T-2366-80
Pedro Ernesto Leon Echeverria (Respondent)
(Plaintiff)
v.
Minister of Employment and Immigration,
Refugee Status Advisory Committee, and Deputy
Attorney General of Canada (Applicants)
(Defendants)
Trial Division, Smith D.J.—Winnipeg, December
1, 1980 and May 22, 1981.
Practice — Motion to strike pleadings — Defendants seek
to strike out statement of claim on the ground that it discloses
no reasonable cause of action — Plaintiff, a citizen of Chile
now residing in Canada, was denied Convention refugee status
— Outside evidence and information considered by the Minis
ter and the Refugee Status Advisory Committee — Plaintiff
submits the action raises questions of fact and law which
should not be dealt with summarily by motion — Rule of
fairness invoked — Whether the duty to act fairly applies to
the determination of refugee status under s. 45 of the Immi
gration Act, 1976 — Whether the action should be dealt with
by way of summary motion — Motion denied — Immigration
Act, 1976, S.C. 1976-77, c. 52, s. 45 — Federal Court Rule
419.
Minister of Manpower and Immigration v. Hardayal
[1978] 1 S.C.R. 470, considered. Martineau v. Matsqui
Institution Disciplinary Board [1980] 1 S.C.R. 602, con
sidered. Mensah v. Minister of Employment and Immi
gration [1982] 1 F.C. 70, distinguished.
MOTION.
COUNSEL:
Arne Peltz for respondent (plaintiff)
Craig Henderson for applicants (defendants).
SOLICITORS:
Ellen Street Community Legal Services,
Winnipeg, for respondent (plaintiff).
Deputy Attorney General of Canada for
applicants (defendants).
The following are the reasons for judgment
rendered in English by
SMITH D.J.: This is an application by the
defendants under Rule 419 for an order striking
out the statement of claim herein on the ground
that it does not disclose a reasonable cause of
action. The plaintiff claims that the action raises
important questions of fact and law relating to the
Canadian refugee claim procedure, which would
best be dealt with at the trial of the action, rather
than summarily, by way of motion.
The facts, as set forth in the statement of claim,
which for the purposes of this motion are taken to
be correct, may be summarized as follows.
The plaintiff is a citizen of Chile, presently
residing in Winnipeg, Canada. While residing in
Chile, between 1969 and March 1975, he was
politically active in an organization known as the
Frentes Izquierda and in other organizations. Fol
lowing the take-over of the Chilean Government
by a military coup in 1973 his political work was
carried on in a clandestine manner, in opposition
to the military government. As a result he was
arrested in March 1975 and held without charge
or trial until August 1975. While detained, in
addition to interrogations about his political activi
ties and associations, he was subjected to severe
tortures, including beatings, electric shock and
other physical and psychological tortures, resulting
in permanent physical scars and severe emotional
distress.
Upon release he fled to Argentina in fear for his
personal safety. Since then, because of a well-
grounded fear of persecution in Chile for his politi
cal opinion, he has remained outside his own
country.
He obtained temporary residence in Argentina,
where, in December 1977 he was detained by
Argentinian authorities on suspicion of political
activity in that country. He was released in Janu-
ary 1978, and applied to the Office of the United
Nations High Commissioner for Refugees for con
firmation of his status as a Convention refugee.
After investigation by the High Commissioner's
Office, this status was confirmed. In March 1979
he was again detained briefly by Argentinian
authorities. Upon his release he made arrange
ments to leave the country.
On May 19, 1979 the plaintiff arrived in
Canada. At the Toronto Airport he applied for
refugee status. An immigration inquiry, was com
menced and adjourned pursuant to section 45 of
the Immigration Act, 1976, S.C. 1976-77, c. 52.
On June 4 and June 20, 1979, he was examined
under oath by a Senior Immigration Officer. At
this examination he gave evidence inter alia con
cerning his receipt of Convention refugee status in
Argentina.
On dates not known to the plaintiff his claim to
refugee status was considered by the defendant,
the Refugee Status Advisory Committee, which
made a recommendation to the Minister or his
delegate. On a date not known to the plaintiff the
Minister or his delegate made a determination that
the plaintiff was not a Convention refugee.
The statement of claim then states that on each
occasion the Committee and the Minister or his
delegate considered and took into account infor
mation and evidence outside the transcript of the
plaintiff's examination under oath. At no time was
disclosure made to the plaintiff concerning the
nature or content of the outside evidence and
information, nor was the plaintiff given an oppor
tunity to explain or rebut that evidence or to make
submissions thereon. No hearing was held by the
Committee or by the Minister or his delegate.
At this point I note that the statement of claim
states merely that outside information and evi
dence were considered, without giving any indica
tion of either the source from which this fact was
obtained or as to what the information and evi
dence were about. I note further that section 45 of
the Act, which prescribes the procedure for deal
ing with claims for refugee status, says nothing
about a hearing being held by the Committee or
the Minister.
On April 24, 1980, the Committee notified the
plaintiff that the Minister had rejected his claim to
refugee status, and reasons for that decision were
provided.
The relief sought by the plaintiff in the action is
set out in the statement of claim (paragraph 18) as
follows:
18. The Plaintiff therefore claims as follows:
(a) a declaration that the Plaintiff is a convention refugee, and
is entitled to all of the rights and benefits arising from that
status in Canada.
(b) In the alternative, a declaration that the determination by
the Minister that the Plaintiff is not a convention refugee is
void and of no effect, for one or any of the following reasons:
(i) the Defendants have acted without and in excess of
jurisdiction and in violation of the audi alteram partem rule
of natural justice. (At the hearing on the Motion to Strike
Out, Counsel for the Plaintiff stated that this claim should be
struck out.)
(ii) In the alternative, the Defendants have violated the duty
which lies upon them to act fairly in deciding the Plaintiff's
claim to refugee status.
(iii) The Minister committed an error of law on the face of
the record in that the Minister applied the wrong standard of
proof in assessing the evidence of the Plaintiff as contained in
the examination under oath.
(iv) The Minister substituted his own opinion regarding the
significance of the Plaintiff's political activities in Chile for
the opinion of the governmental authorities in Chile, as they
are revealed in the evidence, thereby taking into account
irrelevant considerations.
(v) The Minister failed to take into account relevant con
siderations, to wit, the status of the Plaintiff as a convention
refugee in Argentina and the position of the U.N.H.C.R.
Office in Canada that the Plaintiff retained his refugee
status in Canada.
(vi) The Minister and the Committee acted in breach of their
obligations pursuant to the Convention, and in particular,
Article 35 thereof.
(c) Further to paragraph (b) herein, an Order of Mandamus, or
a Declaratory Order, that the Committee rehear the Plaintiff's
claim to refugee status according to law, and that the Minister
determine whether the Plaintiff is a convention refugee.
(d) The costs of this action.
Having admitted that the audi alteram partem
rule did not apply to decisions of a purely adminis
trative nature, counsel for the plaintiff (respond-
ent) submitted that the balance of the prayer for
relief raised important and difficult questions of
law and fact which should not be dealt with sum
marily on a motion, but rather should be left for
decision at the trial of the action, when all the
facts are known. He relied heavily on the general
rule that an administrative body, in making a
decision, must act fairly toward the person or
persons whose rights or interests will be affected
by the decision.
Counsel for the defendants (applicants), on the
other hand, contends that the rule of fairness does
not apply to the making of decisions concerning
refugee status under section 45 of the Immigration
Act, 1976. For this view of the law he relies on the
judgment of the Federal Court of Appeal in
Mensah v. Minister of Employment and Immigra
tion [1982] 1 F.C. 70. In that case, Pratte J.
speaking for the Court, said, at pages 70-71:
The applicant first said that the Minister's determination
was void by reason of the Minister's failure, before making his
determination, to give the applicant an opportunity to respond
to the objections that he, the Minister, had to the applicant's
claim. In order to dispose of that contention, it is sufficient to
say that a careful reading of sections 45 and following of the
Immigration Act, 1976 shows clearly that Parliament did not
intend to subject either the Minister or the Refugee Status
Advisory Committee to the procedural duty of fairness invoked
by the applicant.
Counsel for the plaintiff (respondent) submits
that the Mensah case is distinguishable from the
present case on several grounds. He states that in
Mensah the applicant sought an opportunity to
respond to "the objections that he, the Minister,
had to the applicant's claim," this being subse
quent to the Minister's determination of the issue,
whereas in the present case the plaintiff is seeking
"disclosure of the information being used by the
Committee and the Minister," and an opportunity
to comment thereon, before the decision of the
Minister is made. In my view, very little weight
can be accorded this argument, because the judg
ment in Mensah, though of course made with
relation to the facts of that case, says nothing
about the nature of the information being sought,
but rests on the broad view "that Parliament did
not intend to subject either the Minister or the
Refugee Status Advisory Committee to the proce
dural duty of fairness invoked by the applicant".
To my mind, these words mean that the Court had
concluded that the procedural duty of fairness is
not applicable to cases being dealt with under
section 45 of the Immigration Act, 1976.
The decisions of the Federal Court of Appeal
are of course binding on this Court and if its
decision in Mensah were the only one dealing with
the procedural duty of fairness the situation would
be clear. However, this duty of an administrative
tribunal to deal fairly with persons who will be
affected by its decisions has been considered on a
number of occasions in recent years, some of them
in relation to provisions of the Immigration Act. I
refer particularly to decisions of the Supreme
Court of Canada.
In The Minister of Manpower and Immigration
v. Hardayal [1978] 1 S.C.R. 470 the issue related
to the Minister's power under section 8 of the
Immigration Act, R.S.C. 1970, c. I-2, to grant, to
extend and particularly to cancel a permit to a
person to remain in Canada. At page 478 Spence
J. stated that he was strongly of the view that the
power was intended to be purely administrative
and not to be carried out in any judicial or quasi-
judicial manner. He went on to say [at pages
478-479]: "... 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". He was therefore
of the opinion that the Minister's decision did not
fall within those subject to review by the Federal
Court of Appeal under section 28 of the Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10. He did
state, however [at page 479]:
It is true that in exercising what, in my view, is an administra
tive 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 Court Act.
The present action had been brought under sec
tion 18 of the Federal Court Act. The last quoted
extract from the judgment of Mr. Justice Spence
speaks of the Minister being required to act fairly,
but does not indicate what is comprehended by the
word "fairly". It is not impossible to think that, in
relation to a person claiming refugee status, it
includes letting the claimant know about informa
tion in the Minister's possession relevant to the
claim and affording him an opportunity to respond
to it. The Supreme Court's view that the Minister
is required to act fairly in deciding whether to
grant or to cancel a permit to remain in Canada
should, in my opinion, be at least equally appli
cable where he is deciding whether a person is
entitled to refugee status. Perhaps in the latter
situation, the case for applying it is even stronger,
since, unlike the power to grant and cancel a
permit to remain in Canada, there is nothing in the
law relating to refugee status to indicate that the
status shall only be granted in unusual or excep
tional circumstances.
In Martineau v. Matsqui Institution Discipli
nary Board [1980] 1 S.C.R. 602, the Supreme
Court was concerned, inter alia, with fairness at a
hearing by the respondent Disciplinary Board. Mr.
Justice Dickson reviewed at some length the grow
ing scope of the requirement of fairness by
administrative tribunals. In expressing his conclu
sions on the present state of law, he said, at pages
630-631:
The content of the principles of natural justice and fairness
in application to the individual cases will vary according to the
circumstances of each case, as recognized by Tucker L. J. in
Russell v. Duke of Norfolk ([1949] 1 All E.R. 109), at p. 118.
His final conclusion [at page 631] was as follows:
8. In the final analysis, the simple question to be answered is
this: Did the tribunal on the facts of the particular case act
fairly toward the person claiming to be aggrieved? It seems to
me that this is the underlying question which the courts have
sought to answer in all the cases dealing with natural justice
and with fairness.
In my view this is not a case in which the
statement of claim should be struck out on a
summary motion. There is a dispute between the
parties as to the applicable law, which, after con
sidering the above and other decisions of the
Supreme Court, along with those of the Federal
Court of Appeal in Mensah, supra, and Brempong
v. Minister of Employment and Immigration
[1981] 1 F.C. 211, seems to be not entirely certain.
There is also some question about facts. Such
questions are better dealt with at the trial, in the
light of all the facts then known, rather than on a
summary motion to strike out the statement of
claim.
Having concluded that the statement of claim
should, for the foregoing reasons, not be struck out
on this motion, I find it unnecessary to discuss any
of the other arguments advanced by counsel for
the parties.
The motion is denied, with costs to the respond
ent (plaintiff).
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