A-332-88
Satnam Singh Bains (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
A-333-88
Peter James (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: BAINS V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION) (CA.)
Court of Appeal, Marceau, Hugessen and Mac-
Guigan JJ.A.—Toronto, July 11 and 14, 1989.
Immigration — Refugee status — S. 28 applications to set
aside Immigration Appeal Board decisions refusing to extend
time to file applications for redetermination of claims to
refugee status — Board held, based on Act s. 70(1) and
Regulations s. 40, lacked jurisdiction to entertain application
— Rigid time limit to apply for redetermination not in accord
ance with natural justice and could contravene Charter s. 7 —
Board, being court of record with exclusive jurisdiction over
matter, must look at circumstances of each case to determine
whether applicant might be deprived of Charter-protected
rights if not permitted to apply for redetermination and, if so,
whether fundamental justice requiring granting permission —
Applications allowed.
Constitutional law — Charter of Rights — Life, liberty and
security — Immigration Appeal Board's inflexible application
of time limit within which to apply for redetermination of
refugee status not in accordance with principles of fundamen
tal justice and may lead to deprivation of life, liberty or
security, contrary to Charter s. 7 — Board must examine each
case to ensure refusal to extend time not violating Charter
rights or fundamental justice — S. 28 applications to set aside
Board's refusal to extend time allowed.
Judicial review — Applications to review — S. 28 applica
tions to set aside Immigration Appeal Board's refusal to
extend time to apply for redetermination of refugee status —
Inflexible application of time limit not in accordance with
principles of natural justice — Board must look at circum
stances of each case to ensure no Charter rights violated and to
determine whether fundamental justice requires granting per-
mission to apply for redetermination outside time fixed by law
— Applications allowed.
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.), s. 7.
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Immigration Act, 1976, S.C. 1976-77, c. 52, ss. 59(1),
65(1), 70(1).
Immigration Appeal Board Rules (Convention
Refugees), 1981, SOR/81-420, ss. 4, 9.
Immigration Regulations, 1978, SOR/78-172, s. 40(1)
(as am. by SOR/80-601, s. 4).
CASES JUDICIALLY CONSIDERED
APPLIED:
Singh et al. v. Minister of Employment and Immigra
tion, [1985] 1 S.C.R. 177.
NOT FOLLOWED:
Nandkishur v. Canada (Minister of Employment and
Immigration), A-322-85, Thurlow C.J., judgment dated
22/5/87, F.C.A., not reported.
COUNSEL:
Barbara L. Jackman for applicant.
Charlotte A. Bell, Q. C. and Marilyn Doering
for respondent.
SOLICITORS:
Jackman, Zambelli, Silcoff, Toronto, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment of
the Court delivered orally in English by
HUGESSEN J.A.: These applications, which were
argued together, seek to review and set aside two
decisions by which the former Immigration Appeal
Board refused to extend time for each of the
applicants to file applications for redetermination
of their claims to refugee status under subsection
70(1) of the Immigration Act, 1976 [S.C. 1976-
77, c. 52].'
While the formal orders of the Board simply
dismissed the applications for extension of time, it
is clear, from the reasons, that the Board was of
the view that it had no jurisdiction even to enter
tain the applications. In so far as that view is based
upon the text of the Act itself, above, and subsec
tion 40(1) of the Immigration Regulations, 1978
[as am. by SOR/80-601, s. 4], 2 it is clearly correct
and in accordance with this Court's jurisprudence.'
The powers of the Board under sections 4 and 9 of
the Immigration Appeal Board Rules (Convention
Refugees), 1981, 4 are not adequate to permit it to
' 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.
All references to the Act and the Regulations are to the texts
as they stood prior to the coming into force of the Revised
Statutes of Canada, 1985, and of the amendments effected by
the Statutes of Canada, 1988, chapters 35 and 36.
2 SOR/78-172, as amended.
40. (1) A person who claims to be a Convention refugee
and who has been informed in writing by the Minister
pursuant to subsection 45(5) of the Act that he is not a
Convention refugee may, within fifteen days after he is so
informed, make an application to the Board pursuant to
section 70 of the Act for a redetermination of his claim that
he is a Convention refugee by delivering such an application
in writing to an immigration officer of by filing it with the
Board.
3 See Nandkishur v. Canada (Minister of Employment and
Immigration), A-322-85, Thurlow C.J., judgment dated
22/5/87, F.C.A., not reported.
4 SOR/8l-420.
4. Where any matter arises during the course of any
proceeding before the Board not provided for by these Rules,
the Board may do all things that are necessary to enable the
Board effectually and completely to adjudicate on and settle
the question involved in any application before the Board.
9. (1) The Board may abridge a time prescribed by these
Rules or fixed by any order of the Board for doing any act or
taking any proceeding on such terms, if any, as seem just.
(2) The Board may enlarge a time fixed by any order of
the Board for doing any act on such terms, if any, as seem
just, and any such enlargement may be made by order of the
Board, although the application for the enlargement is not
made until after the expiration of the prescribed or fixed
time.
extend a time limit fixed by the Governor in
Council pursuant to the regulation-making power
conferred on him by the Act.
The applicants' principal argument goes beyond
the text of the immigration legislation itself, how
ever, and raises a Charter point of some interest. It
is now well settled that a claim to refugee status
may put in play rights which enjoy Charter-
protection.' Put briefly, the applicants' argument
is that a rigid and inflexible time limit within
which to apply for redetermination, with no possi
bility of extension no matter what the circum
stances, is not in accordance with the principles of
fundamental justice and may lead to a deprivation
of life, liberty or security of the person, contrary to
section 7 of the Charter [Canadian Charter of
Rights and Freedoms, being Part I of the Consti
tution Act, 1982, Schedule B, Canada Act, 1982,
1982, c. 11 (U.K.)]. 6
In our view, the argument is unanswerable.
Indeed, the only answer that counsel for the Minis
ter suggested was that the circumstances of this
case were such that it was, in fact, no breach of the
rules of fundamental justice to hold the applicants
to the consequences of their own deliberate
actions.
In the case of Bains (file A-332-88), the record
shows that the applicant escaped from detention in
April 1981, after his refugee claim had been
adversely determined by the Minister and before
he could apply for redetermination. He then lived
"underground" in deliberate and knowing violation
of Canadian immigration law. He was arrested
January 4, 1987, and his application for extension
of time was only filed April 24, 1987.
In the case of James (file A-333-88), the appli
cant learned of the Minister's unfavourable deci
sion in November 1984 and at that time made a
deliberate and conscious decision, with legal
5 See Singh et al. v. Minister of Employment and Immigra
tion, [1985] 1 S.C.R. 177.
6 The applicants also advanced an argument under section
15, but, quite apart from its highly problematical nature, it
seems to add nothing to the section 7 claim.
advice, not to apply for redetermination but rather
to pursue other avenues with a view to obtaining
landed status. He only made an application for
extension of time in May 1986, after those avenues
had failed him.
The difficulty with the argument advanced by
counsel for the Minister is that the board being of
the view that it had no jurisdiction to do so, never
examined the facts of either case. It may well be
that, in the end, the Board will agree with the
submission of counsel for the Minister and find
that the facts reveal no breach of the rules of
fundamental justice, but the duty of examining
and answering that question lies, at least in the
first instance, on the Board and not on this Court.
The Board is a court of record,' with "sole and
exclusive jurisdiction"' over a matter such as we
have here, namely, an application for redetermina-
tion of a refugee claim. Its powers and its jurisdic
tion must be read in the light of the Charter.
Hence it cannot simply refuse to entertain an
application of the type here in question; rather, it
must look at the particular circumstances of each
case to determine whether the applicant stands to
be deprived of a Charter-protected right if not
permitted to apply for redetermination, and, if so,
whether fundamental justice requires that he be
granted such permission.
The section 28 [R.S.C., 1985, c. F-7] applica
tions will be allowed, the decisions quashed and
the matters referred back to the Board for recon
sideration on the basis that the Board has jurisdic
tion to consider whether fundamental justice
requires that, in the circumstances, the applicants
be permitted to apply for redetermination of their
refugee claims outside the time fixed by law.
Immigration Act, 1976, subsection 65(1).
8 Immigration Act, 1976, subsection 59(1).
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.