T-50-89
Bing Hui Wu, Jim Ween Lu, Kee Few Ng, Chi
Kin Cham, Wen Pon San, Won Tim Chang, Sam
Choi Chaq, Man Wai Leung, Suk Ling Chen and
Jane Jin He (Applicants)
v.
Minister of Immigration (Respondent)
INDEXED AS: WU V. CANADA (MINISTER OF IMMIGRATION)
Trial Division, Reed J.—Conference call, January
20; Ottawa, January 24, 1989.
Immigration — Practice — Applicants arriving in Canada
January I, 1989 — Claiming to be Convention refugees from
China — Questioned at port of entry — Notes of interview
made — Screening hearing by two-person panel scheduled
Whether disclosure of interview notes necessary for fair hear
ing — Applicants under stress when interviewed — Did not
have counsel — Scope for misinterpretation communication by
interpreter — Counsel seeking to avoid surprise at hearing —
Minister arguing no rule of fairness requiring one side to
reveal evidence prior to hearing, summary procedure envisaged
by Immigration Act amendments undercut if applicants' sub
mission accepted — Applicants given document containing
"highlights" of interview — Whether applicants have fairly
arguable case test at leave to commence proceedings — No law
directly on point — Procedure for fair hearing depending on
circumstances including consequences of hearing — Not
administratively difficult to provide photocopy of interview
notes — Serious question to be determined — Leave to insti
tute s. 18 application granted.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18, 28.
Federal Court Immigration Rules, SOR/89-26.
Immigration Act, R.S.C., 1985, c. 1-2, ss. 2(1) (as am. by
S.C. 1988, c. 35, s. 1), 12, 48(2) (as am. idem, s. 14),
48.02 (as am. idem), 83.1 (as am. idem, s. 19).
Immigration Act, 1976, S.C. 1976-77, c. 52, s.
104(6),(7).
Privacy Act, R.S.C., 1985, c. P-21.
CASES JUDICIALLY CONSIDERED
DISTINGUISHED:
Piperno v. Minister of Employment and Immigration
(1985), 64 N.R. 313 (F.C.A.).
CONSIDERED:
Bauer v. Regina (Canadian) Immigration Commission,
[1984] 2 F.C. 455 (T.D.).
REFERRED TO:
Bhattia v. Canada (Minister of Employment and Immi
gration), 89-A-1000, Pratte and Marceau JJ.A., 13/I/89,
not yet reported; Nicholson v. Haldimand-Norfolk
Regional Board of Commissioners of Police, [1979] 1
S.C.R. 311; McCarthy v. Bd. of Trustees of Calgary
Roman Catholic Separate S. Dist. No. 1, [1979] 4
W.W.R. 725 (Alta. T.D.); Campeau Corpn. v. Calgary
City Council (1980), 12 Alta. L.R. (2d) 379 (C.A.);
Martineau v. Matsqui Institution Disciplinary Board,
[1980] 1 S.C.R. 602; Harvie v. Calgary Regional Plan
ning Commn. (1978), 8 Alta. L.R. (2d) 166 (C.A.);
Singh et al v. Minister of Employment and Immigration,
[1985] 1 S.C.R. 177; (1985), 58 N.R. 1; Muliadi v.
Canada (Minister of Employment and Immigration),
[1986] 2 F.C. 205 (C.A.).
AUTHORS CITED
Evans, J.M., et al., Administrative Law Cases, Text, and
Materials Toronto: Emond-Montgomery Limited,
1980.
Jones, David Phillip and Anne S. de Villars, Principles of
Administrative Law Toronto: Carswell Company Lim
ited, 1985.
Halsbury's Laws of England, vol. 1, 4th ed., London:
Butterworths, 1979.
Sgayias, David et al., Federal Court Practice-1988
Toronto: Carswell Company Limited, 1987.
COUNSEL:
William J. Major, Q.C. for applicants.
D. Bruce Logan for respondent.
SOLICITORS:
Major, Caron & Company, Calgary, for
applicants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for order ren
dered in English by
REED J.: This is an application, pursuant to
section 83.1 of the Immigration Act, R.S.C., 1985,
c. I-2 as amended by S.C. 1988, c. 35 [s. 19].
Section 83.1 was added to the Immigration Act,
1976 [S.C. 1976-77, c. 52] to provide a new
procedure for applications with respect to immi
gration matters initiated pursuant to sections 18
and 28 of the Federal Court Act [R.S.C., 1985, c.
F-7]. This was triggered, in part at least, by the
great volume of appeals respecting claims for Con
vention refugee status which were being put before
the Court.
The new procedure contemplates a two-step pro
cess. Applications initiated with respect to immi
gration matters, pursuant to sections 18 and 28 of
the Federal Court Act, may now be commenced
only with leave of the Court. A discussion of the
two-step process required is found in the recent
decision of Mr. Justice Marceau in Bhattia v.
Canada (Minister of Employment and Immigra
tion) (Court file 89-A-1000, Pratte and Marceau
JJ.A., judgment dated January 13, 1989, F.C.A.,
not yet reported).
In addition to the two-step procedure required
to pursue proceedings before this Court, the new
legislation also contemplates a two-step procedure
for determining the validity of claims for refugee
status which determinations are made by the
Immigration and Refugee Board (hereinafter
called "the Board"). A person claiming refugee
status must now appear, first, before a panel of
two persons for what I will call a screening hear
ing. The two panel members are an adjudicator
and a member of the Convention Refugee Deter
mination Division of the Board (hereinafter
"Refugee Division"). At that screening hearing
the claimant has the burden of proving that he or
she is eligible to have the claim for refugee status
determined and that there is a credible basis for
the claim being made (see subsection 48(2) of the
Immigration Act as amended by S.C. 1988, c. 35
[s. 14]). If either of the two panel members deter
mines that the person is both eligible and has
demonstrated a credible basis for the claim being
made, the claim for refugee status will then be
heard by the Refugee Division of the Board (see
section 48.02 of the Immigration Act as amended
by S.C. 1988, c. 35 [s. 14]).
The new procedures, both that requiring leave of
this Court before proceedings may be commenced
before it and that requiring that a two-person
panel screen claims for refugee status before they
will be heard by the Refugee Division, were in
force on January 1, 1989.
On January 1, 1989 the present applicants
arrived in Canada. They claim they are Conven
tion refugees' from the People's Republic of
China. On January 2, 1989 the applicants were
questioned at the port of entry as required by
section 12 of the Immigration Act. 2 Notes were
taken of that interview. The applicants were given
a summary of those notes.
' Subsection 2(1) of the Immigration Act as amended by
S.C. 1988, c. 35 [s. 1] defines "Convention refugee" as:
(a) by reason of a well-founded fear of persecution for
reasons of race, religion, nationality, membership in a par
ticular social group or political opinion,
(i) is outside the country of his nationality and is unable
or, by reason of that fear, is unwilling to avail himself of
the protection of that country, or
(ii) not having a country of nationality, is outside the
country of his former habitual residence and is unable or,
by reason of that fear, is unwilling to return to that
country, ....
2 R.S.C., 1985, c. 1-2.
12. (1) Every person seeking to come into Canada shall
appear before an immigration officer at a port of entry, or at
such other place as may be designated by a senior immigration
officer, for examination to determine whether that person is a
person who shall be allowed to come into Canada or may be
granted admission.
(2) For the purposes of this section, a person who leaves
Canada and thereafter seeks to return to Canada, whether or
not that person was granted lawful permission to be in any
other country, shall be deemed to be seeking to come into
Canada.
(3) Where an immigration officer commences an examina
tion referred to in subsection (1), the officer may, in such
circumstances as the officer deems proper,
(a) adjourn the examination and refer the person being
examined to another immigration officer for completion of
the examination; and
(b) detain or make an order to detain the person.
(4) Every person shall answer truthfully all questions put to
that person by an immigration officer at an examination and
shall produce such documentation as may be required by the
immigration officer for the purpose of establishing whether
the person shall be allowed to come into Canada or may be
granted admission.
The screening hearing contemplated by section
48 of the Act has been scheduled for January 26,
1989. Counsel for the applicants in preparing for
that hearing sought from immigration officials a
copy of the interview notes taken on January 2,
1989. It is his position that disclosure of those
notes, prior to the section 48 hearing, is essential
to ensure the applicants a fair hearing. It is argued
that such disclosure is necessary to enable the
applicants to know the case which is going to be
made against them at the screening hearing.
One of the applicants, Chi Kin Cham, signed an
affidavit in support of the present application stat
ing, in part, as follows:
3. ... the day after my arrival I was questioned by Canadian
Immigration Officials as to my reasons for coming to Canada.
This questioning was done without any legal counsel being
present.
4. The Canadian Immigration Officials indicated that if I did
not answer their questions truthfully that I would be returned
to the People's Republic of China.
5. ... I do not know what statements were taken down nor do
I recall the specific nature of the questions asked.
7. That 1 do verily believe that these statements will be used
against me in my refugee hearing. 1 further believe that in
order to be able to respond to such matters raised in the
statements I should be afforded an opportunity to review what
was alleged to have been said by myself at the time of the
initial interview.
This affidavit was signed by the applicant after it
had been interpreted and explained to him (see
affidavit of Peter Wong, dated January 16, 1989).
Procedure
This application was initially brought before me
on a regular motions day in Calgary, on January
17, 1989. Although the originating notice of
motion does not expressly refer to section 18 of the
Federal Court Act the remedy sought is in sub
stance of that nature. There had been no adequate
service of the application on the respondent as of
January 17. The motion clearly could not be dealt
with at that time. The Federal Court Immigration
Rules, SOR/89-26 (P.C. Order 1988-2794) were
registered with the Clerk of the Privy Council on
December 27, 1988 and came into effect on that
date. They had not as of January 17, 1989 been
published in the Canada Gazette. Given the need
for a speedy determination of the application for
leave to commence a section 18 proceeding in this
case, counsel for the respondent and counsel for
the applicants agreed that the most expeditious
way of proceeding would be to have that applica
tion argued on January 20, 1989, using a tele
phone conference call mechanism. This is the
procedure which, on consent, was followed.
Respective Arguments
As noted above, counsel for the applicants
argues that disclosure of the interview notes is
necessary to ensure that the applicants are given a
fair hearing. He argues that a fair hearing requires
disclosure in this case because: the applicants were
under some degree of duress (stress at least) when
they were interviewed; the applicants did not have
counsel present during the interview; there is con
siderable scope for misinterpretation as between
the interviewer and the interviewee given the fact
that the communication must take place through
an interpreter. Counsel for the applicants seeks a
copy of the notes in order to review them with the
applicants prior to the section 48 hearing. Counsel
argues that the applicants should be entitled to
review the notes in order to ensure their accuracy
and also to verify that the applicants understood
the questions being asked. Counsel argues that
what he is seeking is analogous to the rights given
to individuals by the Privacy Act, R.S.C., 1985, c.
P-21. Under that Act individuals have a right to
review information which the government holds
with respect to them and to correct such informa
tion, if necessary. I would summarize counsel's
argument by saying that he is seeking to avoid
surprise at the screening hearing.
Counsel for the respondent argues: there is no
rule of fairness which requires one side or the
other to disclose all the evidence it intends to use
at a hearing prior to that hearing; the procedure
envisaged by the amendments to the Immigration
Act is a summary one and if the applicants' claim
is allowed, that summary procedure will be under-
cut; if the applicants are entitled to disclosure of
the notes then the respondent should equally be
entitled to full document discovery of the appli
cants. Counsel for the respondent notes that the
Adjudicator and the member of the Refugee Divi
sion who will conduct the screening hearing will
not have copies of the notes put before them prior
to the hearing; if the notes are used it will be to
challenge the applicants' evidence at the hearing
on the basis of prior inconsistent statements made
at the time of the port of entry interview. Counsel
also notes that the proceeding for determining the
validity of a claim to refugee status are "civil" in
nature and that the burden is on the applicants to
prove that they qualify as Convention refugees.
Lastly, as noted above, the applicants have been
given a summary document which I have been
given to understand contains "highlights" of the
interview.
Conclusions
On a leave to commence proceedings application
the task is not to determine, as between the par
ties, which arguments will win on the merits after
a hearing. The task is to determine whether the
applicants have a fairly arguable case, a serious
question to be determined. If so then leave should
be granted and the applicants allowed to have their
argument heard.
In the present case there is no law directly on
point. Neither counsel has been able to find any
jurisprudence which deals directly with the ques
tion of whether in certain circumstances, part of
the evidence should be disclosed, to the opposing
party, before the hearing in order to ensure a fair
hearing. Counsel for the applicants has cited the
general principles of fairness, particularly as they
relate to the requirement that a person is entitled
to know the case against him or her: Jones &
Villars, Principles of Administrative Law (1985,
Carswell) at pages 176-177, 3 Evans, Janisch,
Mullan, Risk, Administrative Law Cases, Text,
and Materials (1980) at pages 156-159. In this
regard, it is very clear that the procedure which is
required in any given case in order to ensure a fair
hearing, will depend very much on the
circumstances. 4 One of these circumstances is the
consequences which will result from the determi
nations being made at the hearing. In the present
case the consequences are significant. A failure to
demonstrate a credible basis for the claim to
refugee status, even though the decision of the
screening panel is appealable, sets the foundation
for all that follows.
Counsel for the respondent in his argument
referred to Bauer v. Regina (Canadian) Immigra
tion Commission, [1984] 2 F.C. 455 (T.D.) and
the text by Sgayias, Kinnear, Rennie and Saun-
ders, Federal Court Practice-1988, (Carswell) at
page 100, as well as Piperno v. Minister of
Employment and Immigration (1985), 64 N.R.
313 (F.C.A.). The portion of the text, Federal
Court Practice-1988, referred to deals with situa
tions in which it is inappropriate to issue prohibi
tion orders and with the inability of courts to issue
injunctions against the Crown. This is not a sig
nificant issue. Even though the applicants' motion
expressly seeks a prohibition order and an injunc
tion, if there is a right to grant leave to commence
a section 18 application there is equally a right, in
this Court, to stay the screening hearing until the
section 18 application is decided. This is an ancil
lary authority (see the decision of Mr. Justice
Marceau in Bhattia). With respect to the Bauer
case it was held that it was not a denial of natural
justice (fairness) to refuse a claimant the right to
3 Counsel made specific reference to the cases mentioned in
that portion of the text: Nicholson v. Haldimand-Norfolk
Regional Board of Commissioners of Police, [1979] 1 S.C.R.
311; McCarthy v. Bd. of Trustees of Calgary Roman Catholic
Separate S. Dist. No. 1, [1979] 4 W.W.R. 725 (Alta. T.D.);
Campeau Corpn. v. Calgary City Council (1980), 12 Alta. L.R.
(2d) 379 (C.A.); Martineau v. Matsqui Institution Discipli
nary Board, [1980] 1 S.C.R. 602; Harvie v. Calgary Regional
Planning Commn. (1978), 8 Alta. L.R. (2d) 166 (C.A.).
° Martineau v. Matsqui Institution Disciplinary Board,
[1980] 1 S.C.R. 602; Singh et al. v. Minister of Employment
and Immigration, [1985] 1 S.C.R. 177, at p. 212 ff; (1985), 58
N.R. 1, at p. 62 ff; Muliadi v. Canada (Minister of Employent
and Immigration), [ 1986] 2 F.C. 205 (C.A.), at p. 215 ff.
have a reporter present to transcribe the periodic
detention reviews, under which a claimant was
detained in a maximum security institution, pursu
ant to subsections 104(6) and (7) [now subsections
103(6) and (7)] of the Immigration Act. The
Court also held that the detention reviews were not
part of the inquiry process and therefore there was
no statutory obligation to keep a transcript. The
Court also dealt with the applicability of prohibi
tion orders and quoted from Halsbury's Laws of
England, Vol. 1, 4th ed., para. 130, page 138 for
the proposition that prohibition does not lie "to
correct the course, practice, or procedure of an
inferior tribunal". The first point dealt with in the
Bauer case is not really relevant to the present
proceedings. The applicant is not seeking to have a
proceeding or interview recorded but rather to
have access to a "recording" which has already
been made. The comments with respect to the
appropriateness of prohibition, is met on two
grounds: firstly, as noted above, if leave is granted
this Court surely has an ancillary authority to stay
the proceedings; secondly, immediately before the
above passage quoted from Halsbury is a text
which indicates that prohibition is granted when
there is a departure from the rules of natural
justice. It is a departure from the rules of fairness
which the applicants assert in this case.
The Piperno case is more to the point. It held
that there was no obligation on the Minister of
Employment and Immigration under the old
procedure to disclose in advance all the evidence,
he intended to submit to the Immigration Appeal
Board, in order for a refugee claimant to have a
fair hearing before that Board. There is no disa
greement with this statement but what I under
stand counsel to be saying is that in the particular
context of a screening hearing there is a require
ment, not that all the respondent's evidence be
disclosed in advance but that one specific segment
thereof be disclosed, ahead of time: the interview
notes taken at the port of entry examination.
Some of the arguments made by counsel for the
respondent can be dealt with easily. They are not
too convincing. A requirement that the notes be
disclosed will not undercut the summary nature of
that proceedings. The notes exist; it would not be
administratively difficult to provide the applicants
with a xerox copy of them. The applicants are not
seeking disclosure of all the respondent's evidence;
disclosing the notes would not lead to the conclu
sion that a full documentary discovery of both
sides should be provided. At the same time, I
accept counsel for the respondent's argument that
if the notes are relied on in cross-examination at
the screening hearing there is no question that they
will be available to the applicants at that time. The
question remains whether prior disclosure should
be required in order to ensure a fair hearing.
I am convinced that the applicants raise a fairly
arguable case. They have demonstrated a serious
question to be determined. Thus, leave to institute
a section 18 application should be granted. I have
reached this conclusion because: (1) there is no
law directly on point; (2) while a principle exists
that generally there is no need to disclose all the
evidence to a person prior to a hearing, in the
present case there may be justification for requir
ing disclosure of the particular interview notes in
question; (3) the jurisprudence indicates that what
will be required, as a matter of fairness, will vary
with the circumstances of each case and with the
seriousness of the consequences to the applicant;
(4) in this case the fact that the screening hearing
is designed to be a summary procedure and that
the consequences to the applicant may be severe,
combined with the circumstances under which the
statements were taken, lend support to the appli
cants' claim for prior disclosure. In my view, the
applicants have demonstrated a serious question to
be argued. Leave will be granted.
The applicants' motion also asks for an exten
sion of time within which to hear the section 18
application. The Federal Court Immigration
Rules provide that such application must be heard
within 15 days of leave to commence proceedings
being given. I make no order with regard to an
extension of time. This does not prevent the matter
being dealt with by any judge of this Court on
further application by one or other of the parties
should they so wish.
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