenable to sec
tion 28 relief in appropriate cases because it must
be made on a quasi-judicial basis. The claimant's
rights will not finally be determined until all reme
dies available to him have been exhausted. The
applicant herein recognizes that fact in that, as
already pointed out, he has already applied to the
Immigration Appeal Board for a redetermination
with all the rights accruing therefrom, including
the right to apply to this Court under section 28 of
the Federal Court Act for appropriate relief.
It is noteworthy too, that in the Immigration
Act, 1976, Parliament provided for those persons
whose status is to be determined by the Act,
protection from bureaucratic abuse by inquiries
and investigations required to be conducted in such
a manner that the rules of natural justice are
complied with. By the same token, however, the
Act has a number of provisions enabling the Min
ister to make decisions which are not so circum
scribed. Those decisions, of course, must be made
fairly and not arbitrarily or capriciously or from
improper motives. Clearly the scheme of the Act
envisages that for its efficient administration this
must be so. The determination of whether or not a
claimant should be accorded the status of Conven
tion refugee is a decision, I think, of such a nature.
Before it is made the claimant has had the oppor
tunity to put forward his claim orally and with the
assistance of counsel but Parliament, having pro
vided the mechanism for putting forward the
claim, has given the responsibility for making the
decision to the Minister in a non-judicial way.
For all of the above reasons, I am, therefore, of
the opinion that this Court is without jurisdiction
in this application. For that reason, it is both
unnecessary and undesirable in view of the other
proceedings which are still under way, to deal with
the merits of the application.
Accordingly, for all of the above reasons, I
would dismiss the application.
* * *
HEALD J.: I concur.
* * *
MAGUIRE D.J.: I concur.
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