A-671-75
Juan Jose Fourment Lugano and dependent chil
dren Nancy Judith Lugano, Juan Jr. and Danilo
Lugano (Applicants)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Urie and Ryan JJ. and MacKay
D.J.—Toronto, April 8; Ottawa, April 30, 1976.
Immigration—Judicial review—Applicants ordered deport-
ed—Claiming refugee status—Immigration Appeal Board
refusing appeal—Applications to extend time for granting
leave to appeal and for judicial review heard simultaneously—
Immigration Appeal Board Act, R.S.C. 1970, c. I-3, ss. 11,
15(1), 23 as am. S.C. 1973-74, c. 27, s. 5—Federal Court Act,
ss. 28, 29—Canadian Bill of Rights, S.C. 1960, c. 44, ss. 1,
2(e).
Applicants appealed a deportation order, claiming refugee
status. By virtue of section 11(3) of the Immigration Appeal
Board Act, the Board refused to allow their appeal. Applicants
applied to extend the time for granting leave to appeal the
Board's decision, and, by order of the Court, a section 28
application to review the decision was heard at the same time.
Applicants argued (1) that the correct procedure for review of
a Board decision is by way of section 28 of the Federal Court
Act and an application for leave to appeal under section 23 of
the Immigration Appeal Board Act; (2) that section 11(3) of
the Act must be interpreted so as to require the Board to allow
an appeal unless the claim to refugee status is patently frivol
ous; and (3) even if an appeal can succeed only if the Board
refused to exercise its discretion or failed to exercise its section
15 discretion properly, such a principle must be interpreted in
light of section 2(e) of the Canadian Bill of Rights.
Held, both applications are dismissed. (1) Section 29 of the
Federal Court Act prohibits a section 28 application against a
decision of the Board affirming a deportation order, and the
proper procedure is to enter an appeal under section 23 of the
Immigration Appeal Board Act. The same procedure is to be
followed in respect of an order of the Board under section
11(3), since, following its refusal, the Board is required to
direct the execution of the order, and thus effectively deter
mines the appeal at that stage. It, thus, appears to be a decision
"on appeal" within the meaning of section 23. If an applicant
satisfies the Court that there is a question of law involved, then
a right of appeal lies to this Court under section 23. (2) The
wording of section 11(3) goes farther than merely determining
whether the claim is frivolous or not. It requires an assessment
of the evidence then before the quorum of the Board, and a
determination of whether there exist reasonable grounds for
believing it is more likely than not, on a balance of probabili
ties, that the applicant can prove his status at a full hearing.
Nor was it intended that the Court, in determining whether it
would interfere with an order of the Board under section 11(3),
would employ a different standard than that which is normally
applicable in the review of an exercise of statutory discretion.
There is nothing here which would amount to an error of law,
and the Board's assessment ought not to be interfered with. (3)
Parliament has expressly provided the method by which an
applicant is to have a right of appeal where he claims to be a
refugee. He knows the case he must establish and is afforded an
opportunity to provide a summary of the facts and evidence. He
has not been deprived, under section 11(3), of the right to a fair
hearing, nor does a reading of sections 1 and 2(e) of the
Canadian Bill of Rights, together with section 11(3) of the
Immigration Appeal Board Act require the interpretation of
section 11(3) in a lenient way. There has been no violation of
the Canadian Bill of Rights.
Boulis v. Minister of Manpower and Immigration [1974]
S.C.R..875; Armstrong v. Wisconsin [ 1973] F.C. 457;
Prata v. Minister of Manpower and Immigration (1975)
52 D.L.R. (3d) 383, applied. Minister of Manpower and
Immigration v. Fuentes [ 1974] 2 F.C. 331; Hidalgo v.
Minister of Manpower and Immigration (not reported,
A-71-75), considered.
JUDICIAL review.
COUNSEL:
R. J. Gathercole for applicants.
G. R. Garton for respondent.
SOLICITORS:
c/o Student's Legal Aid Service, Toronto, for
applicants.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
URIE J.: This is an application for an extension
of time for granting leave to appeal from a judg
ment of the Immigration Appeal Board dated the
13th day of November 1975. By order of the Court
an application made pursuant to section 28 of the
Federal Court Act to review and set aside the
same judgment was directed to be heard, and was
in fact heard, at the same time.
The applicants, who had been ordered deported
following a special inquiry on October 23, 1975,
filed a notice of appeal from the deportation order
to the Immigration Appeal Board (hereinafter
referred to as the Board) on October 24, 1975. The
notice of appeal was accompanied by a declaration
under oath made pursuant to section 11(2) of the
Immigration Appeal Board Act (hereinafter some
times referred to as the Act) in which the adult
applicant claimed to be a refugee protected by the
United Nations Convention and Protocol Relating
to the Status of Refugees. On November 13, 1975
the Immigration Appeal Board by virtue of section
11(3) of the Act refused to allow the appeal to
proceed and directed that the deportation order be
executed as soon as practicable. It is in respect of
this judgment that the present applications are
brought.
Since in large part the applications involve an
interpretation of the effect of a determination
made under section 11, that section is set out in
full hereunder:
11. (1) Subject to subsections (2) and (3), a person against
whom an order of deportation is made under the Immigration
Act may appeal to the Board on any ground of appeal that
involves a question of law or fact or mixed law and fact, if, at
the time that the order of deportation is made against him, he
is
(a) a permanent resident;
(b) a person seeking admission to Canada as an immigrant
or non-immigrant (other than a person who is deemed by
subsection 7(3) of the Immigration Act to be seeking admis
sion to Canada) who at the time that the report with respect
to him was made by an immigration officer pursuant to
section 22 of the Immigration Act was in possession of a
valid immigrant visa or non-immigrant visa, as the case may
be, issued to him outside Canada by an immigration officer;
(c) a person who claims he is a refugee protected by the
Convention; or
(d) a person who claims that he is a Canadian citizen.
(2) Where an appeal is made to the Board pursuant to
subsection (1) and the right of appeal is based on a claim
described in paragraph (1)(c) or (d), the notice of appeal to the
Board shall contain or be accompanied by a declaration under
oath setting out
(a) the nature of the claim;
(b) a statement in reasonable detail of the facts on which the
claim is based;
(c) a summary in reasonable detail of the information and
evidence intended to be offered in support of the claim upon
the hearing of the appeal; and
(d) such other representations as the appellant deems rele
vant to the claim.
(3) Notwithstanding any provision of this Act, where the
Board receives a notice of appeal and the appeal is based on a
claim described in paragraph (1)(c) or (d), a quorum of the
Board shall forthwith consider the declaration referred to in
subsection (2) and, if on the basis of such consideration the
Board is of the opinion that there are reasonable grounds to
believe that the claim could, upon the hearing of an appeal, be
established, it shall allow the appeal to proceed, and in any
other case it shall refuse to allow the appeal to proceed and
shall thereupon direct that the order of deportation be executed
as soon as practicable.
(4) The Governor in Council may make regulations defining
the expressions "immigrant visa" and "non-immigrant visa" for
the purpose of paragraph (1) (b).
Counsel for the applicants first argued that the
correct procedure for reviewing a decision of the
Board is by way of a section 28 application and by
way of an application for leave to appeal under
section 23 of the Act. He submitted that section 29
of the Federal Court Act does not preclude an
application under section 28. This Court has
already held in A-102-75, Lubin v. The Minister
of Manpower and Immigration, an unreported
decision dated May 15, 1975, that section 29 of
the Federal Court Act prohibits an application
under section 28 directed against a decision of the
Board affirming a deportation order. It was held in
that case that if an applicant desired to have that
decision modified, he should have proceeded under
section 23 of the Immigration Appeal Board Act,
and entered an appeal.
Is the same procedure required to be followed in
respect of an order of the Board made pursuant to
section 11(3) refusing to allow an appeal to pro
ceed? In my view it does since, following its refus
al, the section requires the Board to direct that the
order of deportation be executed as soon as practi
cable and thus effectively determines the appeal at
that stage. Thus, it appears to be a decision "on an
appeal" within the meaning of section 23 of the
Immigration Appeal Board Act and is therefore
capable of being the subject matter of an appeal to
this Court, if the other requirements of section 23
are met. This construction of the subsection
accords with the reasoning of Laskin J., as he then
was, in his judgment in the case of Roulis v. The
Minister of Manpower and Immigration' where,
at page 880, in discussing whether or not an appeal
lay to that Court at that time from the refusal of
the Board to stay the execution of an order of
deportation pursuant to section 15(1)(b)(î), he
found as follows:
The decision of the Board, after dismissing an appeal from a
deportation order, on the application of s. 15(1) is as much a
decision "on an appeal" as its affirmation of a deportation
order. I see no reason to read the words "on an appeal" as if
they included by extension the words "from a deportation
order" or "from the refusal to make a deportation order". The
words "on an appeal" are more easily susceptible of being read
to mean "in the course of an appeal" or "on the hearing of an
appeal", and point as much to the entire course of proceedings
as to the narrower issue of the competency of a deportation
order per se. I prefer the wider view which does not exclude this
Court from the scheme of review of which it is a part by its
leave, limited only by the requirements that there be a question
of law, including a question of jurisdiction, involved.
This reasoning, as it seems to me, is wholly
applicable to a decision on a claim under section
11(3) and, if an appellant satisfies the Court that
there is a question of law involved, then a right of
appeal lies to this Court under section 23 of the
Immigration Appeal Board Act. Accordingly, by
reason of section 29 of the Federal Court Act, no
right of review exists under section 28.
Counsel for the applicants next argued that
section 11(3) of the Act must be interpreted in
such a way as to require the Board to allow an
appeal unless the claim to refugee status is patent
ly frivolous. To support this proposition he referred
to two decisions of this Court. In Minister of
Manpower and Immigration v. Fuentes 2 , Pratte J.
at page 334 in reference to the right of appeal of
persons referred to in section 11(1) (c) and (d),
pointed out that such right was subject to two
conditions. At page 334 he stated:
Accordingly, a person claiming to be a Canadian citizen or
refugee must first—this is the first condition imposed on his
right of appeal—append to his notice of appeal a declaration
under oath setting out the essential aspects of his claim and the
facts on which it is based. This declaration must then, and this
' [1974] S.C.R. 875.
2 [1974] 2 F.C. 331.
is the second condition, be considered by a "quorum of the
Board". If, after considering the declaration, the Board con
cludes that the claim is not a serious one, it must direct that the
deportation order be executed as soon as practicable; the right
of appeal is then lost. If, however, consideration of the declara
tion indicates to the Board that the claim is a serious one, "it
shall allow the appeal to proceed". [The emphasis is mine.]
In further support of his proposition counsel
referred to the unreported decision in Hidalgo v.
Minister of Manpower and Immigration' wherein,
in referring back to the Board the applicants'
application for relief under section 15 of the Act, it
was stated that:
... that the condition to its jurisdiction to grant relief under the
said section 15 contained in the words "the existence of reason
able grounds for believing that the person concerned is a
refugee protected by the Convention" is satisfied if the balance
of probability on such evidence is that reasonable grounds exist
for believing that the appellant is such a refugee even if the
balance of probability on such evidence is that the appellant is
not such a refugee.
In considering the validity of the applicant's
submission that these cases buttress his argument
that the Board need only determine at the section
11 stage of the proceedings whether or not the
claim is serious or, to put it in the way espoused by
the applicants, is not frivolous, the wording of
subsection 3 is, in my view, ignored. The pertinent
words are
... a quorum of the Board shall forthwith consider the declara
tion ... and, if on the basis of such consideration the Board is
of the opinion that there are reasonable grounds to believe that
the claim could ... be established, it shall allow the appeal to
proceed....
This goes farther than merely determining whether
or not the claim is frivolous.
It requires, as I see it, an assessment of the
evidence then before the quorum of the Board
(limited as it is by the requirements of section
11(2) as to the contents of the declaration) and a
determination, on that evidence, of whether there
exist reasonable grounds to believe that it is more
likely than not that, on a balance of probabilities,
the applicant can prove his status as a refugee at a
full hearing of the Board. I do not read the judg-
3 F.C.A. No. A-71-75 dated May 26, 1975. [Reasons for
judgment not circulated—Ed.]
1 ments in either the Fuentes or Hidalgo cases as
putting the duty imposed on the Board at any
lower a standard than that.
Moreover, I do not believe that in either of those
decisions it was intended to imply that the Court
in determining whether or not it would interfere
with an order of the Board made under section
11(3) would depart from, or employ a different
standard than that which is normally applicable in
the review of an exercise of a statutory discretion.
Abbott J. in the Boulis case (supra) dealt with the
principles applicable in an appeal from such a
decision at page 877, where he said:
In my opinion however, such an appeal can succeed only if it
be shown that the Board (a) has refused to exercise its discre
tion or, (b) has failed to exercise the discretion given under s.
15 in accordance with well established legal principles. As to
those principles Lord Macmillan speaking for the Judicial
Committee said in D. R. Fraser and Co. Ltd. v. Minister of
National Revenue ([1949] A.C. 24) at p. 36:
The criteria by which the exercise of a statutory discretion
must be judged have been defined in many authoritative
cases, and it is well settled that if the discretion has been
exercised bona fide, uninfluenced by irrelevant considerations
and not arbitrarily or illegally, no court is entitled to inter
fere even if the court, had the discretion been theirs, might
have exercised it otherwise.
I do not see any error in the Board's assessment
of the declaration which would amount to an error
of law, in its refusal to permit the applicants to
continue with their appeal and therefore, in my
opinion, we ought not to interfere with that deci
sion on the basis of the test for which applicants'
counsel contended.
Applicants' counsel further argued that even if
the principle propounded by Abbott J. (supra) is
accepted and is applicable in considering the test
to be applied by the Board under section 11(3), it
must be interpreted in the light of section 2(e) of
the Canadian Bill of Rights, which reads as
follows:
2. Every law of Canada shall, unless it is expressly declared
by an Act of the Parliament of Canada that it shall operate
notwithstanding the Canadian Bill of Rights, be so construed
and applied as not to abrogate, abridge or infringe or to
authorize the abrogation, abridgment or infringement of any of
the rights or freedoms herein recognized and declared, and in
particular, no law of Canada shall be construed or applied so as
to
(e) deprive a person of the right to a fair hearing in accord
ance with the principles of fundamental justice for the deter
mination of his rights and obligations.
This contention can be answered simply, in my
opinion, by pointing out that Parliament has made
express provision as to the method by which an
applicant is to have a right of appeal where he
claims to be a refugee. He knows the case which
he must establish to enable the Board to allow his
appeal to proceed and is afforded an opportunity
of providing a detailed summary of the facts and
evidence upon which he relies and of making sub
missions with respect thereto. Thus it does not
appear that Parliament in this enactment has
deprived him of a right to a fair hearing.'
Nor, in my opinion, does a reading of sections 1
and 2(e) of the Canadian Bill of Rights, together
with section 11(3) of the Immigration Appeal
Board Act, require that the latter section be inter
preted in such a way as to lean toward leniency to
the applicants which was the restrictive interpreta
tion urged by applicants' counsel. None of the
human rights or fundamental freedoms referred to
in section 1 have been discriminated against, nor
does section 11(3) as construed in these reasons
abrogate, abridge or infringe any of those rights
and freedoms.
Accordingly, for all of the above reasons the
application for an extension of time for granting
leave to appeal and the section 28 application
should be dismissed.
* * *
RYAN J.: I concur.
* * *
MACKAY D.J.: I agree.
° See Armstrong v. The State of Wisconsin [1973] F.C. 437
and see also Prata v. Minister of Manpower and Immigration
(1975) 52 D.L.R. (3d) 383.
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.