A-336-89
Avtar Singh Longia (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: LONGIA V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION) (CA.)
Court of Appeal, Marceau, Stone and MacGuigan
JJ.A.—Vancouver, April 4; Ottawa, May 16,
1990.
Immigration — Immigration Appeal Board jurisdiction
S. 28 application to review Immigration Appeal Board deci
sion it lacked jurisdiction to reopen application for redetermi-
nation of claim to Convention refugee status having denied it
— Case law unclear on point — Applicant, citizen of India,
seeking to introduce evidence, not presented at redetermination
hearing, he had been member of International Sikh Youth
Federation and warrants for his arrest issued in India for
sedition, criminal conspiracy and terrorist activity — Appli
cant alleging omitted to reveal membership in ISYF as feared
repercussions upon family in India — Application dismissed
— Immigration Appeal Board without jurisdiction to reopen
redetermination application to hear evidence of new facts.
Judicial review — Applications to review — Immigration
Appeal Board decision it lacked jurisdiction to reopen
application for redetermination of Convention refugee status
— Board without jurisdiction to reopen redetermination
application to hear evidence of new facts — No continuing
jurisdiction as statutory authority adjudicative — Where no
breach of natural justice, Board without jurisdiction to reopen
to allow introduction of evidence applicant had failed to
adduce — Hearing not travesty of justice as duress invoked
neither direct nor immediate.
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].
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Immigration Act, 1976, S.C. 1976-77, c. 52, ss.
46.01(1)(c) (as enacted by R.S.C., 1985 (4th Supp.), c.
28, s. 14), 70, 72 (as am. by S.C. 1984, c. 21, s. 81;
1987, c. 37, s. 9).
Immigration Appeal Board Act, S.C. 1966-67, c. 90,
s. 15.
CASES JUDICIALLY CONSIDERED
APPLIED:
Singh v. Canada (Minister of Employment and Immi
gration) (1988), 6 Imm. L.R. (2d) 10 (F.C.A.); Canada
(Minister of Employment and Immigration) v. Nabiye,
[1989] 3 F.C. 424; (1989), 102 N.R. 390 (C.A.); Grillas
v. Minister of Manpower and Immigration, [1972]
S.C.R. 577; (1971), 23 D.L.R. (3d) 1.
DISTINGUISHED:
Kaur v. Canada (Minister of Employment and Immigra
tion), [1990] 2 F.C. 209; (1989), 64 D.L.R. (4th) 317;
104 N.R. 50 (C.A.).
REFERRED TO:
Sandhu v. Canada (Min. of Employment & Immigra
tion) (1987), 26 Admin. L.R. 1; 1 Imm. L.R. (2d) 759;
78 N.R. 236 (F.C.A.); Bains v. Canada (Minister of
Employment and Immigration), [1989] 3 F.C. 487;
(1989), 61 D.L.R. (4th) 573 (C.A.); Gill v. Canada
(Minister of Employment and Immigration), [1987] 2
F.C. 425; (1987), 27 Admin. L.R. 257; 27 C.R.R. 235; 80
N.R. 1 (C.A.).
COUNSEL:
W. J. Macintosh for applicant.
Mary A. Humphries for respondent.
SOLICITORS:
Macintosh, Mair, Riecken & Sherman, Van-
couver, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
MARCEAU J.A.: This application under section
28 of the Federal Court Act [R.S.C., 1985, c. F-7]
raises once again the difficult question of whether
the Immigration Appeal Board has jurisdiction to
reopen, rehear or reconsider a claim to Convention
refugee status after having denied it. The judg
ment of the Supreme Court in Grillas v. Minister
of Manpower and Immigration, [1972] S.C.R.
577, and those of this Court in Gill v. Canada
(Minister of Employment and Immigration),
[1987] 2 F.C. 425 (C.A.); Singh v. Canada (Min-
ister of Employment and Immigration) (1988), 6
Imm. L.R. (2d) 10 (F.C.A.); and Canada (Minis-
ter of Employment and Immigration) v. Nabiye,
[1989] 3 F.C. 424 (C.A.), have already had to
deal with the question, but the answer to it is
apparently still unclear. The review of the facts of
the case now before us was made by the applicant
in his factum with the approval of the respondent;
I take the liberty to reproduce it verbatim:
1. The Applicant is a citizen of the Republic of India. On
September 30th, 1986 he became the subject of an immigration
inquiry. It was determined that he was a person described in
paragraph 27(2)(f) of the Immigration Act, 1976 ("the 1976
Act"). The inquiry was adjourned pursuant to section 45 of the
1976 Act in order for the Applicant to make a claim to be a
Convention Refugee.
2. The Applicant subsequently made a Statement under Oath
on November 3rd, 1986. The Minister determined that the
Applicant was not a Convention Refugee. On September 9th,
1987 the Applicant applied to the Immigration Appeal Board
("the Board") for a redetermination of his refugee claim. The
Board heard the redetermination application on November
24th, 1987 and determined that the Applicant was not a
Convention Refugee.
3. On November 14th, 1988 the Applicant filed a Notice of
Motion with the Board to reopen his claim. The Applicant
sought to introduce further evidence not previously introduced
at the redetermination hearing in 1987. Specifically he sought
to introduce evidence that he had in fact been a member of the
International Sikh Youth Federation in 1985 and 1986.
4. The Notice of Motion was heard on March 21st, 1989. The
Applicant also sought on that date to introduce new evidence
which he had received subsequently to the filing of the Notice
of Motion in November, 1988. The evidence was new in that
the facts had arisen subsequent to the redetermination hearing
in November, 1987. Specifically, the Applicant sought to
introduce evidence that he had received information that war
rants were issued in India against the Applicant for his arrest
on charges including seditious activity, criminal conspiracy and
terrorist activity. The arrest warrants were dated December
2nd, 1987 and November 7th, 1988.
5. At the hearing of the Motion on March 21st, 1989 the
Minister argued that the Board had no jurisdiction to hear the
Motion. The Board agreed. The Board said that it was bound
by the Federal Court of Appeal in Singh v. M.E.I. (1988), 6
Imm. L.R. (2d) 10 (Fed. C.A.) and therefore the Board could
not reopen a redetermination hearing to deal with newly arisen
facts.
The applicant contends that the Board was
wrong in declining jurisdiction; he argues in effect
that the Board has the inherent jurisdiction to
reopen a hearing either to consider new facts or to
hear relevant evidence not adduced at the initial
hearing for good reason.
1. I have no hesitation in reasserting here what
this Court has already determined in Singh and
Nabiye (supra), namely that the Board does not
have jurisdiction to reopen an application for rede-
termination of refugee status which it has already
disposed of solely in order to hear evidence of new
facts.
Counsel for the applicant submits that the Singh
and Nabiye decisions were made without due
regard for the decision of the Supreme Court in
Grillas (supra). He makes the point that, contrary
to what appears to have been assumed in Nabiye,
Grillas was not concerned with the jurisdiction of
the Board under paragraph 15(1)(a) [Immigration
Appeal Board Act, S.C. 1966-67, c. 90], nor sub-
paragraph 15(1)(b)(ii) of the Act as it stood prior
to 1976, the first one applicable to permanent
residents, the other dealing with compassionate or
humanitarian considerations; Grillas was dealing
with a non-permanent resident who was alleging,
under subparagraph 15(1)(b)(ii), that his political
activities could cause him to suffer unusual hard
ship if the deportation order sending him back to
his country was executed. This point being made,
counsel comes to his main argument: if the deter
mination made in Grillas, namely that the juris
diction of the Board was a continuing one, had to
apply to the authority given to the Board by
section 72 [as am. by S.C. 1984, c. 21, s. 81; 1987,
c. 37, s. 9] of the 1976 Act [Immigration Act,
1976, S.C. 1976-77, c. 52], because this section
had simply carried forward the provisions of para
graph 15(1)(a) and subparagraph 15(1)(b)(ii) of
the previous Act, as this Court has found in
Sandhu v. Canada (Min. of Employment and
Immigration) (1987), 26 Admin. L.R. 1 (F.C.A.),
it should all the more apply to the jurisdiction of
the Board under section 70 which, concerned with
refugees, continued in a sense subparagraph
15(1)(b)(i) of the earlier Act. Moreover, adds
counsel, the determination that a person is a Con
vention refugee is one based on the likelihood of
events occurring in the future; it is not strictly an
adjudication on past events: it is only natural that
the process be an ongoing one.
Counsel is right in pointing out that, in writing
my reasons for judgment in Nabiye, I made a
mistake as to the paragraphs of the former section
15 which was involved in Grillas. But it is clear, on
reading the reasons of the judges, that the section
was viewed and taken as a whole and I will only
quote in that respect the comments that Abbott J.
made, at page 581 of the report, after having
reproduced the section:
This somewhat unusual section gives the Board broad discre
tionary powers to allow a person to remain in Canada who is
inadmissible under the Immigration Act. Before the section was
enacted, such power was vested solely in the executive branch
of Government.
Whether the discretion to be exercised by the Board under s.
15 be described as equitable, administrative or political, it is
not in the strict sense a judicial discretion, but it would appear
it should be exercised essentially upon humanitarian grounds.
That is really the point. The authority conferred
by this former section 15 was found to be continu
ing because it was not meant to be an adjudicative
one. And the authority conferred by section 72 of
the 1976 Act is of the same type. The jurisdiction
of the Board under section 70 with respect to a
claim to refugee status, however, is of another type
altogether, as it is wholly adjudicative. The politi
cal refugees have now a right to be recognized as
such, and the role of the Board is to adjudicate
upon that right. I disagree with the view that the
determination of the Board in that respect would
be an ongoing process. The well founded fear of
persecution alleged by the refugee has to be ascer
tained, for it to be given effect according to law, at
the moment his claim is adjudicated. It is true, of
course, that facts may change and political events
may occur which may lead to the conclusion that a
fear which was not well founded has become now
reasonable. But it is not by reopening the hearing
on the first claim that this can be verified, it is
only by allowing a second claim and proceeding to
consider it. Parliament has not provided for the
possibility of successive claims; indeed, in the new
Act, it has formally prohibited it (see paragraph
46.01(1)(c)' [as enacted by R.S.C., 1985 (4th
Which reads:
Supp.), c. 28, s. 14]) and it does not appear to me
that such prohibition—which is not concerned
with a mere question of procedure as in Bains v.
Canada (Minister of Employment and Immigra
tion), [1989] 3 F.C. 487 (C.A.), but a question of
substance—can be seen as a violation of rights
guaranteed by 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.) [R.S.C., 1985, Appendix II,
No. 44]]. Does this mean that the refugee is
devoid of any remedy? No, but the remedy would
not be one of right and it would be up to the
Executive branch of Government to grant it, as it
was prior to the enactment of section 15 of the
former Act as recalled by Abbott J. in the passage
of his reasons in Grillas that I quoted above.
Be that is it may, as determined in the Singh
and Nabiye decisions, the Board, in my view, has
no inherent or continuing jurisdiction to reopen a
redetermination hearing of an application for
refugee status.
2. The power of the Board to reopen a redeter-
mination hearing, not to consider new facts but to
allow the introduction of evidence that the appli
cant has failed to adduce cannot be so readily
discarded. Indeed, it is now firmly established, in
the jurisprudence of this Court, that if the hearing
of an application has not been held according to
the rules of natural justice, the Board may look at
its decision as a nullity and reconsider the matter
(see Gill v. Canada (Minister of Employment and
(Continued from previous page)
46.01 (1) A person who claims to be a Convention
refugee is not eligible to have the claim determined by the
Refugee Division if
. . .
(c) the claimant has, since last coming into Canada, been
determined
(i) by the Refugee Division, the Federal Court of
Appeal or the Supreme Court of Canada not to be a
Convention refugee or to have abandoned the claim, or
(ii) by an adjudicator and a member of the Refugee
Division as not being eligible to have the claim deter
mined by that Division or as not having a credible basis
for the claim;
Immigration), Singh and Nabiye, supra). On the
other hand, it was found in Kaur v. Canada (Min-
ister of Employment and Immigration), [1990] 2
F.C. 209 (C.A.), that an immigration inquiry, held
at a moment when the person concerned was under
the direct influence of a third party (her husband)
and not free to bring up facts as they were, could
be seen as having breached the rules of natural
justice, with the result that the decision that fol
lowed was a nullity under the Charter and the
adjudicator could reconsider his decision. Was not
the Board faced ,with a similar situation here in
view of the applicant's statement that he had
omitted to reveal his membership in the Interna
tional Sikh Youth Federation between 1985 and
1986 because of fear of repercussions against his
family in India? The Board has no comment on
the point, for the simple reason, I suppose, that it
was never faced with an allegation of breach of
natural justice. Nor are we, for that matter; it is
my approach to the case which led me to the
question. But my answer to it is clearly negative.
The duress invoked by the applicant is not of the
type which was in question in the Kaur case, i.e.
not a direct and immediate one; it certainly cannot
be seen as having affected the hearing to the
extent of making it a travesty of justice. The
Board, on the sole allegation contained in the
affidavit filed in support of the application to
reopen the hearing, could not come to the conclu
sion that its initial decision could be regarded as a
nullity. It follows that the Board had no more
jurisdiction to reopen the hearing to allow the
applicant to introduce the particular information
he wanted to introduce than to allow him to bring
evidence of new facts.
The refusal of the Board to reopen the hearing
on the ground that it did not have jurisdiction to
do so was, in my view, well founded. I would
dismiss this section 28 application.
STONE J.A.: I agree.
MACGUIGAN J.A.: I agree.
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.