76-A-303
Tadeusz Adamusik (Applicant)
v.
Minister of Manpower and Immigration
(Respondent)
Court of Appeal, Jackett C.J., Pratte J. and Hyde
D.J.—Ottawa, February 24, 1976.
Immigration—Application for leave to appeal decision of
Immigration Appeal Board refusing to allow an appeal to the
Board under s. 11 of Immigration Appeal Board Act—Wheth-
er arguable question of law or jurisdiction—Immigration
Appeal Board Act, R.S.C. 1970, c. I-3, s. 11 (as am. S.C.
1973-74, c. 27, s. 5) and s. 23.
The Immigration Appeal Board refused, under section 11, to
allow applicant's appeal from a deportation order to proceed.
Applicant contends that there is sufficient doubt as to the
correctness of the decision; that his submissions are substantial;
and that the Board erred in law in making an unsupported
decision, in refusing to allow his appeal as a refugee to go on in
the face of clear evidence that he is a refugee, and, in its
application of section 11(3).
Held, leave to appeal should be refused. While it is doubtful
whether an appeal lies under section 23 from a refusal to allow
an appeal to go forward under section 11, no conclusion need be
reached on the issue, for the application should be dismissed
even if section 23 does apply. The question is whether a case
has been made out. Under section 11, a person who has been
ordered deported may appeal to the Board from the order if he
is "a person who claims he is a refugee protected by the
Convention"; his appeal must include a declaration under oath.
The Board's duty was to refuse to allow the appeal to proceed
unless on the basis of the consideration of the declaration, it
was of the opinion that there were reasonable grounds to
believe that, upon the hearing of the appeal, it could be
established that applicant was a refugee protected by the
Convention i.e. a person who, owing to a well-founded fear of
being persecuted was outside the country of his nationality and
unwilling or unable to avail himself of its protection. No
reasonably arguable submission that the Board erred in law in
not so concluding on the basis of its consideration of the
declaration has been advanced.
APPLICATION.
COUNSEL:
L. Kearley for applicant.
G. Garton for respondent.
SOLICITORS:
Parkdale Community Legal Services,
Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
JACKETT C.J.: This is an application in writing
under Rules 324 and 1107 for leave to appeal to
this Court from a decision of the Immigration
Appeal Board. Leave is sought under section 23 of
the Immigration Appeal Board Act, subsection (1)
of which reads as follows:
23. (1) An appeal lies to the Federal Court of Appeal on
any question of law, including a question of jurisdiction, from a
decision of the Board on an appeal under this Act if leave to
appeal is granted by that Court within fifteen days after the
decision appealed from is pronounced or within such extended
time as a judge of that Court may, for special reasons, allow.
The decision of the Immigration Appeal Board
from which leave to appeal is sought is a decision
"refusing to allow the Applicant's appeal to that
Board from an order of deportation made against
the Applicant ... to go forward", which decision
was made by that Board under section 11 of the
Immigration Appeal Board Act as amended by
section 5 of chapter 27 of the Statutes of 1973-74,
which section reads in part:
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
(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 the 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.
While I have doubt that an appeal lies to this
Court under section 23 (supra) from a decision
(under section 11(3) (supra)) refusing to allow an
appeal to proceed, no conclusion has to be reached
on that question, in my view, to dispose of this
application, because the application for leave
should, in my view, be dismissed even if section 23
is applicable in the case of such a section 11(3)
decision.
Assuming that section 23 is applicable to such a
decision under section 11(3), the question is
whether a case has been made out for granting
leave to appeal from the Board's decision refusing
to allow the appeal from the deportation order
made by the Special Inquiry Officer to proceed.
(No question arises on such an application as to
whether a case has been made out for leave to
appeal to this Court from the deportation order
itself, if there were such an appeal.)
The grounds set out in the notice of motion read
as follows:
1. That there is sufficient doubt as to the correctness of the
decision of the Immigration Appeal Board to merit the con
sideration of this court on the questions of law.
2. That the submissions which the Applicant desires to present
to this court (which submissions will be more fully set forth in
the memorandum of points of law) are of a substantial nature.
3. That the Immigration Appeal Board erred in law in making
a decision not supported at all by the evidence before it.
4. That the Immigration Appeal Board erred in law in refusing
to allow the Applicant's appeal as a refugee to that Board to go
forward in the face of clear evidence that the applicant is a
refugee.
5. That the Immigration Appeal Board erred in law in its
application of Section 11, subsection (3) of the Immigration
Appeal Board Act R.S.C. 1970, Chapter I-3, as amended.
In themselves, in my view, these "grounds" dis
close no reasonably arguable question of "law" or
"jurisdiction" upon which an attack on the Board's
section 11(3) decision could be based. Further
more, I find no such reasonably arguable question
disclosed by the written submissions of counsel.
Briefly, as I understand it, the result of section
11 of the Immigration Appeal Board Act as enact
ed in 1973, in so far as applicable in this case, is
(a) that a person against whom a deportation
order is made may appeal to the Board from
that deportation order on a question of law or
fact or mixed law and fact, if he is "a person
who claims he is a refugee protected by the
Convention" (section 11(1)),'
(b) where a person claiming to be such a
refugee does appeal, his appeal must include a
"declaration under oath" containing specified
information (section 11(2)), and
(c) where the Board receives such an appeal, a
quorum of the Board is required to consider
such "declaration" forthwith and if "on the
basis of such consideration", it is not of opinion
that there are reasonable grounds to believe that
the "claim" to be such a refugee could, upon the
hearing of the appeal, be established, it is
required to "refuse to allow the appeal to pro
ceed" (section 11(3)).
In this case, the applicant did appeal from a
deportation order as a person who claimed to be a
"refugee protected by the Convention" and, as
required by section 11(2), he filed a declaration
reading as follows:
' Whether or not he is such a refugee would appear to be
completely irrelevant to the validity of the deportation order
under the Immigration Act. Being such a refugee is, however, a
possible basis for exercise of the Board's powers under section
15 of the Immigration Appeal Board Act if the appeal is
allowed to proceed and is dismissed.
1. I was persecuted in Poland in that I was harassed in the
exercise of my religion—the principal of the school which I
attended singled out religious students for compulsory outside
labour on Sundays to prevent the exercise of our faith.
2. I was prevented from getting employment due to my refusal
to join the Communist Party or its youth organization, and was
forced to pay bribe money to get any job at all.
3. I was denied permission to enter grade 12 due to my
non-membership in the party and my religious belief.
4. I was forced to bribe a Government official to obtain a
Polish passport to flee to Canada. I will undoubtedly be prose
cuted for this Act.
5. The immediate reason that I decided to leave Poland was my
draft into the armed forces, however, I had long believed that
the Government of Poland would prevent me from achieving a
decent life due to my refusal to renounce Christianity, and
became [sic] a party member.
6. I did not receive a full and proper hearing at the Special
Inquiry since
(a) The Special Inquiry Officer refused my counsel the right
to inspect the record of my interview with the
Officer-in-Charge.
(b) The Special Inquiry Officer refused me an adjournment
to seek appropriate legal action to require that the document
be released to my counsel.
(c) The Special Inquiry Officer refused my counsel permis
sion to question me about my status as refugee, and treated
the decision of the Interdepartmental Committee on
Refugees as final; and
(d) I was effectively deemed a right to counsel because I was
advised that I would not require counsel. Therefore I assent
ed to being represented by my 70 year old great-aunt, whose
presentation on my behalf was incoherent and incompetent.
As I understand the Board's duty under section
11(3) in this case, it was to refuse to allow the
appeal to proceed, unless "on the basis" of its
"consideration" of the above declaration, it was of
opinion that there were reasonable grounds to
believe that, upon the hearing of the appeal, it
could be established that the appellant was a
refugee protected by the Convention, which, by
reference to the "Convention", means that, in this
case, they had to make such an order unless they
concluded that it was reasonable to believe that it
could be established that he was a person who,
owing to a well-founded fear of being persecuted
for reasons of race, religion, nationality, member
ship of a particular social group or political opin
ion, was outside the country of his nationality and
was unable or unwilling to avail himself of the
protection of that country. 2 In my view, no reason
ably arguable submission has been put forward for
the contention that the Board erred in law in not
reaching that conclusion on the basis of its con
sideration of the declaration and I have not myself
been able to detect any such reasonably arguable
submission.
In my view, for the above reason, leave to appeal
should be refused.
* * *
PRATTE J.: I agree.
* * *
HYDE D.J.: I concur.
2 See the 1951 Convention relating to the Status of Refugees
and section 1 of chapter 27 of the Statutes of 1973-74.
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.