A-726-90
Monica Mileva (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: MILEVA V. CANADA (MINISTER OF EMPLOY
MENT AND IMMIGRATION) (CA.)
Court of Appeal, Pratte, Marceau and Desjardins
JJ.A.—Montréal, January 23; Ottawa, February
25, 1991.
Immigration — Refugee status — Jurisdiction of adjudica
tor and member of Refugee Division to consider "change of
circumstances" in country of origin making persecution less
likely — Role of first instance tribunal under Immigration
Act, s. 46.01 — Whether "change of circumstances" part of
s. 2 definition of "Convention refugee" — Role of Refugee
Division under s. 69.1(5).
Constitutional law — Charter of Rights — Life, liberty and
security — Whether consistent with rules of fundamental
justice to allow first instance tribunal in Convention refugee
claim to consider change of circumstances in country of origin
making persecution less likely.
This was an application to set aside the decision of the
adjudicator and member of the Refugee Division (first instance
tribunal) that the applicant's claim to refugee status lacked a
credible basis and should not be referred to the Refugee
Division, and the exclusion order arising therefrom. The appli
cant comes from Bulgaria. She feared going back because the
police had fabricated a record of prostitution against her.
Furthermore, she could not continue her education: no school
would accept her as she had been arrested for participating in
demonstrations. After summarizing recent political changes in
Bulgaria, the adjudicator held that, in his opinion, applicant's
fear of persecution did not have the necessary credible basis.
The applicant submitted that the tribunal should not have
considered evidence of recent political changes in Bulgaria
which made it less likely that she would be persecuted in future.
The applicant argued that, under subsection 69.1(5) and para
graph 2(2)(e) of the Immigration Act, only the Refugee Divi
sion is authorized to decide, in cases where the Minister so
requests, whether a claimant has ceased to be a refugee because
the reasons for his fear of persecution have ceased to exist. The
applicant further argued that the tribunal wrongly considered
the conclusions which, in its opinion, were indicated by the
evidence, rather than those which the Refugee Division might
have drawn had the case gone before it.
A "Convention refugee" is defined in Immigration Act,
section 2 as a person who meets the requirements of paragraph
(a) and has not ceased to be a Convention refugee under
subsection 2(2). Subsection 2(2) provides that a person ceases
to be a Convention refugee when the reasons for the person's
fear of persecution cease to exist. Subsection 69.1(5) provides
that at a hearing into a claim, the Refugee Division shall allow
the Minister to present evidence, and if the Minister notifies
the Refugee Division that matters involving subsection 2(2) are
raised by the claim, to cross-examine witnesses and make
representations. Subsection 46.01(6) provides that if the
adjudicator or member of the Refugee Division find that there
is any credible evidence on which the Refugee Division might
determine the claimant to be a Convention refugee, either shall
determine that the claimant has a credible basis for his claim.
Held, the application should be allowed.
Per Pratte J.A.: Applicant's initial argument could not be
accepted. The first instance tribunal must decide whether it is
possible for the Refugee Division to recognize the refugee
status of the claimant. Political developments in a claimant's
country of origin which have removed the reasons for his fear of
persecution are relevant to whether that person can validly
maintain that he is a Convention refugee. The question raised
by such a claim is not whether the claimant had reason to fear
persecution in the past, but whether now, at the time his claim
is being decided, he has good grounds to fear persecution in the
future. This is supported by the definition of "Convention
refugee" which refers to not having ceased to be a Convention
refugee by virtue of subsection 2(2). Subsection 69.1(5) only
indicates the cases in which the Minister is entitled, at a
hearing on a refugee status claim, to cross-examine witnesses
and make representations. There is no comparable provision
applicable to hearings of the first instance tribinal because it
must always, under subsection 46(3), "afford the claimant and
the Minister a reasonable opportunity to present evidence,
cross-examine witnesses and make representations with respect
to those matters."
Applicant's second submission was valid. The adjudicator
erred in drawing conclusions from the evidence. The first
instance tribunal is not required to decide whether the change
in circumstances established by the evidence is sufficient to
defeat the claim. It must only decide whether that evidence is
such that it would be impossible for the Refugee Division to
allow the claim.
Per Marceau J.A. (concurring in the result): The first level
tribunal is not empowered to consider political changes in the
country from which the refugee claimant has fled. Only the
Refugee Division can deny refugee status based on political
changes removing reasonable basis for fear of persecution, and
perhaps then only at the instance of the Minister.
The "change in circumstances" causing a loss of refugee
status referred to in subsection 2(2) is not part of the general
basic definition of a refugee, which was drafted to incorporate
the definition of the U.N. Convention relating to the Status of
Refugees. The following principles were useful in interpreting
the relevant provisions: (i) A person is a refugee before being
recognized as such: he does not become a refugee because he is
recognized, but is recognized because he is a refugee. (ii) Being
a refugee depends on past events which caused him to flee his
country to seek protection and refuge elsewhere. (iii) The
"change in circumstances" applies only negatively to support a
denial or withdrawal of refugee status, a matter within the
exclusive jurisdiction of the Refugee Division.
The function assigned to the first level tribunal is opposed to
taking "changes in circumstances" into account. From section
46.01, it is clear that if the tribunal has found facts which could
support the allegation that the claimant fled his country
because of a justified fear of persecution on the specified
grounds, it could not contend that the claim had no credible
basis without assessing the impact of the evidence already
accepted on the reasonableness of the fear the claimant says he
still has. Such an assessment is beyond the jurisdiction of the
first instance tribunal.
The only explanation for subsection 69.1(5) is that the
change in circumstances as a negative factor presents problems
so complex in evidence, assessment and even international
relations that the legislature intended its consideration to be
first under the Minister's control and then announced in
advance.
If the first instance tribunal had the power to consider a
"change in circumstances" on its own initiative, the claimant
would be in a difficult situation procedurally. To establish his
right, he could no longer simply state the facts leading him to
seek refuge by showing that his fear of persecution was reason
able. He would also have to prove that the political changes in
his country since he left were not such as to make that fear
cease to exist or render it unreasonable. Such a system might
contravene the rules of fundamental justice referred to in
Charter, section 7.
Per Desjardins J.A.: The first instance tribunal has jurisdic
tion to hear evidence dealing with the political changes that
have occurred in the applicant's country of origin. They are one
of the essential components of the definition of "Convention
refugee". If the first instance tribunal were not allowed to
consider evidence of changes in circumstances in the country of
origin, it would be prevented from disallowing obviously
groundless claims.
The scope of subsection 46(3) need not be limited because of
the limitations in subsection 69.1(5). Both decision-making
levels have power to hear evidence regarding political changes
occurring in a country of origin, but they do not exercise the
same function with regard to such evidence.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canadian Charter of Rights and Freedoms, being Part I
of the Constitution Act, 1982, Schedule B, Canada Act
1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II,
No. 44], s. 7.
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Immigration Act, R.S.C., 1985, c. I-2, ss. 2 (as am. by
R.S.C., 1985 (4th Supp.), c. 28, s. 1), 46(3) (as am.
idem, s. 14), 46.01(6) (as enacted idem, s. 14), 69.1(5)
(as enacted idem, s. 18).
United Nations Convention relating to the Status of
Refugees, July 28, 1951, [1969] Can. T.S. No. 6, Art.
1, ss. A, C, E, F.
CASES JUDICIALLY CONSIDERED
Leung v. Canada (Minister of Employment & Immigra
tion) (1990), 74 D.L.R. (4th) 313; 12 Imm. L.R. (2d) 43
(F.C.A.).
AUTHORS CITED
Office of the United Nations High Commissioner for
Refugees. Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Conven
tion and the 1967 Protocol relating to the Status of
Refugees, Geneva, September 1979.
COUNSEL:
Anthony Daoulov for applicant.
Johanne Levasseur for respondent.
SOLICITORS:
St-Pierre, Buron & Associés, Montréal, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.A.: The applicant comes from Bul-
garia. On her arrival in Canada on December 18,
1989 she claimed refugee status. As the Immigra
tion Act [R.S.C., 1985, c. I-2] now requires, this
claim was submitted to an adjudicator and a
member of the Refugee Division for them to
decide whether it should be referred to the
Refugee Division or should instead be summarily
dismissed on the ground it was inadmissible or
lacked any basis. On July 10, 1990 the adjudicator
and the member of the Refugee Division decided
that the applicant's claim did not have a "credible
basis" and for this reason should not be referred to
the Refugee Division; the adjudicator at once
made an exclusion order against the applicant,
whom he had previously found could not be admit
ted to Canada. On this basis an application was
made pursuant to section 28 of the Federal Court
Act [R.S.C., 1985, c. F-7].
Counsel for the applicant made two arguments
in support of her appeal. First, he contended that
the adjudicator and the member of the Refugee
Division should not have taken into account evi
dence of recent political changes occurring in Bul-
garia. In his submission, this was evidence which
should only have been considered by the Refugee
Division if the matter was referred to it. Counsel
for the applicant also contended as his second
argument that, in any case, the adjudicator and
the member of the Refugee Division did not ask
themselves the question they should have asked
concerning the evidence before them.
Before going any further, it will be useful to
recall the difference between the respective roles of
the Refugee Division, on the one hand, and the
adjudicator and member of the Refugee Division,
on the other, when they have to consider a claim
for refugee status the admissibility of which is not
in dispute.
What the Refugee Division is asked to do' is to
determine whether, on the evidence, the claimant
is a Convention refugee. The Refugee Division
must accordingly take note of evidence relating to
past or present facts affecting the claimant, his
family and country of origin. Such evidence must
be weighed by the Refugee Division in the same
way as any other tribunal would do, taking into
account its credibility and evidentiary force, and
deciding what facts are established by that evi
dence. The Refugee Division must then decide
whether the facts so proven are such that it can
conclude that the claimant really runs the risk of
being persecuted for reasons mentioned in the
Convention if he returns to his country. As it is
impossible to predict the future, the Refugee Divi-
' See s. 69.1 of the Immigration Act [as enacted by R.S.C.,
1985 (4th Supp.), c. 28, s. 18], and in particular the English
version of s. 69.1(9).
sion in making such a judgment of course is only
expressing an opinion.
The function of an adjudicator and a member of
the Refugee Division is defined by subsection
46.01(6) [as enacted idem, s. 14] of the Act. They
also must take note of the various points of evi
dence submitted to them. They must rule on the
credibility of that evidence. They must then con
sider whether, based on the evidence they find to
be credible, the Refugee Division could reasonably
conclude that the claim was valid if the matter was
referred to it. It is not their function to decide
what facts are established by the evidence; nor do
they have to decide whether the evidence supports
the conclusion that the claimant really runs the
risk of being persecuted if he returns home. After
deciding on the credibility of the evidence, the only
question the adjudicator and the member of the
Refugee Division can ask themselves is whether,
based on such evidence as is credible, the Refugee
Division could if it had the matter before it con
clude that facts existed which it could regard as
sufficient to make out the validity of the claim. 2
I now return to the two arguments made by the
applicant.
Counsel for the applicant first argued that the
adjudicator and the member of the Refugee Divi
sion exceeded their jurisdiction by taking into
account evidence showing that significant political
changes had taken place in Bulgaria which made it
less likely that the applicant would be persecuted
in future. He based this argument on subsection
69.1(5) and paragraph 2(2)(e) [as am. idem, s. 1]
of the Acta which, he submitted, authorize the
Refugee Division, and only the Division, to decide
in cases where the Minister so requests whether a
claimant has ceased to be a refugee because the
reasons for his fear of persecution have ceased to
exist.
2 See Leung v. Canada (Minister of Employment & Immi
gration) (1990), 74 D.L.R. (4th) 313 (F.C.A.).
3 These two provisions read as follows:
69.1...
(5) At the hearing into a claim, the Refugee Division
(a) shall afford the claimant a reasonable opportunity to
present evidence, cross-examine witnesses and make
representations; and
(Continued on next page)
This first argument must be dismissed. The
adjudicator and the member of the Refugee Divi
sion must decide whether it is possible for the
Refugee Division to recognize the refugee status of
the person claiming it. To arrive at this decision
they must take into account any credible evidence
tending to establish the facts relevant to this ques
tion. The fact that the political situation existing in
a claimant's country of origin has developed in
such a way as to remove the reasons causing him
to fear persecution is obviously a fact relevant to
the question of whether that person can validly
maintain that he is a Convention refugee. The
question raised by a claim to refugee status is not
whether the claimant had reason to fear persecu
tion in the past, but rather whether he now, at the
time his claim is being decided, has good grounds
to fear persecution in the future. Any doubt that
there may be in this regard disappears when one
reads the definition given to the expression "Con-
vention refugee" in subsection 2(1) [as am. idem].
According to that definition, a person is a "Con-
vention refugee" if he meets the requirements
stated in paragraph (a) and, further, "has not
ceased to be a Convention refugee by virtue of
subsection (2)". 4 Subsection 69.1(5), relied on by
counsel for the applicant, has nothing to do with
this. It only indicates the cases in which the Minis
ter is entitled, at a hearing on a refugee status
claim, to cross-examine witnesses and make
representations. There is no such provision appli-
(Continued from previous page)
(b) shall afford the Minister a reasonable opportunity to
present evidence and, if the Minister notifies the Refugee
Division that the Minister is of the opinion that matters
involving section E or F of Article I of the Convention or
subsection 2(2) of this Act are raised by the claim, to
cross-examine witnesses and make representations.
2....
(2) A person ceases to be a Convention refugee when
(e) the reasons for the person's fear of persecution in the
country that the person left, or outside of which the person
remained, cease to exist.
4 I assume here, as the applicant did, that s. 2(2) of the
Immigration Act does not apply only to persons ceasing to have
refugee status after successfully having claimed it. That does
not necessarily mean this interpretation should be accepted.
cable to hearings of the adjudicator and member
of the Refugee Division because the latter are
always, under subsection 46(3) [as am. idem, s.
14], required to "afford the claimant and the
Minister a reasonable opportunity to present evi
dence, cross-examine witnesses and make
representations with respect to those matters".
While the adjudicator and member of the
Refugee Division must consider evidence tending
to show a change in circumstances in the claim
ant's country of origin, they are not required to
decide whether the change in circumstances estab
lished by this evidence is sufficient to defeat the
claim. They are only required to decide whether
that evidence is such that it would be impossible
,for the Refugee Division to allow the claim.
This leads me to the applicant's second argu
ment, alleging that the adjudicator and member of
the Refugee Division wrongly considered the con
clusions which in their opinion were indicated by
the evidence, rather than those which the Refugee
Division might perhaps have drawn if the case
went before it.
In my view this second allegation is valid. In his
decision, the adjudicator first summarized the tes
timony of the applicant, whose credibility he did
not question:
You say you took part in four public demonstrations, and
that at the last one you were arrested, beaten and brutalized,
and then released because you were a minor. Soon afterwards,
you were expelled from school. There were some 1,000 pupils at
your school and only you were expelled, so far as you know, as
you say you were the only one to take part in the
demonstration.
You were subsequently denied admission to two schools and
excluded from the young communist organization, and were
then arrested and charged with prostitution. You went into the
police records as being a prostitute. You were later asked to be
an informer and you refused.
You fear going back to Bulgaria because of this record of
prostitution which was fabricated against you and also because
you say that you are unable to undertake higher education
studies.
The adjudicator then summarized the evidence on
the recent development of the political situation in
Bulgaria and discussed his conclusions. It is worth
citing certain passages from this latter part of the
decision, paying particular attention to the words I
have emphasized:
After analysing this evidence and the submissions, I have
come to the following conclusion.
The non-repressive and positive development of political
demonstrations in my view greatly minimizes the effects or the
impact of your arrest at the demonstration. As your expulsion
from school was a consequence of this participation in the
demonstration, I tend to regard as plausible and possible Mrs.
Drapeau's suggestion that you apply for a review of your
expulsion from school by the authorities now in power.
You fear that the police will use the false prostitution record
prepared against you. However, as it has been shown that this
is an offence under the Criminal Code, you can defend yourself
with the services of a lawyer
You do have a subjective fear since you show it. However, in
my view the objective fear is based on matters which do not, in
the present situation in Bulgaria, have the necessary credible
basis. Accordingly, in my opinion the persecution you fear does
not exist, since it is no longer possible to speak of evidence of
persecution.
I can make no connection between the political status
declared and the fear of persecution, and as I see it the need for
protection does not have the minimum justification required. I
am not unmindful of the arguments of Mr. Daoulov that there
is some uncertainty and the changes in the direction of personal
freedom have not perhaps reached all local levels, but the facts
which involve you personally must still be related to the present
circumstances. The fact of being prevented from continuing
studies does not in my opinion stand up to such an analysis. The
refusal to become a spy is, in my view, another fact which loses
its immediacy when looked at in light of the present situation in
the country.
It seems to me on reading this decision that the
adjudicator was concerned with the conclusions
which, in his opinion, should be drawn from the
evidence. As I said above, that is not the question
he should have asked himself.
I would accordingly allow the application, set
aside the decision rendered by the adjudicator and
the member of the Refugee Division on July 10,
1990 that the applicant's claim did not have a
credible basis, and I would further set aside the
exclusion order made against the applicant by the
adjudicator on that day; finally, I would refer the
matter back so that the applicant may have a new
hearing during which she may again claim refugee
status, if she wishes.
* * *
The following is the English version of the
reasons for judgment rendered by
MARCEAU J.A. (concurring in the result): I
entirely concur in the opinion of Pratte J.A. that
this application to set aside should be allowed. I
also feel that there is no doubt that the adjudicator
and the Refugee Division member could not decide
that the recent political changes occurring in Bul-
garia had deprived the claim of the refugee status
claimant of the credible basis necessary for it to be
referred to the Refugee Division. However, I rest
my conclusion on a more direct and decisive basis
than that chosen by my brother Judge. I feel that
the first instance tribunal constituted by the
adjudicator and the member of the Refugee Divi
sion, in the new system of adjudication established
by Parliament for refugee claims,' is simply not
empowered to consider political changes occurring
in the country from which the claimant has fled in
order to avoid persecution. My brother Judge
categorically rejects this proposition, which of
course goes beyond the scope of the case and, in
the current international situation, is likely to be
increasingly in question: I must therefore try to
explain, with respect, why I feel it is correct.
Those who argue that political changes in the
country from which the claimant has fled should
be taken into consideration even at this early stage
do so on the basis of considerations which they
associate with the very idea of a refugee and the
function assigned to the first instance tribunal in
examining a claim for refugee status as established
by the new legislation.
First, it is pointed out that at the very heart of
the refugee's fear of persecution is the political and
social context of the country from which he comes,
and that makes this context not only a relevant but
a crucial aspect of the definition of a refugee. It is
further pointed out that the validity of a refugee
status claim has to be determined on the day the
tribunal considers it, which means that the politi
cal and social context that must be taken into
5 Act to amend the Immigration Act, 1976, S.C. 1988, c. 35,
in effect on January 1, 1989.
account to decide on the reasonableness of the
claimant's fear of claiming his country's protection
is that existing at the time of the decision. Finally,
it is noted that the Act itself specifically recognizes
that a change in the political and social context of
the country of origin, a "change in circumstances",
as they say, may cause a person who has "'already
been recognized as having refugee status to lose it,
and this must necessarily mean that such a
"change in circumstances" should be taken into
account in examining the claim, as is in any case
suggested by the very definition of a "Convention
refugee" in subsection 2(1), referring to the case
of loss of status under subsection 2(2). Then,
reasoning from this, they say they cannot see how
this first instance tribunal, the function of which is
to determine whether there is, in the evidence
submitted to it and which it finds to be credible,
material that could lead the Refugee Division to
recognize that the claim is valid, could adequately
perform its function without considering informa
tion so central as a significant change in the
political context of the country from which the
claimant comes.
This reasoning is clear and the conclusion to
which it leads seems self-evident, but I must say,
with respect, that I am not persuaded by it. It rests
on an understanding of the Act which does not
quite correspond to my own, despite the fact that I
also have arrived at an opposite conclusion on the
basis of considerations relating to the very idea of
a refugee and the function of the first instance
tribunal. I base my approach on three major
considerations.
1. The first is the most difficult to explain, as it
relates to the very idea of a refugee and is to some
extent opposed to a reasoning premise supporting
my brother judge's position. Accordingly, I men
tion it with the utmost respect. In my opinion, the
"change in circumstances"—a phrase which, I
repeat, is used to refer to a significant change
occurring in the political or social situation in the
country which the claimant has been forced to flee
in order to avoid persecution (and I also will use
this phrase for the sake of simplicity)—is not part
of the general basic definition of a refugee.
The definition of the word "Convention
refugee" contained in subsection 2(1) of the Act is
clearly designed to incorporate that of the United
Nations Convention relating to the Status of
Refugees, signed at Geneva in 1951 and amended
in part by a Protocol signed at New York in 1967.
This is what explains its rather complicated
phraseology. In the 1951 Convention the word
"refugee", according to the general definition
given in Article 1, Section A, paragraph (2),
applied to any person:
Article 1
A. ...
(2) As a result of events occurring before 1 January 1951
and owing to well-founded fear of being persecuted for reasons
of race, religion, nationality, membership of a particular social
group or political opinion, is outside the country of his national
ity and is unable or, owing to such fear, is unwilling to avail
himself of the protection of that country; or who, not having a
nationality and being outside the country of his former habitual
residence as a result of such events, is unable or, owing to such
fear, is unwilling to return to it.
The "critical date" of January 1, 1951 was as we
know included at the request of certain participat
ing States in order to limit the obligations they
were assuming. It is this limit which the
New York Protocol was designed to drop, because
of new situations which had increased in number,
but it did so without otherwise altering the provi
sions of the Convention, and among these provi
sions was one which deserves special note, that of
Article 1, Section C, regarding definitions, which
reads as follows:
C. This Convention shall cease to apply to any person falling
under the terms of Section A if:
(1) He has voluntarily re-availed himself of the protection of
the country of his nationality; or
(2) Having lost his nationality, he has voluntarily re-acquired
it; or
(3) He has acquired a new nationality, and enjoys the
protection of the country of his new nationality; or
(4) He has voluntarily re-established himself in the country
which he left or outside which he remained owing to fear of
persecution; or
(5) He can no longer, because the circumstances in connex-
ion with which he has been recognized as a refugee have ceased
to exist, continue to refuse to avail himself of the protection of
the country of his nationality;
Provided that this paragraph shall not apply to a refugee
falling under section A(1) of this article who is able to invoke
compelling reasons arising out of previous persecution for refus
ing to avail himself of the protection of the country of
nationality;
(6) Being a person who has no nationality he is, because the
circumstances in connexion with which he has been recognized
as a refugee have ceased to exist, able to return to the country
of his former habitual residence;
Provided that this paragraph shall not apply to a refugee
falling under section A(1) of this article who is able to invoke
compelling reasons arising out of previous persecution for refus
ing to return to the country of his former habitual residence.
Those are the sources for subsection 2(1) of the
Act, the wording of which in its two versions is as
follows:
"Convention refugee" means any person who
(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 the person's 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 the person's former habitual residence and is
unable or, by reason of that fear, is unwilling to return to
that country, and
(b) has not ceased to be a Convention refugee by virtue of
subsection (2),
but does not include any person to whom the Convention does
not apply pursuant to section E or F of Article 1 thereof, which
sections are set out in the schedule to this Act;
And I also set out subsection (2), to which refer
ence is made:
2....
(2) A person ceases to be a Convention refugee when
(a) the person voluntarily reavails himself of the protection
of the country of the person's nationality;
(b) the person voluntarily reacquires his nationality;
(c) the person acquires a new nationality and enjoys the
protection of the country of that new nationality;
(d) the person voluntarily re-establishes himself in the coun
try that the person left, or outside of which the person
remained, by reason of fear of persecution; or
(e) the reasons for the person's fear of persecution in the
country that the person left, or outside of which the person
remained, cease to exist.
It appears to me that these provisions can only
be understood in light of a number of underlying
ideas which are set out in a chapter titled "General
Principles" at the beginning of the Handbook on
Procedures and Criteria for Determining Refugee
Status, published by the Office of the United
Nations High Commissioner for Refugees. 6
The first idea is that a person is necessarily a
refugee before being recognized as such: he does
not become a refugee because he is recognized, but
is recognized because he is a refugee; there is first
a situation of fact which gives rise to a condition,
then recognition of a right which is expressed by a
status.
A second idea is that a person's being a refugee
depends on past events, as it is because of events in
which he has been involved that he has had to flee
his country to seek protection and refuge else
where. "[Any person] who . . . [a]s a result of
events occurring ... and owing to a well-founded
fear of being persecuted ... is outside the country
... and is ... owing to such fear ... unwilling to
avail himself", the Convention states. "[Any
person] who ... by reason of a well-founded fear
... is outside the country of the person's national
ity and is ... by reason of that fear ... unwilling
to avail himself of the protection of that country",
subsection 2(1) of the Act repeats. The connection
between the fear and the fact of being out of the
country and the same fear (that fear) and the
refusal to return is apparent; and in this respect, it
should be noted, the technical definition in the
Convention and the Act is in accordance with the
ordinary meaning of the word "refugee" which (I
take the Petit Robert definition) [TRANSLATION]
"is used of a person who has had to flee the place
he lived in so as to escape a danger (war, political
or religious persecution and so on)".
I realize that this idea of a refugee "sur place"
has been taken and applied in practice to a person
who did not flee his country through fear of perse
cution, but who after a period spent abroad fears
to return because of events that have occurred
during his absence. Such a person may be, for
example, a diplomat or other public official sta-
6 I am not of course forgetting that the Convention referred
to in the Handbook is not law in Canada as such, but our
statute was adopted to give effect to the obligations resulting
from the Convention and the definition of "refugee" which it
contains is intended to be exactly that of the Convention: there
could be no better source of information or tool for understand
ing than the Handbook to which I have referred.
tioned abroad, a prisoner of war or a student; but
in my opinion this is an artificial extension of the
basic idea of a refugee, which is accepted in con
nection with granting status because of the equiva
lence of the need for protection felt.
A third idea, connected with the second, is that
the "change in circumstances" that occurred since
his departure is not a reason for disputing that the
claimant did flee his country to seek refuge else
where, that he is in fact a refugee: all the "change
in circumstances" permits to dispute is whether
the claimant still has reason to doubt that the
authorities in his country will or can protect him
and so whether he really still needs a refuge. It is
thus given only a negative meaning or value, as is
done for all "cessation" clauses, which our Act
adopts in subsection 2(2), and for all "exclusion"
clauses in Sections E and F of Article 1 of the
Convention, which our Act adopts by reference.'
This negative meaning or value applies only in the
recognition of status, either to withdraw status
already granted, as provided for in Section C of
Article 1 of the Convention and subsection 2(2) of
our Act, or to refuse to grant it, as assumed by
subsection 69.1(5) dealing with consideration of a
claim by the Refugee Division, a subsection to
which I will return but which I quote forthwith:
7 Ss. E and F of Article I of the Convention read as follows:
Article 1
E. This Convention shall not apply to a person who is
recognized by the competent authorities of the country in
which he has taken residence as having the rights and
obligations which are attached to the possession of the
nationality of that country.
F. The provisions of this Convention shall not apply to any
person with respect to whom there are serious reasons for
considering that:
(a) he has committed a crime against peace, a war crime,
or a crime against humanity, as defined in the internation
al instruments drawn up to make provision in respect of
such crimes;
(b) he has committed a serious non-political crime outside
the country of refuge prior to his admission to that country
as a refugee;
(e) he has been guilty of acts contrary to the purposes and
principles of the United Nations.
69.1...
(5) At the hearing into a claim, the Refugee Division
(a) shall afford the claimant a reasonable opportunity to
present evidence, cross-examine witnesses and make
representations; and
(b) shall afford the Minister a reasonable opportunity to
present evidence and, if the Minister notifies the Refugee
Division that the Minister is of the opinion that matters
involving section E or F of Article 1 of the Convention or
subsection 2(2) of this Act are raised by the claim, to
cross-examine witnesses and make representations.
Accordingly, as I understand it, the "change in
circumstances" is a matter which is not part of the
basic definition of a refugee, the definition appli
cable to a refugee strictly speaking, whom I have
called a de facto refugee; it only applies negative
ly, to support a denial or withdrawal of refugee
status, 8 which is within the exclusive jurisdiction
of the Refugee Division.
2. The second consideration I wish to mention is
independent of the first, in that I feel it is valid
regardless of whether I am wrong as to the distinc
tion between criteria of positive and negative value
in granting refugee status, and that in fact and
whatever the circumstances a person must be con
sidered a refugee only if the fear of persecution
which caused him to flee his country has continued
to be objectively reasonable despite the political
changes that have taken place in the meantime. I
submit that in any case the function assigned to
the adjudicator and the member of the Refugee
Division, as the first instance tribunal in the proce
dure for considering a refugee status claim, is
opposed to taking "changes in circumstances" into
account. As we know, this function is defined in
subsection 46.01(6) of the Act, in terms which
must be kept clearly in mind:
46.01.. .
(6) If the adjudicator or the member of the Refugee Divi
sion, after considering the evidence adduced at the inquiry or
hearing, including evidence regarding
" In the case of a refugee "sur place", of course, the situation
is completely different since the natural information is the
positive element or criterion on which the claim is based.
(a) the record with respect to human rights of the country
that the claimant left, or outside of which the claimant
remains, by reason of fear of persecution, and
(b) the disposition under this Act or the regulations of claims
to be Convention refugees made by other persons who alleged
fear of persecution in that country,
is of the opinion that there is any credible or trustworthy
evidence on which the Refugee Division might determine the
claimant to be a Convention refugee, the adjudicator or
member shall determine that the claimant has a credible basis
for the claim.
I simply think it is clear, as I understand the
ideas involved, that if the adjudicator and member
of the Refugee Division have been able to find in
the credible evidence admitted by them facts
which could support the claimant's argument that
he fled his country through a justified fear of
persecution on the specified grounds, they could
not contend that the claim had no credible basis.
In order to be able to determine whether the new
factors, resulting from an alleged "change in cir
cumstances" and generally applicable, so offset the
proven information applicable to the claimant as
to make it "non-existent" within the meaning of
the provision ("there is ... evidence", the provision
states), they would have to make an assessment
based on the various points of evidence accepted
by them and the impact which this may be regard
ed as having on the reasonableness of the fear the
claimant says he still has, and that assessment is
simply not within their jurisdiction.
This is the point at which I wished to return to
subsection 69.1(5), which as I said above assumes
that the "change in circumstances" could lead to
the denial of refugee status. I think the provision
should be repeated:
69.1 ...
(5) At the hearing into a claim, the Refugee Division
(a) shall afford the claimant a reasonable opportunity to
present evidence, cross-examine witnesses and make
representations; and
(b) shall afford the Minister a reasonable opportunity to
present evidence and, if the Minister notifies the Refugee
Division that the Minister is of the opinion that matters
involving section E or F of Article 1 of the Convention or
subsection 2(2) of this Act are raised by the claim, to
cross-examine witnesses and make representations.
What I wished first of all to note was the use of
the expressions, in French, "met en cause ... le
paragraphe 2(2) de la présente loi" and in English,
"matters involving ... subsection 2(2) of this Act
are raised". Clearly, it is the possibility that the
status will be denied for one of the causes of
withdrawal mentioned in subsection 2(2) that was
intended, not cases in which status previously
granted has already been withdrawn. In the case of
a claim made again after loss of status, there is no
need of opinions or representations to the Refugee
Division: the very definition of a refugee is made
inapplicable by the wording of subsection 2(1)
itself and there is no doubt that the claim must be
dismissed forthwith.
However, what I especially wished to mention is
this requirement of prior notice so that the Minis
ter can cross-examine witnesses and make
representations when in his opinion "matters
involving Section E or F of Article 1 of the Con
vention or subsection 2(2) of this Act are raised".
This section might well deal expressly only with
the powers of the Minister and the possibility that
the proceeding may involve argument and counter-
argument when there is any chance that status will
be denied on grounds mentioned in
subsection 2(2), in particular the "change in cir
cumstances"; but this provision is not isolated and
must be seen in its context. It must be given a
meaning. Is it conceivable that the first instance
tribunal and the Refugee Division are fully
empowered to take into account the "change in
circumstances", but that the Minister, simply to
raise and discuss it, is subject to a requirement of
prior notice; or better still, can it be that the
Minister has full leeway before the first instance
tribunal, but before the Refugee Division his right
of making representations depends on prior notice?
The only explanation I see for this provision is
that the "change in circumstances" as a negative
factor presents problems so complex in evidence,
assessment and even possibly international rela
tions that the legislature intended its consideration
to be first under the Minister's control and then
announced in advance. This leads me to my third
consideration.
3. This third consideration can only give rise to
an alternative argument of convenience, but it is
one which seems worth considering. If the new
system of adjudication created by Parliament for
refugee status claims gave the first instance tri
bunal and the Refugee Division the power, and
even the duty, to consider a "change in circum
stances" freely and on their own initiative, it would
place the claimant in a very difficult situation
procedurally and impose on him extremely heavy
evidence requirements. To establish his right, the
claimant could no longer simply state the facts
leading him to seek refuge elsewhere by showing
that his fear of persecution was fully reasonable,
he would also have to assume the burden of prov
ing that the political changes occurring in his
country since he left it are not such as to make
that fear cease to exist or render it unreasonable;
and he would have to do so without knowing in
advance the changes likely to be considered and
without any adequate means of properly assessing
their significance. I find it hard to see how such a
system would be entirely consistent with the rules
of fundamental justice referred to by section 7 of
the Canadian Charter of Rights and Freedoms
[being Part I of the Constitution Act, 1982,
Schedule B, Canada Act 1982, 1982, c. 11 (U.K.)
[R.S.C., 1985, Appendix II, No. 44]].
These then are the considerations which lead me
to say that the political changes occurring in a
claimant's country of origin since his departure (in
the case of an ordinary refugee, and not a refugee
"sur place", as explained above) are not within the
jurisdiction of the adjudicator and member of the
Refugee Division responsible for determining
whether there is a credible basis for the claim. The
claim of the claimant must be assessed first on the
basis of past events involving her. Refugee status
could undoubtedly be denied because of political
changes which have removed any reasonable basis
from her fear of claiming the protection of her
country of origin at the present time, because then
there can no longer be a duty to give her refuge;
but only the Refugee Division can do this, and
perhaps even only (but I do not need to go that far
at present) at the instance of the Minister and
after notice.
In my opinion, therefore, it is because the
adjudicator and member of the Division have gone
beyond their function by proceeding on a basis
which was not within their powers that their deci
sion cannot stand and should be set aside.
* * *
The following is the English version of the
reasons for judgment rendered by
DESJARDINS J.A.: Like my brother Pratte J.A.,
I consider that the first instance tribunal has juris
diction to hear evidence dealing with the political
changes that have occurred in the applicant's
country of origin.
Subsection 46(3) of the Immigration Act 9 is
written in general terms. The political changes in
the country of origin are, in my opinion, one of the
essential components of the definition of the term
"Convention refugee" found in paragraph (b) of
that definition, 10 which incorporates by adoption
subsection 2(2) of the Act. Before the first
instance tribunal the claimant, who certainly is not
unaware himself of changes taking place in his
country of origin, has the burden of showing, if
there is evidence to the contrary but even if there
is not, that the reasons which caused him to fear
persecution have not ceased to exist." He may also
at this stage rely on subsection 2(3) [as am. idem,
s. 1] of the Act, which provides:
2....
(3) A person does not cease to be a Convention refugee by
virtue of paragraph (2)(e) if the person establishes that there
are compelling reasons arising out of any previous persecution
for refusing to avail himself of the protection of the country
that the person left, or outside of which the person remained,
by reason of fear of persecution.
9 Immigration Act, R.S.C., 1985, c. 1-2.
46....
(3) Where the adjudicator and the member of the Refugee
Division are considering the matters referred to in para
graphs (1)(b) and (c), they shall afford the claimant and the
Minister a reasonable opportunity to present evidence, cross-
examine witnesses and make representations with respect to
those matters.
11 See s. 2 of the Immigration Act.
11 S. 2(2)(e) of the Immigration Act.
In short, the claimant must always establish that
his fear is justified.
The first instance tribunal must determine the
credibility of any evidence submitted to it. It must
then determine whether, on the evidence so found
to be credible, the Refugee Division could reason
ably conclude that the claim was justified. It is not
required to weigh this evidence in terms of the
existence of each of the essential components of
the definition of a "Convention refugee", since
that is the function of the Refugee Division. How
ever, if the evidence is such that the Refugee
Division could never conclude that the claim was
valid, the first instance tribunal has the power to
disallow the claim on the ground that it lacks a
credible basis. 2
Denying the first instance tribunal the power to
admit evidence of changes in circumstances taking
place in the country of origin would amount to
denying it the right to disallow an obviously
groundless claim.
My brother Marceau J.A. is undoubtedly right
in pointing out the marked difference between the
wording of subsections 69.1(5) 13 and 46(3) of the
Act. However, I would certainly not conclude from
this that it is necessary to limit the scope of
subsection 46(3) because of the limitations con
tained in subsection 69.1(5). Both decision-making
levels have power to hear evidence regarding
political changes occurring in a country of origin,
but they do not have the same function with
regard to such evidence. 14
12 Ss. 46(1) and 46.01(6) of the Act; Leung v. Canada
(Minister of Employment & Immigration) (1990), 74 D.L.R.
(4th) 313 (F.C.A.).
' 3 69.1...
(5) At the hearing into a claim, the Refugee Division
(a) shall afford the claimant a reasonable opportunity to
present evidence, cross-examine witnesses and make
representations; and
(b) shall afford the Minister a reasonable opportunity to
present evidence and, if the Minister notifies the Refugee
Division that the Minister is of the opinion that matters
involving section E or F of Article 1 of the Convention or
subsection 2(2) of this Act are raised by the claim, to
cross-examine witnesses and make representations.
14 We are not concerned in the case at bar with the applica
tion of s. 69.2 of the Act.
I would dispose of this case as suggested by
Pratte J.A.
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.