A-1109-91
Minister of Employment and Immigration
(Applicant)
v.
Agnieszka Obstoj (Respondent)
INDEXED AS: CANADA (MINISTER OF EMPLOYMENT AND
IMMIGRATION) Y. OBSTO,/ (C.A.)
Court of Appeal, Pratte, Hugessen and Desjardins
JJ.A.—Montréal, March 18; Ottawa, May 11, 1992.
Immigration — Refugee status — Claimant permanently
injured in beating by Polish secret police — Credible basis tri
bunal finding no longer reason to fear persecution but con
cluding claim having credible basis as compelling reasons for
claimant refusing to avail self of protection of Poland —
Whether credible basis tribunal having jurisdiction to apply
Immigration Act, s. 2(3) — Statutory definition of "Convention
Refugee" considered — S. 2(3) giving refugee status on
humanitarian grounds to those having suffered such appalling
persecution should not be returned even if further persecution
not feared.
This was a section 28 application to set aside the decision of
an adjudicator and a member of the Refugee Division that the
respondent had a credible basis for her claim to refugee status.
The respondent, a Polish national, claimed refugee status
upon her arrival in Canada in February of 1988. On May 12,
1991, a credible basis panel composed of an adjudicator and a
member of the Refugee Division found that, in today's circum
stances, there was no realistic possibility of her being perse
cuted if she were to return to Poland. The tribunal nonetheless
went on to hold that there was a credible basis to her claim on
the grounds that she had compelling reasons, arising out of her
physical mistreatment during interrogation by the Polish police
in 1983, not to avail herself of the protection of Poland, as pro
vided in subsection 2(3) of the Immigration Act. The appellant
argues that a credible basis tribunal has no jurisdiction to apply
subsection 2(3) to a situation where there is currently no well-
founded fear of persecution.
Held (Pratte J.A. dissenting), the application should be dis
missed.
Per Hugessen J.A.: A statutory tribunal can deal only with
matters within its assigned jurisdiction. The Act, in subsection
69.1(5), contemplates that matters involving cessation of refu
gee status under subsection 2(2) may be raised at a hearing
before the Refugee Division. Those matters are therefore
within the jurisdiction of the Division as, necessarily, are mat
ters involving the exception to subsection 2(2) contained in
subsection 2(3). The duty of the adjudicator and the member of
the Refugee Division under subsection 46.01(6) is to determine
whether there is any credible evidence on which the Division
might find the claimant to be a refugee: they are thereby vested
with the capacity to hear evidence on any question which
might be relevant at a hearing before the Refugee Division,
including the question of compelling circumstances under sub
section 2(3). Paragraph (b) of the definition of Convention
Refugee would be redundant unless Parliament intended a con
sideration of the matters raised by subsections 2(2) and 2(3) to
be included in the consideration of whether a person meets
paragraph (a) of the definition. Subsection 2(3) was to be read
as requiring the recognition of refugee status on humanitarian
grounds in the case of those who have suffered such appalling
persecution that they ought not to be returned even though
there is no reason to fear further persecution.
Per Desjardins J.A.: A person who comes within the cessa
tion provisions of paragraphs (a) to (d) of subsection 2(2) can
not claim his fear is well-founded. By his own actions he has
ceased, under paragraph (b) of the definition, to be a refugee
and, simultaneously, does not meet the exigencies of paragraph
(a). Under paragraph 2(2)(e) it is external events in the home
country which remove the foundation for the fear. Subsection
2(2) would be redundant to the requirements of the definition
were it not for subsection (3), which can exclude the applica
tion of paragraph (2)(e). To hold that, even though the claimant
had not ceased to be a refugee under subsection 2(2), she no
longer qualified, because of the elimination of a basis for fear
ing persecution, under paragraph (a) of the definition would
deprive subsection 2(3) of effect, except only at an inquiry
brought to terminate refugee status. The intention of Parlia
ment was, rather, that persons who have suffered atrocious
treatment be able to claim refugee status although no longer
meeting the requirements of paragraph 2(1)(a).
Per Pratte J.A. (dissenting): The question was whether a for
eigner who no longer has reason to fear persecution in his
homeland but wishes not to return because of persecution in
the past can be determined to be a Convention Refugee. In
1988, paragraph (b) was added to the definition of Convention
Refugee to make it clear that a refugee status claimant had to
fear, at the time his claim is considered, persecution in his
homeland. Parliament's intention was to stress that the facts
mentioned in subsection 2(2) would result in loss of refugee
status previously recognized and would also bar recognition as
a Convention Refugee. The credible basis tribunal erred in
assuming that one who satisfies paragraph (b) can be deter
mined to be a refugee while not meeting the conditions set out
in paragraph (a). As the respondent no longer had reason to
fear persecution, she could not meet the requirements of the
definition.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Immigration Act, R.S.C., 1985, c. 1-2, ss. 2(1) (as am. by
R.S.C., 1985 (4th Supp.), c. 28, s. 1), (2) (as am. idem),
(3) (as am. idem), 46.01 (as enacted idem, s. 14),
46.02(2) (as enacted idem), 67(1) (as am. idem, s. 18),
69.1(5) (as enacted idem), 69.2 (as enacted idem).
CASES JUDICIALLY CONSIDERED
REFERRED TO:
Leung v. Canada (Minister of Employment & Immigra
tion) (1990), 74 D.L.R. (4th) 313; 12 Imm. L.R. (2d) 43;
129 N.R. 391 (F.C.A.).
AUTHORS CITED
Grahl-Madsen, Atle The Status of Refugees in Interna
tional Law, Leyden: A. W. Sijthoff, 1966.
Hathaway, James C. The Law of Refugee Status, Toronto:
Butterworths, 1991.
Office of the United Nations High Commissioner for Ref
ugees. Handbook on Procedures and Criteria for
Determining Refugee Status under the 1951 Convention
and the /967 Protocol relating to the Status of Refu
gees, Geneva, September 1979.
APPLICATION to review and set aside a credible
basis finding by an adjudicator and a member of the
Refugee Division of the Immigration and Refugee
Board. Application dismissed.
COUNSEL:
Joanne Granger for applicant.
SOLICITOR:
Deputy Attorney General of Canada for appli
cant.
The following are the reasons for judgment ren
dered in English by
HUGESSEN J.A.: This is an application under section
28 of the Federal Court Act' to review and set aside a
decision by an adjudicator and a member of the Refu
gee Division by which they determined that the
respondent had a credible basis to her claim for refu
gee status. The application raises an important ques
tion regarding an aspect of the jurisdiction of both the
credible basis tribunal and the Refugee Division
itself. It involves the interpretation of some sections
of the Immigration Act 2 whose draftsmanship is less
than a model of clarity. The resolution of the case is
not made easier by reason of the respondent's failure
to appear or to be represented at the hearing.
The respondent is a citizen of Poland. She arrived
in Canada in February, 1988 and claimed refugee sta
tus. Her claim was, in due course, referred to a credi
ble basis tribunal composed of an adjudicator and a
member of the Refugee Division who, on May 12,
1991 gave the decision under attack. In that decision
the members of the tribunal found that, given the pre
sent day changed circumstances in the respondent's
country of origin, there was no realistic possibility of
her suffering persecution if she were returned to it.
The essence of the decision is found in the following
passages:
Having carefully read the documents presented by the Min
ister's Representative, we do not agree with your assessment of
the current political situation in Poland. Our evaluation of the
documentary evidence indicates that while there continue to be
many problems in Poland, the state apparatus is demonstrating
a clear move toward full democracy, a process which will take
time to complete and refine. Therefore, we do not find credible
your generally expressed fear concerning the instability and
possible political repercussions for you stemming from the
current situation in Poland.
However, in view of the evidence of your having been
beaten by Polish secret police, during an interrogation to which
you were convoked, which resulted in lasting injury to your
kidneys, we refer to section 2, sub 3 of the Immigration Act of
Canada, in concluding that there are, in your case, compelling
reasons for your refusing to avail yourself of the protection of
Poland.
R.S.C., 1985, c. F-7.
2 R.S.C., 1985, c. 1-2.
We conclude that your claim has a credible basis. Conse
quently, your claim will be referred for a full hearing before
the Refugee Division.
Briefly put, it is the applicant's position that the
credible basis tribunal had no jurisdiction to apply the
provisions of subsection 2(3) of the Immigration Act
[as am. by R.S.C., 1985 (4th Supp.), c. 28 s. 1]. That
subsection must be read together with the preceding
subsection 2(2) [as am. idem]:
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 pro
tection 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, ceased to exist.
(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.
Clearly, subsections 2(2) and 2(3) refer to the ces
sation or loss of refugee status, that is to say to the
situation envisaged in section 69.2 [as enacted idem,
s. 18] of the Act:
69.2 (1) The Minister may make an application to the Refu
gee Division for a determination whether any person who was
determined under this Act or the regulations to be a Conven
tion refugee has ceased to be a Convention refugee.
(2) The Minister may, with leave of the Chairman, make an
application to the Refugee Division to reconsider and vacate
any determination under this Act or the regulations that a per
son is a Convention refugee on the ground that the determina
tion was obtained by fraudulent means or misrepresentation,
suppression or concealment of any material fact, whether exer
cised or made by that person or any other person.
(3) An application to the Chairman for leave to apply to the
Refugee Division under subsection (2) shall be made ex parte
and in writing and the Chairman may grant that leave if the
Chairman is satisfied that evidence exists that, if it had been
known to the Refugee Division, could have resulted in a differ
ent determination.
(4) An application to the Refugee Division under this section
shall be instituted by filing, in the manner and form prescribed
by the rules of the board, a notice of application with the Refu
gee Division.
(5) Where a notice of application is filed with the Refugee
Division pursuant to subsection (4), the Minister shall forth
with send a copy of the notice to the person who is the subject
of the application.
By its terms this provision can only apply to a per
son "who was determined ... to be a Convention
refugee", that is to say after there has been an initial
recognition of refugee status by the Refugee Divi
sion; it logically cannot come into play at the credible
basis hearing which necessarily must be prior to any
such recognition.
In addition, since subsection 67(1) 3 [as am. idem]
gives exclusive jurisdiction over such questions to the
Refugee Division, it follows, in the applicant's sub
mission, that the credible basis tribunal can have no
authority to deal with the question of cessation at all,
or even to consider its possible application.
I would note in passing that it is a logical conse
quence, if the applicant's argument is correct, that not
only is the credible basis tribunal without jurisdiction
in questions of cessation of refugee status, but the
same must also he true of the Refugee Division itself
when it is sitting to determine an initial claim to refu
gee status under section 69.1 [as enacted idem].
After giving the matter the most careful considera
tion of which I am capable, I have come to the con
clusion that the application must fail.
The jurisdiction of the credible basis tribunal is set
out in subsection 46.01(6) [as enacted idem, s. 14]:
3 67. (1) The Refugee Division has, in respect of proceed
ings under sections 69.1 and 69.2, sole and exclusive jurisdic
tion to hear and determine all questions of law and fact, includ
ing questions of jurisdiction.
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
(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 evi
dence 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.
Briefly stated, the duty of the credible basis tribu
nal is to determine if there is any credible or trust
worthy evidence on which the Refugee Division
might determine the claimant to be a refugee. If
either or both members of the tribunal make such a
determination in the claimant's favour, subsection
46.02(2) 4 [as enacted idem] requires them to refer the
matter to the Refugee Division which is then empow
ered by the terms of section 69.1 to conduct a hearing
into the claim.
Clearly, the effect of these provisions is to vest the
credible basis tribunal with jurisdiction to hear evi
dence on any question which might be relevant to a
hearing conducted by the Refugee Division under the
terms of section 69.1.
4 46.02...
(2) Where either the adjudicator or the member of the
Refugee Division or both determine that the claimant is eli
gible to have the claim determined by the Refugee Division
and either or both of them determine that the claimant has a
credible basis for the claim, they shall give their decision
and the reasons therefor as soon as possible after making the
determinations and in the presence of the claimant wherever
practicable and shall forthwith refer the claim to the Refugee
Division, in the manner and form prescribed by the rules of
the Board, and, where the matter is before an inquiry, the
adjudicator shall take the appropriate action under subsec
tion 32(1), (3) or (4) or section 32.1 with respect to the
claimant.
Subsection 69.1(5) reads as follows:
69.1....
(5) At the hearing into a claim, the Refugee Division
(a) shall afford the claimant a reasonable opportunity to pre
sent evidence, cross-examine witnesses and make represen
tations; and
(b) shall afford the Minister a reasonable opportunity to pre
sent evidence and, if the Minister notifies the Refugee Divi
sion that the Minister is of the opinion that matters involv
ing 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.
In my view, the terms of paragraph 69.1(5)(b)
make it abundantly clear that "matters involving"
subsection 2(2) may be "raised" at a hearing con
ducted under section 69.1. 5 We are dealing here with
a statutory tribunal and the only matters that can he
raised at its hearings are those that are within its
jurisdiction. There can be no doubt in my mind that it
matters involving subsection 2(2) are within the juris
diction of the Refugee Division on a hearing con
ducted under section 69.1, as they must be, matters
involving subsection 2(3), being the exception to par
agraph 2(2)(e), are equally within such jurisdiction.
It follows, in my view, that since the Refugee
Division, when conducting a hearing into a claim to
refugee status, may hear evidence and consider ques
tions raised by subsection 2(3), the credible basis tri
bunal, when deciding whether or not there is credible
or trustworthy evidence on which the Refugee Divi
sion might find in the claimant's favour, is likewise
so empowered.
I am strengthened in this conclusion by the fact
that it serves to illuminate and explain what would
otherwise be an incomprehensible tautology in the
definition of the term "Convention refugee" in sub
section 2(1) [as am. idem, s. 1]:
"Convention Refugee" means any person who
5 l note that the French text of 69.1 (5)(b) points if anything
even more strongly in this direction than the English text.
(a) by reason of a well-founded fear of persecution for rea
sons of race, religion, nationality, membership in a particu
lar 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 him
self 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 . ....
At first glance, paragraph (b) of this definition
appears to be quite useless and indeed redundant. If a
person meets the requirements of paragraph (a), all of
which are stated in the present tense, clearly that per
son does not come within paragraph (b), which by its
reference to subsection 2(2) envisages five distinct
situations any one of which is clearly the negation of
one of the elements of the definition in paragraph (a).
By the same token, anyone failing to meet the
requirements of paragraph (b) would equally fail to
meet the requirements of paragraph (a).
The solution to the conundrum, as it seems to me,
must lie in the fact the Parliament intended a consid
eration of the matters raised in subsection 2(2) (and
necessarily of subsection 2(3) as well) to be included
in the consideration of whether or not a person meets
the requirements of paragraph (a) of the definition.
Such an intention is consistent with the placing of
subsections 2(2) and 2(3) in the definition section of
the Act rather than, as logic would otherwise suggest,
in or adjacent to section 69.2 dealing with cessation.
To put the matter another way, subsections 2(2)
and 2(3), while at first blush they appear to deal only
with the loss of a refugee status which has already
been acquired, have in fact been extended by Parlia
ment and incorporated into the definition by means
of paragraph (b), so that their consideration forms
part of the determination process itself.
There can be no doubt that in so doing Parliament
has gone beyond what is required by the terms of the
Convention. Article 1 C(5) of that document, clearly
the inspiration for subsection 2(3) of our Act, in its
terms applies only to so-called "statutory" refugees,
i.e. those whose status as such had been recognized
prior to the date of the Convention. On any reading
of subsection 2(3) it must extend to anyone who has
been recognized as a refugee at any time, even long
after the date of the Convention. It is hardly surpris
ing, therefore, that it should also be read as requiring
Canadian authorities to give recognition of refugee
status on humanitarian grounds to this special and
limited category of persons, i.e. those who have suf
fered such appalling persecution that their experience
alone is a compelling reason not to return them, even
though they may no longer have any reason to fear
further persecution.
The exceptional circumstances envisaged by sub
section 2(3) must surely apply to only a tiny minority
of present day claimants. I can think of no reason of
principle, and counsel could suggest none, why the
success or failure of claims by such persons should
depend upon the purely fortuitous circumstance of
whether they obtained recognition as a refugee before
or after conditions had changed in their country of
origin. Indeed an interpretation which produced such
a result would appear to me to he both repugnant and
irrational. It would also, as noted, render paragraph
69.1(5)(b) quite incomprehensible.
Accordingly, I conclude that the first stage tribunal
is entitled to hear and consider evidence of the mat
ters raised by subsection 2(3) and, if it finds such evi
dence credible and trustworthy, to form the opinion
that the Refugee Division might, based on such evi
dence and all other relevant circumstances, determine
the claimant to be a refugee. 6
I would dismiss the application.
6 The tribunal in the present case, in the passage cited above,
has used unfortunate and inappropriate wording: "there
are ... compelling reasons". Nothing turns on the error.
* * *
The following is the English version of the reasons
for judgment rendered by
DESJARDINS J.A.: The definition of a "Convention
refugee" contained in paragraph 2(1)(a) of the Immi
gration Act 7 is in the following form:
2. (1) In this Act,
"Convention refugee" means any person who
(a) by reason of a well-founded fear....
(i)...
(ii) ... and
(b) has not ceased to be a Convention refugee by virtue of
subsection (2),
but does not include ....
Contrary to the position taken by the applicant, I
am of the view that paragraph 2(1)(b), added in the
1988 amendments, is an integral part of the definition
of a Convention refugee and that the claimant must
meet the requirements of both paragraphs at the time
the status is claimed and continuously thereafter,
even after the status has been recognized. Further,
there is a constant relationship between the cases
mentioned in paragraph 2(1)(b) and the requirement
of a well-founded fear mentioned in paragraph
2(1)(a) of the definition.
Subsection (2), referred to in paragraph 2(1)(b) of
the definition, reads as follows:
(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 pro
tection 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.
7 R.S.C., 1985, c. I-2 [as am. by R.S.C., 1985 (4th Supp.), c.
28J.
Each of the first four paragraphs of subsection (2),
namely paragraphs (a), (b), (c) and (d), presupposes
the case of an individual who does something contra
dictory to the idea of a Convention refugee, such as
voluntarily again claiming the protection of the coun
try of his nationality; voluntarily recovering such
nationality; acquiring a new nationality and enjoying
the protection of the country of his new nationality;
or voluntarily returning to settle in the country he has
left or outside of which he remained for fear of perse
cution. An individual could then never claim that his
fear was well-founded. He has clearly ceased to be a
Convention refugee, first because he no longer meets
the requirements of paragraph 2(1)(b), and at the
same time, does not meet the requirements of para
graph 2(1 )(a).
In the case of paragraph 2(2)(e), there is no longer
any question of an act done by the claimant which
conflicts with the idea of a well-founded fear. What
is at issue is changes which have occurred in the
country of origin so that the reasons for his fear have
ceased. The claimant no longer meets the require
ments of paragraph 2(1 )(b) of the definition. His fear
is clearly no longer valid under paragraph 2(1)(a).
This is what makes subsection (2) redundant in
terms of paragraph 2(1)(a) of the definition.
This is when subsection (3) of section 2, which is
an exception to paragraph 2(2)(e), applies.
(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. [Emphasis added.]
Subsection (3) creates a justification which
excludes the application of paragraph 2(2)(e). Does
this result have an impact on paragraph 2(1)(a) of the
definition? Can it be said that, although a person may
satisfy paragraph 2(1)(b), he does not meet the
requirements of paragraph 2(1)(a) because his fear of
persecution is no longer objectively valid as a result
of changes taking place in his country?
To answer this question in the affirmative without
more would amount to saying that a claimant could
never rely on subsection 2(3) of the Act at the first
level, and so could not do so at the second level in an
inquiry made pursuant to section 69.1. Subsection
2(3) could in that case only be relied on before the
Refugee Division in an inquiry to terminate refugee
status under subsection 69.2(2) of the Act.
I think such a result would be contrary to the inten
tion of Parliament.
According to the explanatory notes accompanying
Bill C-55, amending the Immigration Act, 1976, 8
subsections 2(2) and (3) were added to the definition
of a Convention refugee in order to "bring the defini
tion into conformity with the United Nations Con
vention relating to the Status of Refugees". The
intention was therefore undoubtedly to enable "statu-
tory" refugees 9 to claim refugee status. Such persons
clearly do not meet the requirements of paragraph
2(1)(a). As it did not add the limitations mentioned in
paragraph 1 of Section A of Article One of the Con
vention, the Parliament of Canada necessarily had to
extend the application of the Convention to all per
sons in so-called special circumstances.
ë Second Session, Thirty-Third Parliament, 35-36 Eliz. II,
1986-87, House of Commons of Canada, First Reading on
May 5, 1987.
9 Those mentioned in paragraph 1 of Section A of Article
One of the Convention, which states:
A. For the purposes of the present Convention, the term
"refugee" shall apply to any person who:
(1) Has been considered a refugee under the Arrange
ments of 12 May 1926 and 30 June 1928 or under the
Conventions of 28 October 1933 and 10 February 1938,
the Protocol of 14 September 1939 or the Constitution
of the International Refugee Organization ....
In the Handbook on Procedures and Criteria for Determining
Refugee Status under the 1951 Convention and the 1967 Proto
col relating to the Status of Refugees, Office of the United
Nations High Commissioner for Refugees, Geneva, September
1979, at p. 31, there is the following explanation:
The exception ... reflects a more general humanitarian
principle, which could also be applied to refugees other
than statutory refugees. It is frequently recognized that a
person who—or whose family—has suffered under atro
cious forms of persecution should not be expected to
repatriate. Even though there may have been a change of
régime in his country, this may not always produce a
complete change in the attitude of the population, nor, in
view of his past experiences, in the mind of the refugee.
Parliament's intent was to recognize that such per
sons could claim refugee status despite not meeting
the requirements of paragraph 2(1)(a). Their claim
could only be made at the first level. The Act accord
ingly recognizes that if there are special circum
stances a claim is valid even though there is no
longer an objective, basis for the fear of persecution
itself.
I cannot otherwise explain the drafting problem
that is apparent in the definition.
The rest is a question of evidence that each deci-
sion-making level, the first and second, must apply
according to the jurisdiction conferred on 4. 10
The tribunal in the case at bar has made its deci
sion. It is up to the Minister, if he wishes to challenge
this decision before the Refugee Division, to follow
procedure laid down in subsection 69.1(5).
I would dispose of this case as Hugessen J.A. sug
gests.
* * *
The following are the reasons for judgment ren
dered in English by
PRATTE J.A. (dissenting): This section 28 applica
tion raises but one question: under the Immigration
Act, may a foreigner, who has no longer any ground
to fear persecution in his country but who refuses to
return there by reason of the persecution that he suf
fered in the past, be determined to be a Convention
refugee?
In order to understand that question, one must have
in mind the definition of the phrase "Convention ref
ugee" found in subsection 2(1) of the Immigration
Act as well as the provisions concerning the loss of
Convention refugee status contained in subsections
2(2) and (3):
2. (1) In this Act,
"Convention refugee" means any person who
10 Leung v. Canada (Minister of Employment & Inunigra-
tion) (1990), 74 D.L.R. (4th) 313 (F.C.A.).
(a) by reason of a well-founded fear of persecution for rea
sons of race, religion, nationality, membership in a particu
lar 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 him
self 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; ... .
(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 pro
tection 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.
(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.
The respondent is a citizen of Poland. She left her
country in 1986, lived in England and finally came to
Canada on February 26, 1988.. She immediately indi
cated her intention to claim Convention refugee sta
tus but it is only on April 12, 1991, that she appeared
before the adjudicator and the member of the Refu
gee Division who were to determine whether she had
a credible basis for her claim. At the conclusion of
their inquiry, the adjudicator and the member of the
Refugee Division determined that there was no credi
ble evidence showing that the respondent might be
persecuted if she were to return to Poland. They nev
ertheless decided that she had a credible basis for her
claim because, as the evidence disclosed that she had
been persecuted by the Polish authorities before
1985, it was not unreasonable to think that this perse
cution had been serious enough to justify her to
refuse to avail herself of the protection of her coun
try. On that point, the adjudicator and the member of
the Refugee Division expressed themselves as fol
lows:
However, in view of the evidence of your having been
beaten by Polish secret police, during an interrogation to which
you were convoked, which resulted in lasting injury to your
kidneys, we refer to section 2, sub 3 of the Immigration Act of
Canada, in concluding that there are, in your case, compelling
reasons for your refusing to avail yourself of the protection of
Poland. The Federal Court of Appeal decision in Paszkowska
(F.C.A., A-724-90, 16 April 1991) is clear authority for the
jurisdiction of the first level tribunal to examine change of cir
cumstances in the claimant's country of origin. Hugessen, J.A.,
speaking for the court, points to subsection 2, 3 of the Act, in
mentioning that the special circumstances referred to in that
section are an exception to the general rule that credible basis
cannot be found where it would no longer be reasonable for the
claimant to fear persecution there. The brutality of the Polish
secret police which you experienced in 1983 constitutes, in our
view, such "special circumstances".
We conclude that your claim has a credible basis. Conse
quently, your claim will be referred for a full hearing before
the Refugee Division.
The adjudicator and the member of the Refugee
Division had to determine, pursuant to subsection
46.01(6), whether there was any credible basis on
which the Refugee Division might determine the
respondent to be a Convention refugee. In order to
determine, as they did, that the respondent had a
credible basis for her claim, they obviously had to
form the opinion that the evidence before them might
allow the Refugee Division to find that the respon
dent answered the definition of the phrase Conven
tion refugee found in subsection 2(1). As I under
stand their decision, they thought that the respondent
might meet the conditions prescribed in paragraph (a)
of the definition because, when she arrived in
Canada, she had reasonable grounds for fearing to be
persecuted if she returned to Poland, and that she
might also meet the conditions prescribed in para
graph (b) because it was not unreasonable to think
that, in the circumstances, she might invoke subsec
tion 2(3) and claim that, since her arrival here, she
had never ceased to be a refugee.
Counsel for the applicant attacked that decision on
the main ground that, in her view, contrary to what
the adjudicator and the member of the Refugee Divi
sion had assumed, paragraph (b) of the definition and
subsections 2(2) and (3) refer only to persons that
have been determined to be Convention refugees and
subsequently lost that status. As it is common ground
that the respondent was never determined to be a
Convention refugee, it follows, according to coun
sel's argument, that the respondent could not take
advantage of subsection 2(3).
This reasoning is, in my view, based on a wrong
premise, namely, that paragraph (b) of the definition
and subsections 2(2) and (3) apply only to those who
have been determined to be Convention refugees. If it
were so, paragraph (b) of the definition would make
no sense at all. The sole purpose of the definition is
to enable the authorities to dispose of Convention ref
ugee claims. But, clearly, a person cannot have the
status of recognized Convention refugee before hav
ing been recognized as a refugee; moreover, under
subsection 46.01(1), a person who has been deter
mined to be a Convention refugee is not eligible to
make a refugee claim.
In fact, if paragraph (b) was added to the definition
of Convention refugee in 1988, it is merely because it
was thought useful to insist on the idea already
expressed in paragraph (a) that a person must, in
order to be recognized as a refugee, have, at the time
his claim is considered, good grounds to fear persecu
tion in his country. Knowing that the existence of
such reasonable grounds must necessarily be inferred
from past events, Parliament wished to stress, by
adding paragraph (b) to the definition, that the facts
mentioned in subsection 2(2), not only made a recog
nized refugee lose his status, but were also a bar to
the recognition of a person as a Convention refu
gee. t t
Grahl-Madsen expressed the same idea in the following
terms:
"If a person falls under a cessation clause before he has
been formally recognized as a refugee, this has been consi
dered a bar to his recognition ... ". Grahl-Madsen, Atle, The
Status of Refugees in International Law, at p. 370 (1966),
cited by James C. Hathaway, The Law of Refugee Status, at
p. 190, footnote 10.
This is not to say that the decision under attack is
above criticism. It is indeed based on a very serious
error. Indeed, the decision assumes that a person who
meets the conditions provided for in paragraph (b) of
the definition may be determined to be a refugee
even if he does not meet the conditions prescribed in
paragraph (a). A mere reading of the definition con
tained in subsection 2(1) shows that, in order to be a
Convention refugee, one must meet all the conditions
provided for in that definition. As' it was obvious to
the adjudicator and the Refugee Division member
that the respondent did not meet the conditions pre
scribed in paragraph (a) of the definition since she
manifestly no longer had any reason to fear persecu
tion, it followed, in my view, that she might not be
found to meet the requirements of the definition even
though she met the conditions prescribed in para
graph (b).
I would allow the application, set aside the deci
sion under attack and refer the matter hack in order
that it be decided on the basis that, under the Immi
gration Act, a foreigner who no longer has any reason
to fear persecution in his country may not be deter
mined to be a Convention refugee for the sole reason
that the persecution that he suffered in the past in his
country justifies his refusal to avail himself of the
protection of that country.
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.