T-3537-81
Harbans Kaur Bashir (Applicant)
v.
Immigration Appeal Board (Respondent)
Trial Division, Mahoney J.—Toronto, September
14; Ottawa, September 16, 1981.
Immigration — Prerogative writs — Certiorari, mandamus
— Respondent rejected application for redetermination of
applicant's claim that she was a Convention refugee because
applicant failed to file a declaration in accordance with s.
70(2) of the Immigration Act, 1976 — Respondent subse
quently refused to permit applicant to perfect application on
the ground that the omission was a substantial defect that
nullified the application — Applicant seeks certiorari quash
ing first decision and mandamus directing respondent to
permit applicant to perfect the application, or mandamus
directing respondent to hear the application on the basis that
the omission does not render the application a nullity —
Whether this Court has the jurisdiction to grant the relief
sought — Whether respondent has authority to permit perfec
tion of an application beyond the period prescribed for making
the application — Whether it is mandatory that application be
accompanied by declaration under oath — Application
allowed — Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 70,
71 — Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss.
18, 28.
Minister of National Revenue v. Coopers and Lybrand
[1979] 1 S.C.R. 495, applied. In re Anti-dumping Act and
in re Danmor Shoe Co. Ltd. [1974] 1 F.C. 22, applied.
Woldu v. Minister of Manpower and Immigration [1978]
2 F.C. 216, applied.
APPLICATION.
COUNSEL:
M. Green, Q.C. for applicant.
B. Evernden for respondent.
SOLICITORS:
Green & Spiegel, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
MAHONEY J.: This application was heard to
gether with that of the applicant's husband, Harb-
hajan Singh Washir, Court file No. T-3539-81.
The material facts are identical.
The applicant was admitted to Canada as a
visitor. She claimed Convention refugee status.
The Minister determined that she was not a Con
vention refugee. She applied for a redetermination
by the respondent pursuant to section 70 of the
Immigration Act, 1976, 1 which provides:
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.
The application was accompanied by the transcript
but it neither contained nor was it accompanied by
the declaration under oath prescribed by subsec
tion 70(2). The respondent decided:
... that this application for redetermination be and the same is
hereby refused for want of perfection because the applicant
failed to file the declaration in accordance with subsection (2)
of section 70 of the Immigration Act, 1976.
An application to the Federal Court of Appeal
pursuant to section 28 of the Federal Court Act 2
was withdrawn on consent, by leave and without
prejudice to any subsequent application with
respect to the same subject-matter. The respond
ent then heard a motion that it permit the appli
cant to perfect her application by filing the decla
ration. The respondent declined to do so on the
ground that the omission was not a mere
"procedural or administrative irregularity, but
rather a substantial defect that actually nullifies
the application".
1 S.C. 1976-77, c. 52.
2 R.S.C. 1970 (2nd Supp.), c. 10.
There are, then, two decisions under attack. The
first rejected the application because of the defi
ciency; the second refused to permit the deficiency
to be made good. The applicant seeks certiorari
quashing the first decision and mandamus direct
ing the respondent to permit the applicant to per
fect the application by filing the declaration or, in
the alternative, mandamus directing the respond
ent to hear the application on the basis that the
omission of the declaration does not render the
application a nullity, i.e. on the material that did
accompany it.
The respondent objects to this Court's jurisdic
tion to grant the relief sought by reason of subsec
tion 28(3) of the Federal Court Act on the basis
that the decisions attacked are decisions within the
purview of subsection 28(1). Considering section
28 in M.N.R. v. Coopers and Lybrand,' the
Supreme Court of Canada said:
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?
As to the decisions attacked here, the answer to
each of questions 2, 3 and 4 is indisputably affir
mative. As to question 1, the respondent argues
that any decision that finally disposes of the
3 [1979] 1 S.C.R. 495 at pp. 499 ff.
matter is a decision in the relevant sense. The
decisions here were plainly final in that sense.
The Federal Court of Appeal, in In re Anti-
dumping Act and in re Danmor Shoe Co. Ltd. 4
held:
A decision that may be set aside under section 28(1) must,
therefore, be a decision made in the exercise or purported
exercise of "jurisdiction or powers" conferred by an Act of
Parliament. A decision of something that the statute expressly
gives such a tribunal "jurisdiction or powers" to decide is
clearly such a "decision". A decision in the purported exercise
of the "jurisdiction or powers" expressly conferred by the
statute is equally clearly within the ambit of section 28(1).
In other words, a decision or order within the
purview of section 28 is a decision or order which
the tribunal has been expressly mandated to make
in the particular proceedings and not another deci
sion or order which, necessarily but coincidentally,
has the effect of terminating the proceedings. This
Court's jurisdiction under section 18 of the Feder
al Court Act extends to the decisions that were
made.
In Woldu v. Minister of Manpower and
Immigration, 5 the Federal Court of Appeal con
sidered the scheme of the legislation then in effect.
In a judgment concurred in by MacKay D.J., Le
Dain J. held, at pages 220-221:
By section 11 of the Immigration Appeal Board Act a notice
of appeal based on a claim to refugee status must contain or be
accompanied by a sworn declaration setting out the claim. By
section 19 of the Act an appellant must give notice of appeal in
such manner and within such time as is prescribed by the Rules
of the Board. Rule 4 of the Immigration Appeal Board Rules
provides that a notice of appeal must be served upon the
Special Inquiry Officer "within twenty-four hours of service of
the deportation order or within such longer period not exceed
ing five days as the Chairman in his discretion may allow".
Rule 17, under the heading "Hearings of Appeals", provides
that the Board may "allow amendments to be made to any
written submission". Section 11(3) of the Act provides that
upon receipt by the Board of a notice of appeal based on a
claim to refugee status, a quorum of the Board shall forthwith
consider the declaration. The conclusion to be drawn from
these provisions is that the Board does not have authority to
permit the completion or perfection of a notice of appeal
beyond a maximum period of six days from the service of the
deportation order, and that it has a statutory duty to consider
the sworn declaration without delay.
4 [1974] 1 F.C. 22 at p. 28.
5 [1978] 2 F.C. 216.
With proclamation of the Immigration Act, 1976,
and repeal of the legislation discussed in Woldu
there has been a significant change in the legisla
tive scheme.
Subsection 11(3) of the Immigration Appeal
Board Act 6 provided:
11....
(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. [Emphasis added.]
whereas subsection 71(1) of the present legislation
provides:
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.
[Emphasis added.]
Under the previous scheme the application was
required to be accompanied only by a declaration
under oath setting forth essentially the same ma
terial as prescribed by subsection 70(2) of the
present Act. It was not required to be accompanied
by the transcript. Under the previous scheme, the
respondent had to arrive at its determination of
whether the appeal should be allowed to proceed
on a consideration of the declaration only. Under
the present scheme the transcript is required and
the respondent is enjoined to consider the applica
tion, not the declaration.
Nothing in the new scheme leads me to a differ
ent conclusion than that reached by the Court of
Appeal in Woldu, namely that the respondent has
no authority to permit completion or perfection of
a notice of appeal beyond the period prescribed for
making it. The pertinent legislative provisions in
effect when these decisions were made: sections 70
6 R.S.C. 1970, c. I-3, as amended by S.C. 1973-74, c. 27, s. 5.
and 71 of the Act; section 40 of the Immigration
Regulations, 1978' and section 50 of the Immi
gration Appeal Board Rules, 1978, 8 express the
same intention in this regard as those referred to in
Woldu. In the scheme of the Act, the requirement
that the application be made within the prescribed
time is imperative.
In the same scheme, however, the requirement
that the application be accompanied by the decla
ration under oath is merely directory. There is no
valid reason whatever why an applicant ought not
be permitted to submit as much or as little of the
prescribed supporting material as he or she
chooses with the application provided it is submit
ted in time. Given the nature of the decision to be
made pursuant to subsection 71(1), any deficiency
in the material cannot possibly offend the legisla
tive scheme, whatever its effect on the applicant's
prospects of success.
Although made for the wrong reasons, the
second decision was the right decision and must
stand. The first decision will be set aside and the
respondent will consider the application as filed.
SOR/78-172.
8 SOR/78-311.
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.