A-361-80
Angel Eduardo Jerez-Spring (Applicant)
v.
Immigration Appeal Board (Respondent)
and
Department of Employment and Immigration and
Deputy Attorney General of Canada (Mis -en-
cause)
Court of Appeal, Pratte and Le Dain JJ. and
Lalande D.J.—Montreal, December 4, 1980.
Judicial review — Immigration — Application to review
respondent's decision that applicant not a Convention refugee
— Whether Board erred in law — Application dismissed —
Decision neither unreasonable nor vitiated by error in law —
Board's function to decide whether requirements of the defini
tion of "Convention refugee" have been met — Political activ
ity to be considered but not given weight of a rule of law —
Immigration Act, 1976, S.C. 1976-77, c. 52, s. 2 — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
APPLICATION for judicial review.
COUNSEL:
W. M. Weigel for applicant.
S. Marcoux-Paquette for respondent and
mis -en-cause.
SOLICITORS:
W. M. Weigel, Montreal, for applicant.
Deputy Attorney General of Canada for
respondent and mis -en-cause.
The following is the English version of the
reasons for judgment delivered orally by
PRATTE J.: In this case the Board found, as I
interpret its decision, that there was no evidentiary
basis for concluding that applicant was a Conven
tion refugee. This finding does not appear unrea
sonable to me; nor does it appear to be vitiated by
any error of law. I would accordingly dismiss the
application.
I would add that I fail to understand the impor
tance the Board appears to attach to a dictum of
Kelly J. in Orellana 1 . This was the sentence in
which Kelly J. stated:
... the crucial test in this regard should not be whether the
Board considers that the applicant engaged in political activi
ties, but whether the ruling government of the country from
which he claims to be a refugee considers his conduct to have
been styled as political activity.
This observation was undoubtedly of importance in
the case in which it was made, but one must not
forget that it was merely an obiter dictum, which
in fact is not very clear to anyone not familiar with
the circumstances of that case. Such a dictum
should not be accorded the weight of a rule of law
which the Board must apply every time it has to
resolve a claim for refugee status. The function of
the Board when it has such a claim before it is to
say whether, in its opinion, the applicant meets the
definition given by section 2 to the phrase "Con-
vention refugee" [Immigration Act, 1976, S.C.
1976-77, c. 52]. In my view, all that Kelly J.'s
remark means is that, in performing this function,
the Board should not forget that an activity which
might have no political significance to us, if it had
taken place in Canada, may be seen by a foreign
government as having such significance. The
Board should not give Kelly J.'s observation any
greater weight than that.
* * *
LE DAIN J. concurred.
* * *
The following is the English version of the
reasons for judgment delivered orally by
LALANDE D.J. (dissenting): My finding is that
the application should be allowed, and the decision
of the Immigration Appeal Board quashed,
because of the error it made in requiring applicant
to prove not only that he was right to fear persecu
tion in his country because of his political beliefs,
but also that the Government of Chile had styled
his conduct political activity.
In my opinion, this error is an error of law.
[Unreported judgment rendered July 25, 1979, Court file
No. A-9-79.]
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