A-676-88
Joseph Adjei (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: ADJEI V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION)
Court of Appeal, Mahoney, Stone and MacGuigan
JJ.A.—Vancouver, January 25 and 27, 1989.
Immigration — Refugee status — Immigration Appeal
Board finding applicant not Convention refugee — Concluding
insufficient evidence to establish "substantial grounds for
thinking persecution would result" — Uncontradicted evidence
as to subjective fear not considered, although documentary
evidence as to objective basis for fear — Proper test whether
"good grounds" for fear, or "reasonable chance" of persecu
tion — Must show more than minimal possibility, but less
than probability of persecution — Although "substantial
grounds" test approved by House of Lords, too ambiguous in
Canadian context — That Board misled by phrase evidenced
by use of "would" instead of "could" and stringent conclusion
on facts.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Immigration Act, 1976, S.C. 1976-77, c. 52, s. 2(1).
CASES JUDICIALLY CONSIDERED
APPLIED:
Seifu v. Immigration Appeal Board (A-277-82, Pratte
J.A., judgment dated January 12, 1983, F.C.A., not
reported); Arduengo v. Minister of Employment and
Immigration (1981), 40 N.R. 436 (F.C.A.).
CONSIDERED:
Reg. v. Governor of Pentonville Prison, Ex Parte Fer-
nandez, [1971] 1 W.L.R. 987 (H.L.); R v Secretary of
State for the Home Dept, ex p Sivakumaran, [1988] 1
All ER 193 (H.L.).
The following are the reasons for judgment of
the Court delivered orally in English by
MACGUIGAN J.A.: This section 28 [Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10]
application focuses on the proper interpretation of
the definition of "Convention refugee" contained
in subsection 2(1) of the Immigration Act, 1976
[S.C. 1976-77, c. 52] ("the Act"). That definition
is as follows:
2. (1) ...
"Convention refugee" means any person who, by reason of a
well-founded fear of persecution for reasons of race, religion,
nationality, membership in a particular social group or politi
cal opinion,
(a) is outside the country of his nationality and is unable
or, by reason of such fear, is unwilling to avail himself of
the protection of that country ...
The applicant claimed Convention refugee
status by reason of political opinion and member
ship in two social groups, the Trade Union Con
gress and the People's National Party, in Ghana.
There was uncontradicted evidence that the trade
union movement in Ghana had a political as well
as an economic aspect (Appeal Book, pages 152-
153) but in any event no issue was raised as to the
reason for which the applicant qualified as a Con
vention refugee.
In its decision of May 19, 1988 [I.A.B. 87-6495,
not yet reported] the Immigration Appeal Board
("the Board") concluded that the applicant was
not a Convention refugee on the following basis
(Appeal Book, pages 357-358):
The definition of "Convention refugee" in the Immigration
Act, 1976, which governs this Board in cases of this type, has
been quoted above on page seven. The Board notes that it is not
necessary for Mr. Adjei to show that it is likely that he suffer
persecution. On the other hand, the mere possibility of persecu
tion will not result in a finding of Convention refugee status.
The test is whether there is a reasonable chance, or are
substantial grounds for thinking that the persecution may take
place. (For a discussion of the appropriateness of the "serious
possibility", "reasonable chance" and "substantial grounds for
thinking" test, see the dissent in Satiacum, Robert v. M.E.I.
(I.A.B. 85-6100), Chambers, Howard, Anderson (dissenting),
10 July 1987. The dissenting reasons are dated 25 March 1988.
See also Lord Keith in R v Secretary of State for the Home
Dept, ex p Sivakumaran, [1988] 1 All ER 193, (H.L.) at p.
196.)
The fear of persecution in the definition has a two-fold
aspect. On the one hand, the applicant must experience a
subjective fear. A man with great fortitude may not have a
subjective fear of persecution until adverse circumstances are
worse for him than for his less courageous fellow countryman;
nevertheless such a fear must be present in the mind of the
applicant for the definition of Convention refugee to be met.
The appropriate test as to whether or not a subjective fear
exists is that appropriate for determining the existence of other
matters of fact in a case of this kind, namely balance of
probabilities.
The second aspect is the objective element. The subjective
fear of the applicant discussed in the preceding paragraph must
have an objective basis. (Re Naredo and Minister of Employ
ment and Immigration (1981), 130 D.L.R. (3d) 752 (F.C.A.),
at pp. 753-754.). In the present case the Board's conclusion
with respect to the objective element of the test makes it
unnecessary for it to comment further on the subjective compo
nent of Mr. Adjei's fear.
The Board, after considering all the evidence presented, is of
the view that it is insufficient for it to conclude that there are
substantial grounds for thinking that persecution would result
were he to return or be returned to Ghana. Although, as
mentioned above, the Board recognizes that it is possible that
persecution might occur, it does not believe that there is a
serious possibility of such persecution.
In the light of the uncontradicted evidence by
the applicant as to his fear of persecution if he
returned to Ghana, and by Dr. Timothy Shaw of
Dalhousie University and documentary evidence
(particularly Amnesty International reports) as to
an objective basis for such fear, the Board's reluc
tance to acknowledge even the applicant's subjec
tive fear reads strangely. However, the issue raised
before this Court related rather to the well-found-
edness of any subjective fear, the so-called objec
tive element, which requires that the refugee's fear
be evaluated objectively to determine if there is a
valid basis for that fear.
It was common ground that the objective test is
not so stringent as to require a probability of
persecution. In other words, although an applicant
has to establish his case on a balance of probabili
ties, he does not nevertheless have to prove that
persecution would be more likely than not. Indeed,
in Arduengo v. Minister of Employment and
Immigration (1981), 40 N.R. 436 (F.C.A.), at
page 437, Heald J.A. said:
Accordingly, it is my opinion that the board erred in impos
ing on this applicant and his wife the requirement that they
would be subject to persecution since the statutory definition
supra required only that they establish "a well-founded fear of
persecution". The test imposed by the board is a higher and
more stringent test than that imposed by the statute.
The parties were agreed that one accurate way
of describing the requisite test is in terms of
"reasonable chance": is there a reasonable chance
that persecution would take place were the appli
cant returned to his country of origin?
We would adopt that phrasing, which appears to
us to be equivalent to that employed by Pratte J.A.
in Seifu v. Immigration Appeal Board (A - 277 - 82,
dated January 12, 1983, not reported):
[1]n order to support a finding that an applicant is a
Convention refugee, the evidence must not necessarily show
that he "has suffered or would suffer persecution"; what the
evidence must show is that the applicant has good grounds for
fearing persecution for one of the reasons specified in the Act.
[Emphasis added].
What is evidently indicated by phrases such as
"good grounds" or "reasonable chance" is, on the
one hand, that there need not be more than a 50%
chance (i.e., a probability), and on the other hand
that there must be more than a minimal possibili
ty. We believe this can also be expressed as a
"reasonable" or even a "serious possibility", as
opposed to a mere possibility.
In considering similar but not identical
legislation,' the House of Lords in Reg. v. Gover
nor of Pentonville Prison, Ex Parte Fernandez,
[1971] 1 W.L.R. 987, at page 994 (per Lord
Diplock) said:
... I do not think that the test ... is that the court must be
satisfied that it is more likely than not that the fugitive will be
detained or restricted if he is returned. A lesser degree of
likelihood is, in my view, sufficient ... "A reasonable chance,"
"substantial grounds for thinking," "a serious possibility"-1
see no significant difference between these various ways of
describing the degree of likelihood of the detention or restric
tion of the fugitive in his return which justifies the court in
giving effect to the provisions of section 4(1)(c).
These words were expressly applied by a later
House to refugee status determination on words
' [15 & 16 Eliz. 11, c. 68] Subsection 4(I)(c) of the Fugitive
Offenders Act 1967, provides that a person shall not be
returned to a country if it appears that "he might, if returned
be prejudiced at his trial or punished, detained or restricted"
[Emphasis added.]
virtually identical to those in the Canadian
legislation 2 in R y Secretary of State for the
Home Dept, ex p Sivakumaran, [ 1988] 1 All ER
193 (H.L.), at page 196 (Lord Keith).
Despite the terminology sanctioned by the
House of Lords for interpreting the British legisla
tion, we are nevertheless of the opinion that the
phrase "substantial grounds for thinking" is too
ambiguous to be accepted in a Canadian context.
It seems to go beyond the "good grounds" of
Pratte J.A. and even to suggest probability. The
alternative phrase "serious possibility" would raise
the same problem except for the fact that it clearly
remains, as a possibility, short of a probability.
In the case at bar, the Board relied, as one of its
equivalent terms, on "substantial grounds". In our
view this introduced an element of ambiguity into
its formulation. Indeed, two factors incline us to
believe that it may have been misled by this
phrase: its use of the verb "would" rather than
"could" in its summation on this point; and its
stringent conclusion on the facts. In any event, it is
impossible to be satisfied that the Board applied
the correct test to the facts.
In the light of our comments on this question, it
is unnecessary to consider the applicant's alterna
tive argument under paragraph 28(1)(c) of the
Federal Court Act.
The application should be allowed, the Board's
decision of May 19, 1988 set aside, and the matter
returned to the Board for reconsideration not
inconsistent with these reasons.
2 ... owing to well-founded fear of being persecuted for
reasons of race, religion, nationality, membership of a particu
lar social group or political opinion, is outside the country of his
nationality and is unable or, owing to such fear, is unwilling to
avail himself of the protection of that country ...
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