A-585-78
Angel Enrique Jiminez Tapia (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Pratte and Urie JJ. and Kelly
D.J.—Toronto, March 7; Ottawa, March 23,
1979.
Judicial review — Immigration — Immigration Appeal
Board decision concerning applicant's status as Convention
refugee made on basis of material Board not entitled to take
into account — Board's decision largely founded on letter
written by applicant's examining physician who conducted the
examination after applicant made application for redetermi-
nation, rather than on a sole consideration of documents
mentioned in s. 70(2) — Immigration Act, 1976, S.C. 1976-77,
c. 52, ss. 70(1),(2), 71(1) — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
F. Rotter for applicant.
G. Garton for respondent.
SOLICITORS:
Frederika M. Rotter, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
PRATTE J.: This is a section 28 application to
review and set aside a decision of the Immigration
Appeal Board determining, under section 71(1) of
the Immigration Act, 1976, S.C. 1976-77, c. 52,
that the applicant is not a Convention refugee.
In order to dispose of this application, I need not
consider all the grounds of attack put forward on
behalf of the applicant. In my view, the Board's
decision must be set aside because it was made on
the basis of material that the Board was not
entitled to take into account.
That decision was made under section 71(1)
following an application made pursuant to section
70. Those two sections of the Immigration Act,
1976 read as follows:
70. (1) A. person who claims to be a Convention refugee and
has been informed in writing by the Minister pursuant to
subsection 45(5) that he is not a Convention refugee may,
within such period of time as is prescribed, make an application
to the Board for a redetermination of his claim that he is a
Convention refugee.
(2) Where an application is made to the Board pursuant to
subsection (1), the application shall be accompanied by a copy
of the transcript of the examination under oath referred to in
subsection 45(1) and shall contain or be accompanied by a
declaration of the applicant under oath setting out
(a) the nature of the basis of the application;
(b) a statement in reasonable detail of the facts on which the
application is based;
(c) - a summary in reasonable detail of the information and
evidence intended to be offered at the hearing; and
(d) such other representations as the applicant deems rele
vant to the application.
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.
Section 71(1) requires that the decision of the
Board be made on the basis of the consideration of
the "application referred to in subsection 70(2)".
This means, in my view, that the Board, at that
preliminary stage, must base its decision on the
sole consideration of the documents mentioned in
section 70(2).
In the present case, the Board clearly failed to,
comply with that rule since its decision is, in a
large part, founded on the consideration of a letter
written by a doctor who had apparently examined
the applicant after he had made his application for
redetermination.
For these reasons, I would allow the application,
set aside the decision under attack and refer the
matter back to the Board for decision on the basis
that, under section 71(1), the Board cannot take
into consideration evidence other than the docu
ments mentioned in section 70(2).
* * *
URIE J.: I agree.
* * *
KELLY D.J.: I concur.
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.