Judgments

[1993] 2 F.C. 492

A-811-91

Siavash Vatanabadi (Applicant)

v.

The Minister of Employment and Immigration (Respondent)

Indexed as: Vatanabadi v. Canada (Minister of Employment and Immigration) (C.A.)

Court of Appeal, Hugessen, MacGuigan and Létourneau JJ.A.—Montréal, April 1; Ottawa, April 8, 1993.

Citizenship and Immigration — Status in Canada — Convention refugees — Iranian applicant granted refugee status, international travel documents by Sweden — Now claiming Convention refugee status against Iran and Sweden — Adjudicator and Refugee Division member holding not within s. 46.01(1)(a), eligible to have claim decided by Refugee Division — Upon realizing overlooking s. 46.01(2), deciding to “revisit” eligibility question, conduct inquiry into credible basis of claim against Sweden — Not functus officio — No final “decision”, merely “determination”.

Judicial review — Adjudicator and Refugee Division member determining applicant eligible to have claim dealt with by Refugee Division — Revisiting eligibility question when realizing error in overlooking statutory provision — Whether functus officio — Applicant’s argument positing division of inquiry into separate, watertight compartments consecutive in time one to the other — Approach not that mandated by S.C.C. as to functus officio in case of administrative tribunals — Policy favouring finality of proceedings — Functus officio principle to be given flexible application to tribunals whose decisions appealable on point of law only.

This was an application to set aside the decision of an Adjudicator and Refugee Division member (the tribunal) that the applicant lacked a credible basis to his refugee claim. In 1987 the applicant, an Iranian citizen, left Iran and was granted refugee status in Sweden which also issued international travel documents to him. In January 1990 he came to Canada and claimed refugee status. Immigration Act, paragraph 46.01(1)(a) provided that a person was not eligible to have a Convention refugee claim determined by the Refugee Division if he was recognized by any other country as a Convention refugee and had been issued a valid and subsisting travel document by that country. The tribunal held that since the applicant was making a refugee claim against Sweden as well as Iran, he did not fall within paragraph 46.01(1)(a) and was therefore eligible to have his claim decided by the Refugee Division. Shortly thereafter subsection 46.01(2) was brought to the tribunal’s attention. That subsection provides that a person is eligible to have a claim determined by the Refugee Division if he has a credible basis for a well-founded fear of persecution in the country which recognized him as a Convention refugee. The tribunal decided to “revisit” the question of eligibility and to conduct an inquiry as to whether or not there was a credible basis to the applicant’s claim to have a well-founded fear of persecution in Sweden. Ultimately the tribunal decided that the claimant did not have a credible basis and did not meet the eligibility criteria. Paragraph 46(1)(b) provided that the adjudicator and member of the Refugee Division shall determine whether the claimant was eligible to have the claim determined by the Refugee Division; paragraph 46(1)(c) provided that if the claimant was determined to be so eligible, his credible basis shall be determined. The applicant alleged that the tribunal was functus officio. Having determined the applicant to be eligible, it was not free to “revisit” the matter and was obliged to continue with the next stage of its inquiry, namely the credible basis of the claim against Iran.

Held, the application should be dismissed.

The applicant’s argument seemed to posit a division of the inquiry mandated by paragraphs 46(1)(b) and (c) into separate, watertight compartments which are consecutive in time one to the other. Subsection 46(1) does not require any temporal sequence such as occurs in the criminal trial process. The legislation quite strongly suggests that eligibility and access to a Refugee Division hearing by virtue of having a credible basis to the claim are the subject of a single decision. Section 46.02 indicates that the adjudicator and the member of the Refugee Division are each called upon to make “determinations” with respect to both eligibility and credible basis, but that those “determinations” are then incorporated into a single “decision” which marks the conclusion of their inquiry. The tribunal was not functus officio and had not exhausted its mandate until that decision had been reached.

The Supreme Court of Canada has stated that the general rule that the final decision of an administrative tribunal cannot be revisited because the tribunal has changed its mind was based on the policy ground which favours finality of proceedings, rather than the rule which was developed with respect to the formal judgments of a court whose decision was subject to full appeal. Application of the rule must therefore be more flexible with respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. A policy which favours finality of proceedings would require that the tribunal, having only just started its inquiry, be allowed to correct its obvious mistake. Such policy would not be advanced by insisting on continuation down a path which all concerned knew and admitted was fatally flawed. The tribunal’s ultimate decision was subject to review only on a point of law and, since it was manifest that such a decision would be wrong in law if the error were not at once corrected, a flexible and pragmatic approach required that such correction be effected forthwith. The applicant would not suffer any prejudice as a result of the tribunal recognizing its mistake and recommencing its inquiry.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Federal Court Act, R.S.C., 1985, c. F-7, s. 28 (as am. by S.C. 1990, c. 8, s. 8).

Immigration Act, R.S.C., 1985, c. I-2, ss. 2(1) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 1), 46(1) (as am. idem), 46.01 (as enacted idem, s. 14), 46.02 (as enacted idem).

CASES JUDICIALLY CONSIDERED

APPLIED:

Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848; (1989), 101 A.R. 321; 62 D.L.R. (4th) 577; [1989] 6 W.W.R. 521; 70 Alta. L.R. (2d) 193; 40 Admin. L.R. 128; 36 C.L.R. 1; 99 N.R. 277.

APPLICATION to set aside, on the ground that Adjudicator and Refugee Division member were functus officio, the decision that the applicant lacked a credible basis to his refugee claim. Application dismissed.

COUNSEL:

Noël Saint-Pierre for applicant.

Sylvie Martin for respondent.

SOLICITORS:

Saint-Pierre & Associates, Montréal, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment rendered in English by

Hugessen, J.A.: The purpose of refugee law being to provide protection against persecution in their home countries to those in need of it, claims to refugee status can, as a rule, only be asserted against the claimant’s country of nationality or, for persons without nationality, of habitual residence. This is reflected in the definition of Convention refugee in the Immigration Act:[1]

“Convention refugee” means any person who

(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular 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 himself 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; [Emphasis added.]

As a consequence, where a person has successfully obtained safe haven in another country, that person is disqualified from making any further claims to refugee status; “country shopping” is discouraged. Thus, it was provided in the former[2] text of paragraph 46.01(1)(a) [as enacted idem, s. 14]:

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

(a) the claimant has been recognized by any country, other than Canada, as a Convention refugee and has been issued a valid and subsisting travel document by that country pursuant to Article 28 of the Convention;

It may, however, happen that a claimant seeks and obtains refuge in a country where he is, or becomes, again subject to persecution. This possibility was recognized in the former text of subsection 46.01(2) [as enacted idem]:

46.01 …

(2) Notwithstanding paragraph (1)(a), a person is eligible to have a claim determined by the Refugee Division if, in the opinion of the adjudicator or the member of the Refugee Division considering the claim, the person has a credible basis for a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion in the country that recognized the person as a Convention refugee.

The upshot of this disposition was that, where a claimant under the former system had successfully claimed refugee status in another country and, claiming a fear of persecution in that country as well, came to Canada to claim refugee status here, the first stage or access tribunal was faced with the obligation of a double determination of credible basis.

The statutory framework of the tribunal’s function was set out in subsection 46(1) [as am. idem]:

46. (1) Where an inquiry is continued or a hearing is held before an adjudicator and a member of the Refugee Division,

(a) the adjudicator shall, in the case of an inquiry, determine whether the claimant should be permitted to come into Canada or to remain therein, as the case may be;

(b) the adjudicator and the member shall determine whether the claimant is eligible to have the claim determined by the Refugee Division; and

(c) if either the adjudicator or the member or both determine that the claimant is so eligible, they shall determine whether the claimant has a credible basis for the claim.

By the combined effect of paragraph 46(1)(b) and subsection 46.01(2), the tribunal was required, in the determination of such a claimant’s eligibility, to assess the credible basis of his claim against the country in which he had originally sought and obtained refuge. By the terms of paragraph 46(1)(c), read with the definition of Convention refugee and the other applicable legislation, the tribunal was also obliged to determine whether the claimant had a credible basis for his claim against his country of nationality. In order to have his claim referred to a hearing before the Refugee Division, where, of course, only his alleged fear of persecution in his home country would be relevant, the claimant had to overcome both these hurdles.

The applicant is a person to whom these provisions applied. He is an Iranian citizen. In November 1987, he left Iran and took up residence in Sweden where he claimed and was granted refugee status. He was issued with an international travel document by the Swedish authorities. In January 1990, he came to Canada and claimed refugee status here. In answer to question 12, in his personal information form, “In which country or countries do you fear persecution?”, he replied “Sweden and Iran” (case, at page 176).

At the hearing which was held pursuant to subsection 46(1), it is clear that both the Adjudicator and the case presenting officer were unfamiliar with and confused by the applicable legislative provisions which they apparently had not encountered before.[3] The transcript tells the story:

adjudicator: Mr Southward, do you have a position on the eligibility of the refugee claim to proceed?

case presenting officer: Yes Mr Adjudicator, the Commission is satisfied that Mr Vatnabadi [sic] is eligible for access to considerations of Convention refugee.

adjudicator: Fine, Mr Yerzy, do you have any submissions or evidence on the point?

counsel: No comment.

adjudicator: Mr Ng, do you have any questions or an opinion about eligibility which you wish to express?

I.R.B. member: I have a bit of a concern on the Convention refugee status of the claimant as reflected in answer to question 17. I’m not, in connection with that I’m not quite sure whether Exhibit C-3 as produced is, we don’t have the original at the present moment.

adjudicator: He’s not quite sure whether Exhibit C-3 …

I.R.B. member: … is indeed a passport recognized by the country. We don’t have the original at the present moment I realize that, and I also notice that from question, answer to question 12, that the claimant is making, is fleeing persecution from both countries of Iran and Sweden.

And my concern is the confirmation that he, the person concerned indeed had the passport issued by Sweden then he would be, he would have the right to return to Sweden.

adjudicator: I believe that the concerns that the board member raised are legitimate. And that we have to be satisfied that the claimant is eligible to proceed with a hearing to the Immigration and Refugee Board. For the benefit of Mr Vatnabadi [sic], the section of the Act the board member is referring to is 46.01(1), subsection (a).

And it reads as follows:

“A person who claims to be a Convention refugee is not eligible to have the claim determined by the Refugee Division if the claimant has been recognized by any country other than Canada as a Convention refugee and has been issued a valid and subsisting travel document by that country, pursuant to Article 28 of the Convention.”

Since it is set out in your PIF on question 17 that you were recognized as a Convention refugee in Sweden, and on page 1 of Exhibit C-3, it says: “Travel document, Convention of 28 July, 1951”. It raises some questions in obviously the board member and my mind as well, as to whether or not you fall within this section.

Now since Mr Southward expressed the opinion of the Commission that they are satisfied with eligibility, maybe I will start with him and ask him why he formed that opinion given this apparent discrepancy?

case presenting officer: Mr Adjudicator, it is the Commission’s understanding from the personal information form, and from discussions with counsel, that Mr Vatnabadi [sic] is now making a refugee claim against Sweden as well as one against Iran.

It would be my understanding that under those circumstances he would be eligible for access.

The case presenting officer was clearly wrong. The transcript continues:

adjudicator: I understand. We’ll take a brief recess now and I will discuss it with the board member and we’ll come back on the record see how we want to proceed.

—recessed—

—resumed—

adjudicator: This inquiry is resumed with the same parties present.

The board member and I have discussed the matter and reached a decision on the question of eligibility. Clearly if Mr Vatnabadi [sic] was not claiming refugee status against Sweden as well the, I think the Commission would be contesting the eligibility of the claim to proceed.

However, I understand that since Mr Vatnabadi [sic] is claimant refugee status against Sweden as well, the question of [sic] whether or not they have issued a travel document, passport, et cetera, would take it outside of the definition of 46.01(1)(a). Since the fact that the country in which you are alleging to be fleeing persecution the fact that that country would issue a travel document, or recognize you as a refugee, would not reflect on eligibility.

The tribunal has adopted the case presenting officer’s error. It then gives effect to it:

Therefore the board member and I are finding that you are eligible to have your claim decided by the Immigration and Refugee Board. We are deciding that the claim is eligible to proceed to a hearing with the Immigration and Refugee Board.

I will now go on to the credible basis of this claim. Mr Vatnabadi [sic], for your information I will set out now that the test at this level concerns whether there is any credible or trustworthy evidence on which the Refugee Division might determine you to be a Convention refugee.

The burden of persuading the board member and I to hold that opinion rests with you. Do you understand?

person concerned: Yes.

adjudicator: Okay. Before we get into this Mr Southward, do you have, have you formed the position of the Minister on the question of credible basis?

case presenting officer: At this time Mr Adjudicator, the Commission is contesting the issue of credible basis.

adjudicator: Would it be possible to have a brief discussion at this point that we might be able to narrow the issues on the credible basis. I will still be asking counsel to present his case first. However, it might help matters if we knew that, whether or not you were going to contest against both Iran and Sweden?

Or Sweden and Iran? If it is just Sweden it might be able to help us expedite matters.

case presenting officer: It would be my position Mr Adjudicator, that having already been recognized as a Convention refugee from Iran by Sweden that he is not … that the issue of Iran is not really relevant to this inquiry.

The case presenting officer is wrong again; if in fact the claimant is eligible, only Iran, his country of nationality, is relevant to the question as to whether he fits the definition of Convention refugee. The transcript continues:

I would submit that his eligibility at this point would relate only to a claim from Sweden and not to any claim from Iran since he has already received refugee status in relation to that claim.

adjudicator: But the individual is claiming refugee status from, to be recognized from both countries.

I will throw the issue to counsel, are you claiming refugee status from both countries or just Sweden?

counsel: Well actually my knowledge of these, I have to claim against both countries because I cannot tell when these proceedings will end, if which is conceivable they go on for years, which I can’t know for sure, he may loose his status in Sweden and then I would have done him an injustice.

I have something which I need to raise.

adjudicator: Well okay you can …

counsel: … or rather I will let you finish your thought, but it further goes to the point.

adjudicator: Oh, well if it goes to the point you are more than encouraged to raise it, counsel.

counsel: I’m looking at section 46.01(1) and 46.01(2). And okay, one, 46.01(1)(a) mentions that he is excluded from making, he’s not eligible because he is a refugee in another country. But then (2), my reading of (2) is he’s eligible to have his claim determined if in the opinion of the adjudicator or the member of the Refugee Division the person has a credible basis.

So by my reading, and mind you, just fallen into this situation, as he’s been ruled eligible, notwithstanding 46.01(1)(a), it seems that a judgement with respect to credible basis has already been made, otherwise we couldn’t have ruled him eligible.

I’ve never been involved in this exact proceeding, but the wording says he’s eligible if, if in the opinion of the adjudicator or member he has a credible basis. He cannot be eligible unless he has a credible basis. And we’ve said he’s eligible, so he must have a credible basis.

adjudicator: Well …

counsel: … that’s a question as much as it is a statement, but I have to frame it in terms of a submission for the record.

Counsel has correctly understood the law. The Adjudicator immediately sees the point:

adjudicator: Well it looks like the board member and I made a mistake in not considering subsection (2) when we reached our decision of eligibility and went ahead and found your client eligible because he didn’t fall under (1)(a).

And in that situation I would state that we have not found therefore that he has a credible basis. And I agree with counsel, I believe on the reading of (2) that is it much more pertinent to this situation than (1)(a) as, since you’re claiming that there is a credible basis for a well-founded fear of persecution from the country that recognized Mr Vatnabadi [sic] as a Convention refugee.

Since we went ahead and made the decision concerning eligibility without considering that section, I’m going to have to take a recess to figure out what to do now. (Case, at pages 18-21) [Emphasis added.]

In due course, the tribunal decided to “revisit” the question of eligibility and to conduct an inquiry as to whether or not there was a credible basis to the applicant’s claim to have a well-founded fear of persecution in Sweden. After a number of adjournments, most of them at the applicant’s request, the tribunal ultimately concluded that there was no such credible basis and on May 9, 1991, it issued its formal decision to the effect that the applicant did not meet the eligibility criteria (case, at page 261).

At the hearing before us, the only ground of error pressed by the applicant was based on the doctrine of functus officio: the tribunal, it was said, having already determined the applicant to be eligible, was not at liberty to “revisit” the matter and was obliged to continue with the next stage of its inquiry, namely the credible basis of the applicant’s claim against Iran. I do not agree.

In the first place, the argument seems to me to posit a division of the inquiry mandated by paragraphs 46(1)(b) and (c) into separate, watertight compartments which are consecutive in time one to the other. In argument, counsel made the analogy to a criminal trial where the verdict necessarily precedes the sentencing hearing and where the latter clearly cannot be allowed in any way to impact upon the finding of guilt which has gone before.[4] There is not, in the text of subsection 46(1), however, any requirement of temporal sequence such as occurs in the criminal trial process. On the contrary, it seems to me that the legislation quite strongly suggests that eligibility and access to a Refugee Division hearing by virtue of having a credible basis to the claim are the subject of a single decision, albeit one which may have more than one part. The text of section 46.02 [as enacted idem] read:

46.02 (1) Where both the adjudicator and the member of the Refugee Division determine that the claimant is not eligible to have the claim determined by the Refugee Division or does not have a credible basis for the claim, they shall give their decision and the reasons therefor as soon as possible after making the determination and in the presence of the claimant wherever practicable and, where the matter is before an inquiry, the adjudicator shall, subject to subsection 4(2.1), take the appropriate action under section 32 with respect to the claimant.

(2) Where either the adjudicator or the member of the Refugee Division or both determine that the claimant is eligible 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 subsection 32(1), (3) or (4) or section 32.1 with respect to the claimant. [Emphasis added.]

This text, and particularly subsection 46.02(2), indicates to me that the Adjudicator and the member of the Refugee Division are each called upon to make “determinations” with respect to both eligibility and credible basis, but that those “determinations” are then incorporated into a single “decision” which marks the conclusion of their inquiry. That being so, the tribunal cannot be said to be functus officio or to have exhausted the purposes for which it was brought into being until that decision has been reached. In other words, the decision of the access tribunal may be made up of a number of components, depending on the views of each of the two members on each of the two questions before them, but no component or combination of components falling short of what is required by the statute constitutes a final decision of the tribunal disposing of the question remitted to it. In the context of this case, that did not occur until May 9, 1991.

Furthermore, it seems to me that this view of the matter is in conformity with the approach mandated by the Supreme Court of Canada for issues of functus officio in relation to administrative tribunals. In Chandler v. Alberta Association of Architects,[5] Sopinka J., speaking for the majority, said [at pages 861-862]:

… there is a sound policy reason for recognizing the finality of proceedings before administrative tribunals. As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J. O. Ross Engineering Corp., supra.

To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal. [Emphasis added.]

Here, as it seems to me, not only had the tribunal not reached a final decision in respect of the matter before it, but a policy which favours finality of proceedings would require that the tribunal, having only just started its inquiry, be allowed to correct its obvious mistake. Such policy would not be advanced by insisting on a time-wasting and quite unnecessary continuation down a path which all concerned knew and admitted was fatally flawed. The tribunal’s ultimate decision was only subject to review on a point of law and, since it was manifest that such decision would be wrong in law if the error were not at once corrected, a flexible and pragmatic approach required that such correction be effected forthwith.

This was not a case where any prejudice could be suffered by the applicant as a result of the tribunal’s recognizing its mistake and recommencing its inquiry. Nothing irrevocable had been done based upon the tribunal’s mistaken view of the law and there was no obstacle standing in the way of its going back and starting again. It would have done an injustice if it had failed to do so.

I would dismiss the section 28 [Federal Court Act, R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 8)] application.

MacGuigan J.A.: I concur.

Létourneau J.A.: I concur.

---