A-634-81
Manuel Jesus Torres Quinones (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Thurlow C.J., Heald J. and
Primrose D.J.—Edmonton, October 25; Ottawa,
December 9, 1982
Immigration — Minister rejecting claim for Convention-
refugee status — Applicant applying to Immigration Appeal
Board for redetermination — Applicant's declaration referring
to Minister's decision — Department submitting internal
memo stating that special consideration deemed unwarranted
— Department submitting letter reciting Minister's reasons —
Board determining applicant not Convention refugee
Whether memo and letter capable of being prejudicial and
should not have been before Board — Respondent conceding
memo could be considered prejudicial and was submitted to
Board without applicant's consent Not improper for letter
to be submitted — Proceeding under s. 71(1) of Immigration
Act, 1976 not adversarial, so no right to respond to material
submitted — Letter not "evidence prejudicial to the applicant"
as per Saraos — Department having altered practice, in
response to Federal Court decisions, by supplying reasons to
applicant and to Board — "Redetermination" means reviewing
Minister's decision and deciding on correctness — Necessary
to have Minister's reasons to redetermine — Judicial or
quasi-judicial tribunal has implicit right, unless expressly
excluded, to consider reasons if empowered by statute to
review actions of another — No exclusion in Immigration Act,
1976 — Requirement of enlarged record does not change
nature of Board's function so as to render reasons inadmissible
— Minister's decision and reasons not "evidence" as per
Saraos — Applicant's declaration a response to Minister's
reasons — Board's decision set aside, matter referred back for
reconsideration — Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, s. 28 — Immigration Act, 1976, S.C. 1976-77, c.
52, ss. 2(1), 45, 70, 71.
The applicant claimed to be a Convention refugee, but
pursuant to section 45 of the Immigration Act, 1976 ("the
Act"), the Minister rejected this claim. The applicant then
applied to the Immigration Appeal Board, under section 70, for
a redetermination. As required by subsection 70(2), his applica
tion to the Board was accompanied by a sworn declaration. In
paragraph 4 of the latter, a reference was made to the Minis
ter's decision. The Immigration Department itself placed two
documents before the Board. The first was an intra-departmen
tal memo which stated that the applicant's case had been
reviewed and that special consideration had been deemed
unwarranted. The second was a copy of a letter advising the
applicant of the Minister's determination and setting forth the
Minister's reasons. Pursuant to section 71 of the Act, the Board
refused to allow the applicant's claim for Convention-refugee
status to proceed, and determined that he was not a Convention
refugee. The applicant applied under section 28 of the Federal
Court Act to review and set aside the Board's decision, on the
ground that the two documents were capable of being prejudi
cial to his case and therefore should not have been before the
Board.
Held, per Heald J. (Primrose D.J. concurring): The Board's
decision should be set aside and the matter referred back for
reconsideration and redetermination, on the basis that the
letter, but not the memo, may properly be placed before the
Board. The respondent has conceded that the memo could be
considered prejudicial, and that it was submitted to the Board
without the applicant's consent. In light of the judgment in
Saraos, it follows that the presentation of the memo to the
Board vitiated the subsequent decision. The objections with
respect to the letter could not, however, be upheld. A proceed
ing before the Board under subsection 7(1) is not of an
adversarial nature; therefore, documents submitted at that
stage cannot be looked upon as material submitted by an
adverse party, and no right to respond to such material is
evoked. Secondly, the letter was not "evidence prejudicial to the
applicant" in the sense in which that term was employed in
Saraos. While subsection 45(5) requires only that the Minister
inform the applicant (inter alla) of his determination, the
judgment of the Trial Division in Brempong has prompted the
Department to alter its practice, so that it now advises an
applicant of the reasons for a section 45 determination. In that
same matter, the Court of Appeal stated that the Minister's
reasons should have been before the Court where the applicant
is seeking to review and set aside the Minister's decision; and
probably in response to that statement, it has become standard
for the Department, when a redetermination has been applied
for, to forward to the Board copies of the letter advising the
applicant of the Minister's reasons. An examination of the Act
indicates that the Court of Appeal's reasoning in Brempong
applies equally with respect to the placing of reasons before the
Board in a redetermination under sections 70 and 71. The
Board's obligation to redetermine is an obligation to review the
Minister's determination and decide upon its correctness. In the
discharge of this obligation, the Minister's reasons are a neces
sary part of the record. When a judicial or quasi-judicial
tribunal is empowered by statute to review and judge the
actions of any other tribunal, there is an implicit right in the
reviewing authority to consider any reasons given for the
actions under review. This right exists unless it is expressly
excluded by the governing statute, and no such express provi
sion is to be found in the Act. The fact that the Act calls for an
enlarged record does not alter the nature of the function
performed by the Board so as to render inadmissible the
reasons of the tribunal being reviewed. The Minister's decision
and reasons are not the kind of "evidence" the exclusion of
which is addressed in Saraos, and the reference in paragraph 4
of the applicant's declaration may be regarded as a response to
the Minister's reasons.
Per Thurlow C.J. dissenting in part: The letter was capable
of being prejudicial in that the Minister's opinion as to the
vagueness and credibility of the applicant's evidence could have
influenced the Board, and in that the applicant might have
considered including additional material in his declaration if he
had known that the letter was going to be submitted. The
procedure on a section 70 application is of a special kind: it
does not give the applicant any opportunity to appear before
the Board; nor is there statutory authorization for the Depart
ment's submitting anything to the Board in support of the
Minister's decision, or for the Board's requesting or receiving
information beyond what the applicant has supplied. The appli
cant would, however, be unable to object if he were to comply
with a request from the Board for further information. The Act
contemplates that the Board's decision will be made solely on
the basis of the material supplied by the applicant. The pro
ceeding is not comparable to an application in the Court of
Appeal for judicial review, and consequently, that Court's
decision in Brempong has no application here. The Saraos case,
on the other hand, sets forth certain principles regarding the
consideration, by the Board, of evidence not mentioned in
subsection 70(2). The earlier case of Diaz is reconcilable with
those principles, but is distinguishable from the instant case
with respect to the facts. The reference in the applicant's
declaration to the decision of the Minister cannot be regarded
as a consent either to the Board's considering the reasons of the
Minister, or to the Department's submitting the letter to the
Board. Accordingly the letter, like the memo, should not have
been before the Board.
CASES JUDICIALLY CONSIDERED
APPLIED:
Brempong v. Minister of Employment and Immigration,
[1981j I F.C. 211 (C.A.); Diaz v. Minister of Employ
ment and Immigration, [1981 ] 2 F.C. 188 (C.A.).
DISTINGUISHED:
Saraos v. Minister of Employment and Immigration
Canada et al., [1982] I F.C. 304 (C.A.).
CONSIDERED:
Brempong v. Refugee Status Advisory Committee, et al.,
[1980] 2 F.C. 316; 109 D.L.R. (3d) 664 (T.D.).
COUNSEL:
G. B. Gawne for applicant.
B. J. Saunders for respondent.
SOLICITORS:
Chapman, Finlay, MacPherson & Gawne,
Edmonton, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
THURLOW C.J. (dissenting in part): This is an
application to review and set aside a decision of
the Immigration Appeal Board refusing, under
subsection 71(1)' of the Immigration Act, 1976,
S.C. 1976-77, c. 52, to allow the applicant's
application for redetermination of his claim for
Convention-refugee status to proceed, and deter
mining that he is not a Convention refugee.
The only points relied on in support of the
application were that there were before the Board
two documents which were not part of the appli
cant's application to the Board and which were
capable of being prejudicial to the applicant's case.
The documents were:
1. a memorandum from the Chief of Operation
al Procedures for Applicants in Canada, an
official of the Department of Employment and
Immigration, to the chief of the Edmonton
office of the Department, saying of the
applicant,
The Special Review Committee has reviewed this case and
has decided that special consideration is not warranted.
and
2. a copy of the Refugee Status Advisory Com
mittee's letter advising the applicant of the Min
ister's determination, under subsection 45(5),
that the applicant was not a "Convention
refugee" as defined in subsection 2(1) of the
Act. The letter included the following:
The reasons for the Minister's decision are as follows:
Your activities in support of the Unidad Popular appear to
have been more social than political. You provide a very
vague description of seven detentions, but I note that you
' 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.
were detained for only a few hours on each occasion and
were never held in prison.
Your description of problems with members of DINA who
were posing as sanitation and tax inspectors lacks credibility
in that it does not appear likely that members of that
organization would resort to that kind of subterfuge.
It was conceded at the argument that both
documents were in fact put before the Board by
the Department and not by the applicant. It was
conceded, as well, that the first document was
prejudicial, and that on that account the Board's
decision should be set aside and the matter
referred back to the Board for reconsideration and
redetermination.
Notwithstanding the submission of counsel for
the respondent, in my opinion, the second docu
ment is also capable of being prejudicial in at least
two ways. The opinion expressed on behalf of the
Minister both as to the vagueness of the evidence
and its credibility could, as it seems to me, have its
influence—subtle or otherwise—on the approach
of the Board to its consideration of the evidence
submitted by the applicant. Further, had the appli
cant known that the document would be put before
the Board by the Department he might well have
considered including additional material to meet it
in his declaration.
Counsel for the Department also submitted that
the document was nevertheless properly before the
Board.
The question of what material may properly be
considered by the Board when dealing with the
first stage of an application for redetermination
under section 70 2 of the Act was recently con
sidered by this Court in Saraos v. Minister of
2 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;
(Continued on next page)
Employment and Immigration Canada et al. 3
In that case, Pratte J., after discussing the purely
administrative character of the proceedings lead
ing to the Minister's decision, went on to say 4 with
respect to the function of the Immigration Appeal
Board at that stage:
However, the special character of the decision that must be
made at the first step pursuant to subsection 71(1) must be
stressed. That decision is made without a hearing at a time
when the applicant has not yet an adversary who opposes his
claim and when, in the normal course, there is nothing before
the Board except the application for redetermination and the
other documents filed by the applicant pursuant to subsection
70(2). The function of the Board at that stage is not to assess
and weigh contradictory evidence adduced by parties having
divergent interests; it is merely to consider the documentary
evidence filed by the applicant in support of his claim pursuant
to subsection 70(2) and form an opinion on the chances of
success of the application.
The procedure for reaching the decision is also
unusual. The application is to be in writing. It is of
an ex parte nature. There is no provision for an
oral hearing. The applicant thus has no opportu
nity to appear before the tribunal that is to decide
whether his claim will be permitted to proceed. On
the other hand, no opportunity is given to the
Department to put anything before the tribunal in
support of the Minister's decision, either orally or
in writing. Moreover, the Board itself is not
authorized by the statute to ask for or receive
information or representations in addition to what
the applicant puts before it with his application,
though if the Board were to ask the applicant for
further information and he responded by supplying
it he would no longer be in a position to object to
its reception and consideration.
In the Saraos case, Pratte J. continued: 5
(Continued from previous page)
(b) a statement in reasonable detail of the facts on which the
application is based;
(e) 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.
3 [1982] I F.C. 304 (C.A.).
4 Id., at p. 308.
5 Id., at p. 309.
I now come back to the problem to be resolved: must a
decision of the Board dismissing a claim summarily pursuant to
subsection 71(1) be set aside if it was not made solely on the
basis of the documents mentioned in subsection 70(2)? This
question does not admit of a simple answer. Distinctions must
be made:
I. The fact that the Board has considered evidence other
than the documents mentioned in subsection 70(2) certainly
does not affect the validity of the Board's decision if the
evidence in question is in no way prejudicial to the applicant.
To set aside a decision of the Board on such a ground would
be a futile exercise.
2. The validity of the Board's decision is not affected either,
in my view, even if the evidence is prejudicial to the appli
cant, when the applicant himself has either asked or agreed
that the Boad take that evidence into consideration. (Wheth-
er or not an applicant has in fact asked or agreed that the
Board take the evidence into consideration is a question of
fact to be determined by the Court in each case.) In those
circumstances, an applicant cannot complain that the Board
acted on his request or consent.
3. The Board's decision should be set aside, however, if the
evidence is prejudicial to the applicant and was considered by
the Board without his consent.
In the present case, I have no doubt that the irregularity
committed by the Board does not vitiate its decision. The
applicant blames the Board for having taken into consideration
the evidence given by his brother-in-law before the senior
immigration officer on the occasion of the applicant's examina
tion under oath. However, if that witness was examined at that
time, it was by the applicant's counsel and at his express
request. Moreover, it is the applicant who, with the assistance
of counsel, filed with the Board, without any reserve or objec
tion, the evidence that he now says should not have been
considered. This is clearly a case, in my view, where the
applicant has consented or must be deemed to have consented
to the introduction into the record of the evidence in question.
In Diaz v. Minister of Employment and
Immigration, 6 a case decided some months before
the Saraos decision, the Court had declined to set
aside the Board's decision where it appeared that
the letter advising the applicant of the Minister's
decision had been before the Board. The applicant,
in one paragraph of his declaration, had quoted a
paragraph from the reasons stated in the letter. In
another paragraph of his declaration, the applicant
had expressed a belief that the Minister had misin
terpreted his fear to be fear of military service.
The Court appears to have considered that these
references by the applicant to the Minister's rea
sons fell within the meaning of "such other
representations as the applicant deems relevant to
6
[19811 2 F.C. 188 (C.A.).
the application", in paragraph 70(2)(d), and were
sufficient to justify the Board in examining the
letter itself so as to be informed of all that was in
it.
The exposition of the statute in the Saraos case
can, as it seems to me, be reconciled with the
conclusion reached by the Court in the Duran case
on two possible bases. The first is that the Court
concluded on the facts that the applicant had
asked or agreed that the Court take the Minister's
letter into consideration. The second is that the
letter was not prejudicial because the whole of
what might have been prejudicial in it was dis
closed in the applicant's declaration.
The Minister's decision itself was the subject of
an application for review in Brempong v. Minister
of Employment and Immigration.' The Court
held that, as what was under attack was a purely
administrative decision not required by law to be
made on a judicial or quasi-judicial basis, the
Court did not have jurisdiction to entertain the
application. In the course of his reasons, Urie J.
observed [at pages 213-214]:
As as result of an application filed on behalf of the applicant
herein, the Trial Division granted an order that the Minister of
Employment and Immigration send or deliver to the applicant
or his counsel, in writing, the reasons for his determination that
the applicant is not a Convention refugee. With respect, I have
grave doubts as to the propriety of requiring the Minister to
give such reasons. However, that question is not one upon
which we are called to make a decision in this application. The
order also provided that until the applicant 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 prohib
ited from considering the application 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 decision 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.
It is clear that in this Court a decision that is to
be reviewed must be before the Court but, in my
opinion, that situation is not comparable to the
situation where an application for redetermination
is made to the Immigration Appeal Board under
7 [ 1981 ] 1 F.C. 211 (C.A.).
subsection 70(1) of the Immigration Act, 1976.
That, as has already been pointed out, is a special
kind of procedure which, as I see it, contemplates
that the material on which the application is to be
determined is to be only that put before the Board
by the applicant. The Brempong case accordingly,
in my view, does not bear on the question involved
in the present case.
I come now to the applicant's declaration in the
present case. It consists of the following six
paragraphs:
I. That I am the Applicant in the Application for a Redetermi-
nation of a claim to be a Convention Refugee, a copy of which
application is attached hereto and marked as Exhibit "A" to
this my Statutory Declaration.
2. That attached hereto and marked as Exhibit "B" to my
Statutory Declaration is a copy of the transcript of my exami
nation under oath conducted before T. Van Den Bussche,
Senior Immigration Officer, on the 21st day of March, A.D.
1980.
3. That attached hereto and marked as Exhibit "C" to this my
Statutory Declaration is the original handwritten copy of the
document referred to commencing at the final question on page
12 of the transcript, aforesaid, and thereafter, and that
attached hereto and marked as Exhibit "D" to this my Statu
tory Declaration is a typewritten copy of the said document.
4. That I make this application on the basis that I feel that the
Minister of Employment and Immigration erred in determining
that I am not a Convention Refugee, as I fear persecution
should I return to Chile, because of my associations with the
Unidad Popular and members thereof.
5. That the facts on which I base my application are set forth in
my statement under oath contained in Exhibit "B" to this my
Statutory Declaration.
6. That at the hearing before the Immigration Appeal Board I
intend to offer as evidence greater detail of the occurrence
referred to in my statement under oath, including detail as to
my physical and sexual abuse by the military and secret police,
together with medical evidence in support thereof.
It will be observed that the only reference to the
Minister's decision is in paragraph 4. As I read it,
that paragraph is no more than a reiteration of the
basis of the applicant's claim. No part of the
Minister's reasons is quoted nor are the reasons
produced as an exhibit. Nor does the paragraph
purport to refer to the Minister's reasons for refus
ing the claim. I do not think such a paragraph can
be regarded as a request or agreement that the
reasons be considered by the Board, or even as a
permission to the Board to examine the Minister's
reasons. Still less is it a licence to the Department
to put the Minister's letter before the Board.
Accordingly, even on the basis of the reasoning in
the Diaz case, 1 am of the opinion that the Minis
ter's letter should not have been before the Board.
I would set aside the Board's decision and refer
the matter back to the Board for reconsideration
and redetermination of the applicant's claim, on
the basis that neither the memorandum nor the
letter described in these reasons should form part
of the material that may properly be considered by
the Board.
* * *
The following are the reasons for judgment
rendered in English by
HEALD J.: This is a section 28 application to
review and set aside a decision of the Immigration
Appeal Board wherein the Board refused to allow
the applicant's application for a redetermination of
his claim for Convention-refugee status to proceed,
and determined that the applicant is not a Conven
tion refugee.
In the Case upon which the section 28 applica
tion was argued, there appear two documents
which are important to the final determination of
the issues herein. The first document (Case, p. 35)
is a memorandum dated March 17, 1981, and was
signed by one B. Maitland, described as "Chief
Applicants in Canada Division, Operational Proce
dures, Foreign Branch of Employment and Immi
gration Canada", and was sent to the Manager,
Canada Immigration Centre, Edmonton, Alberta.
The memorandum reads as follows:
Manuel Jesus Torres-Quinones—d.o.b. 11/2/41—Chile
The Special Review Committee has reviewed this case and has
decided that special consideration is not warranted.
The second document (Case, p. 36), also dated
March 17, 1981 is a letter addressed to the appli
cant from the Registrar, Refugee Status Advisory
Committee. That letter reads as follows:
Mr. Manuel Jesus Torres Quinones
Dear Mr. Torres:
I refer to your claim to Convention refugee status made
pursuant to subsection 45(I) of the Immigration Act, 1976.
This is to inform you, pursuant to subsection 45(5) of the
Act, that the Minister of Employment and Immigration has
determined that you are not a Convention refugee as defined in
subsection 2(1) of the Act.
The reasons for the Minister's decision are as follows:
Your activities in support of the Unidad Popular appear to have
been more social than political. You provide a very vague
description of seven detentions, but I note that you were
detained for only a few hours on each occasion and were never
held in prison.
Your description of problems with members of DINA who
were posing as sanitation and tax inspectors lacks credibility in
that it does not appear likely that members of that organization
would resort to that kind of subterfuge.
I would like to draw to your attention that the Minister will
not discuss any specifics of your claim. Pursuant to subsection
70(1) of the Act, you may, within fifteen (15) days following
receipt of this notice, apply in writing to the Immigration
Appeal Board for a redetermination of your claim to refugee
status. If you wish to make such an application, you should
immediately contact the senior immigration officer at the
Canada Immigration Centre where you made your claim to
refugee slates. The officer will be pleased to inform you of the
procedures to be followed and will give you the required
application forms.
At the hearing before us, respondent's counsel
conceded that the memorandum dated March 17,
1981, from B. Maitland to the Manager, Canada
Immigration Centre, Edmonton, should not have
been before the Board because it could be con
sidered to be prejudicial to the applicant and was
considered by the Board without his consent.
Therefore, it fell within the third category dis
cussed by Pratte J. in the Saraos case,' and as
such vitiated the Board's order. However, counsel
for the parties did not agree with respect to the
second document referred to supra, namely the
letter of March 17, 1981, to the applicant from the
Registrar of the Refugee Status Advisory Com
mittee. Respondent's counsel took the view, both in
his memorandum and in oral argument, that sub
ject letter from the Registrar was not prejudicial
8 Saraos v. Minister of Employment and Immigration
Canada et al., [ 19821 I F.C. 304 (C.A.), at p. 309.
to the applicant and therefore did not fall within
the third category in Saraos (supra).
On the other hand, counsel for the applicant
submitted that consideration of subject letter by
the Board was not authorized by the Immigration
Act, 1976. It was his further submission that, since
that letter made adverse findings of credibility
with respect to the applicant, the letter was clearly
prejudicial. Counsel added that the applicant did
not know that the letter was before the Board until
several months after the Board's decision was
given. Thus, in his view, the applicant was denied
the fundamental right to respond to all "material
submitted by an adverse party". Initially, I would
observe that the letter in question is not, in my
view, "material submitted by an adverse party". In
the Saraos case (supra), Pratte J., while discuss
ing the nature of the subsection 71(1) [Immigra-
tion Act, 1976] proceedings, said at page 308:
However, the special character of the decision that must be
made at the first step pursuant to subsection 71(1) must be
stressed. That decision is made without a hearing at a time
when the applicant has not yet an adversary who opposes his
claim and when, in the normal course, there is nothing before
the Board except the application for redetermination and the
other documents filed by the applicant pursuant to subsection
70(2). The function of the Board at that stage is not to assess
and weigh contradictory evidence adduced by parties having
divergent interests; it is merely to consider the documentary
evidence filed by the applicant in support of his claim pursuant
to subsection 70(2) and form an opinion on the chances of
success of the application.
I agree with that view of the matter. Accordingly,
since at the subsection 71(1) stage the proceeding
is not an adversarial one, it follows that material
submitted cannot be submitted by a party adverse
in interest since there are no adverse parties at that
stage.
In considering the issue as to whether or not the
letter from the Refugee Status Advisory Commit
tee can be considered as "evidence prejudicial to
the applicant", as that expression is used in
Saraos, it is instructive, in my view, to consider the
history of the procedure developed in the Immigra
tion Department to comply with the provisions of
subsection 45(5) of the Act, in the light of the
jurisprudence of both divisions of this Court. That
subsection reads as follows:
45. ...
(5) When the Minister makes a determination with respect
to a person's claim that he is a Convention refugee, the
Minister shall thereupon in writing inform the senior immigra
tion officer who conducted the examination under oath respect
ing the claim and the person who claimed to be a Convention
refugee of his determination.
It is to be noted that the subsection itself simply
requires the Minister to notify the senior immigra
tion officer who conducted the examination under
oath and the applicant, in writing, of his determi
nation of the applicant's application for Conven-
tion-refugee status. However, the Trial Division of
this Court, in the case of Brempong v. Refugee
Status Advisory Committee, et al., 9 granted an
order requiring the Minister to send or deliver to
the applicant, in writing, the reasons for his deter
mination that the applicant was not a Convention
refugee. A perusal of the reasons in that case
reveals that counsel for the Minister, in those
proceedings, argued that nothing in the scheme of
the statute required the Minister to provide rea
sons to the applicant for his determination, since
subsection 45(5) requires only that the applicant
and the applicable senior immigration officer be
informed of that determination. Notwithstanding
those submissions, the learned Trial Judge con
cluded that the refusal to give the applicant the
Minister's reasons for his decision that the appli
cant was not a Convention refugee amounted to
unfair treatment which might prejudice a full and
fair redetermination hearing, and on this basis he
issued the order referred to supra. That decision of
the Trial Division was not appealed to this Court
(although a notice of appeal had been filed and
withdrawn for some unspecified reason). However,
the applicant did file a section 28 application in
this Court to review and set aside the Minister's
9 [l980] 2 F.C. 316; 109 D.L.R. (3d) 664 (T.D.).
determination. 10 The Court held that since the
decision impeached was a purely administrative
one not required by law to be made on a judicial or
quasi-judicial basis, it was without jurisdiction to
consider the application. Urie J., in delivering the
reasons of the Court, stated at pages 213 and 214:
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 Immigration send or deliver to the applicant
or his counsel, in writing, the reasons for his determination that
the applicant is not a Convention refugee. With respect, I have
grave doubts as to the propriety of requiring the Minister to.
give such reasons. However, that question is not one upon
which we are called to make a decision in this application. The
order also provided that until the applicant 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 prohib
ited from considering the application 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 decision 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.
Accordingly, it is clear to me that, prior to the
Trial Division judgment in Brempong (supra), the
Minister's practice was to not provide to the appli
cant any reasons for his section 45 determination,
but that thereafter and pursuant to that judgment,
the practice has been changed so that, in all
subsequent cases that I have seen, the Minister's
reasons for the section 45 determination are trans
mitted to the applicant. It also seems clear that the
policy was further altered, so that in cases where
the applicant has applied to the Immigration
Appeal Board for a redetermination of his refugee
claim, copies of the Minister's letter to the appli
cant notifying him of his decision and containing
the reasons therefor are also, invariably, sent to
the Board. It seems likely, in my view, that this
change of procedure was prompted by the views of
10 Brempong v. Minister of Employment and Immigration,
[198111 F.C. 211 (C.A.)
this Court, as expressed in Brempong (supra), that
the Minister's reasons should have been part of the
record on the section 28 application which sought
to review and set aside the Minister's decision,
because what was said by the Minister formed the
basis of the attack on his determination of the
issue before him. Is the situation any different
where, as in the case at bar, the issue is not the
propriety of the inclusion in the record before this
Court of the Minister's reasons, but the propriety
of their inclusion in the record before the Immi
gration Appeal Board in a redetermination by it
pursuant to sections 70 and 71? In my view, the
rationale adopted by this Court in Brempong
(supra) applies equally to the situation in the case
at bar, where the contents of the record before the
Board are in issue. I say this after a consideration
of the statutory scheme. Pursuant to section 45,
the applicant initially makes his refugee claim to
the Minister. Upon receipt of the claim, the appli
cant is examined under oath by a senior immigra
tion officer respecting his claim. The transcript of
that examination, together with the claim, are then
forwarded to the Minister. A copy of the transcript
and the claim is forwarded to the Refugee Status
Advisory Committee for their consideration. After
having obtained the Committee's advice, the Min
ister is required to determine whether or not the
applicant is a Convention refugee. Sections 70 and
71 of the Act provide a procedure whereby the
applicant may apply to the Immigration Appeal
Board for a redetermination of his claim in cases
where the Minister has dismissed that claim.
In my view, that redetermination is, in essence,
a review of the Minister's decision. Neither the
statute nor the regulations provide a definition of
"redetermination" as used in this statutory
scheme. However, The Living Webster Encyclope
dic Dictionary of the English Language gives the
following definition of "redetermine": "... To
come again to a decision; to ascertain after
reinvestigation." I think the Board is required to
review the Minister's decision and to come to its
own opinion as to the correctness of that decision.
Subsection 70(2) stipulates only the material
which the applicant shall place before the Board
for its consideration—namely, the application, the
transcript of the applicant's examination under
oath and the applicant's statutory declaration in
support of his claim. I can find nothing in the
statutory language which specifically prohibits the
presence on the record before the Board of the
Minister's reasons. Indeed, it seems to me that,
since the Board's function under sections 70 and
71 is to review the Minister's decision, the reasons
for that decision are a necessary part of the record
before the Board. It is entirely possible, for exam
ple, that the reasons given by the Minister will
form at least a part of the attack on the decision
given by him." Accordingly, in my view, the rea
soning set out by Urie J. in Brempong (supra) has
equal application to this factual situation.
I referred earlier to the Saraos case, where
Pratte J. held that a decision of the Immigration
Appeal Board should be set aside where evidence
prejudicial to an applicant was considered by the
Board without his consent. In that case, the facts
were quite different from those at bar. In that
case, during the course of the examination under
oath, the applicant's brother-in-law was allowed to
testify and his evidence became part of the ma
terial before the Board. In my view, the Saraos
decision must be evaluated in the light of that
factual situation. Sworn testimony by someone
other than the applicant is clearly evidence, and
evidence not contemplated under sections 70
and 71. However, the decision of the Minister and
his reasons therefor are, in my view, of quite a
" The only previous case of which I am aware where the
propriety of including in the record before the Immigration
Appeal Board the Minister's reasons for his determination was
challenged, is the case of Diaz v. Minister of Employment and
Immigration, [1981] 2 F.C. 188 (C.A.). In Diaz at least two
paragraphs of the applicant's declaration were, in the Court's
view, rebuttals of the Minister's reasons. Similarly, in the case
at bar, I think that paragraph 4 of the applicant's declaration
refers directly to the first reason given by the Minister in his
letter to the applicant, and can be said to be a response to or
rebuttal of that reason.
different character, and are easily distinguished
from the "evidence" referred to in the Saraos case.
When a quasi-judicial or a judicial tribunal is
empowered by statute to review and sit in judg
ment on the actions of another tribunal, be it
administrative or otherwise, it seems to me that
there is an implicit right in the reviewing authority
to peruse and consider any reasons for decision
given by the tribunal being reviewed, in the
absence of an express statutory provision to the
contrary. As stated supra, there is no such express
statutory prohibition in the Immigration Act, 1976
or in the regulations promulgated thereunder. Nor
do I think that because the Board is required to
review the Minister's decision but on an enlarged
record, 12 that such a circumstance changes the
nature of the function being performed by the
Board so as to render inadmissible before it the
reasons of the tribunal being reviewed.
For these reasons, I have concluded that there
was nothing improper in the inclusion of the Min
ister's letter as part of the material before the
Immigration Appeal Board. I would therefore
allow the section 28 application, set aside the
Board's decision and refer the matter back to the
Board for reconsideration on the basis that the
memorandum of March 17, 1981, from B. Mait-
land to the Manager, Canada Immigration Centre,
Edmonton, should not form a part of the material
to be considered by the Board on its reconsidera
tion of the application for redetermination.
PRIMROSE D.J.: I concur.
12 1 refer to the applicant's statutory declaration which is
required pursuant to subsection 70(2) of the Act.
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.