A-650-80
Ana Vilma Irarrazabal-Olmedo (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Heald. and Urie JJ. and Kelly
D.J.—Toronto, April 8, 1981.
Judicial review — Immigration — Application to set aside
decision of Immigration Appeal Board that applicant was not
a Convention refugee — On the advice of the Manager of the
Immigration Appeals Office, the Board did not consider sub
missions of applicant's counsel nor affidavit of one Remedy
Whether the Board considered the totality of the evidence —
Application allowed — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28 — Immigration Act, 1976, S.C. 1976-77, c.
52, s. 70(2).
Toro v. Minister of Employment and Immigration [1981]
1 F.C. 652, referred to.
APPLICATION for judicial review.
COUNSEL:
B. Knazan for applicant.
M. Thomas for respondent.
SOLICITORS:
Knazan, Jackman & Goodman, Toronto, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: In my view, the decision of the
Immigration Appeal Board dated September 22,
1980, wherein it refused to allow the application
for refugee status to proceed and determined that
the applicant was not a Convention refugee, must
be set aside.
Under date of August 29, 1980, one M. Bhabba,
described as "Manager, Immigration Appeals
Office" wrote to the Registrar of the Immigration
Appeal Board as follows:
Re: Ana Vilma IRRARRAzABAL-Olmedo
This refers to the material submitted to the Board with respect
to an application for redetermination of a claim to be a
Convention refugee made by the above-named.
The Federal Court has ruled that the Board, under subsection
71(1) of the Immigration Act, cannot take into consideration
evidence other than the documents mentioned in subsection
70(2) of the Act.
See i) Angel Enrique Jimenez -Tapia versus Minister of
Employment and Immigration, unreported
ii) Nicanor Eduardo Vasconcellos-Riquelme versus
Minister of Employment and Immigration, unreported.
The material forwarded to the Board in this case includes a
document referred to in the material as Exhibit "B" to the
affidavit of Patricia Auron, which contains submissions made
to the Board by Colin Soule of the Community Legal Aid
Services Programme. This document does not appear to be the
type of document intended by subsection 70(2) to be included
for consideration by the Board. The same is true of the affidavit
of Juan Carlos Remedy.
The advice given to the Board in the above letter
is wrong in law. It is my belief that the submis
sions made by Colin Soule of the Community
Legal Aid Services Programme come within the
purview of section 70(2)(d) of the Immigration
Act, 1976, S.C. 1976-77, c. 52, which clearly
contemplates "such other representations as the
applicant deems relevant to the application."
Likewise, the affidavit of Juan Carlos Remedy,
since it is attached as Exhibit C to the applicant's
declaration, forms part of that declaration pursu
ant to section 70(2) and must therefore be includ
ed for consideration by the Board.
A perusal of the Board's reasons establishes that
no reference is made therein to the rather fulsome
submissions of applicant's counsel which are con
tained in the case (Case pages 61 to 64) nor is any
reference made in the reasons to the Remedy
affidavit. On this record it is not possible, in my
view, for the Court to be satisfied that the Board,
in making its decision, has had regard to the
totality of the material properly before it.' For
' Compare Toro v. Minister of Employment and Immigra
tion [1981] 1 F.C. 652.
these reasons, I would allow the section 28 applica
tion, set aside the decision of the Immigration
Appeal Board and refer the matter back to the
Board for redetermination on the basis that the
Board consider the totality of the material proper
ly before it.
* * *
URIE J.: I agree.
* * *
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.