A-519-81
Hardev Singh (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Heald, Urie JJ. and MacKay
D.J.—Toronto, November 18, 1981 and January
25, 1982.
Judicial review — Applications to review — Immigration —
Timeliness of application for redetermination of refugee status
— Material to accompany application — Respondent submits
application not filed within 15 days after applicant informed
of Minister's determination as required by s. 40(1) of Immi
gration Regulations, 1978 — Record does not establish failure
to file within 15 days Immigration Appeal Board rejected
application because applicant did not file sworn declaration
pursuant to s. 70(2) of Immigration Act, 1976 — Respondent
submits that Board has duty to consider application only if
accompanied by declaration — Whether provision for filing
declaration under oath mandatory — Application to set aside
Board's decision dismissed Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 28 — Immigration Act, 1976, S.C.
1976-77, c. 52, ss. 70(1),(2), 71(1) — Immigration Appeal
Board Act, R.S.C. 1970, c. I-3, s. 11 — Immigration Regula
tions, 1978, SOR/78-172, s. 40(1).
Application to review and set aside Immigration Appeal
Board's decision refusing an application for redetermination of
refugee status. Applicant did not file his declaration under oath
as required by subsection 70(2) of the Immigration Act, 1976.
The respondent submits that the Board is under a duty to
consider an application under subsection 71(1) only if the
application is one that is referred to in subsection 70(2) since
the words "application referred to in subsection 70(2)" are
present in subsection 71(1). Accordingly, since the declaration
did not accompany the application, the duty imposed on the
Board under subsection 71(1) to "consider the application"
does not apply. The question is whether the provision for filing
a declaration under oath with the application for redetermina-
tion is mandatory.
Held, the application is dismissed.
Per Heald J. dissenting: The record did not disclose that the
application for redetermination had been served after the
15-day period laid down by subsection 40(1) of the Regula
tions. Subsection 71(1) enjoins the Board to "consider the
application" which is identified as the "application referred to
in subsection 70(2)". However, that subsection identifies the
"application" as the "application ... made ... pursuant to
subsection (1)". Thus, it is the subsection 70(1) application
which must be considered by the Board. The legislation existing
prior to the Immigration Act, 1976 required substantially the
same accompanying material as specified in paragraphs
70(2)(a) to (d) (except that under the previous Act no exami
nation under oath was contemplated and a transcript of such an
examination was not required). Under the old scheme the
Board was enjoined to consider the declaration whereas subsec
tion 71(1) of the present Act requires the Board to consider the
application. The use of the word "application" is a "purposive"
change and makes it quite clear that the application for Con
vention refugee status must be considered by the Board wheth
er or not it is accompanied by the material detailed in subsec
tion 70(2).
Per Urie J.: The respondent's argument with respect to the
timeliness of the application for redetermination should be
rejected for the reasons given by Heald J. In construing the
relevant legislation, the duty of the Board to form an opinion as
to whether there were "reasonable grounds to believe that a
claim could, upon the hearing of the application, be estab
lished", had to be borne in mind. The Board was not in a
position to determine whether the matter should be permitted
to proceed if it was not apprised of the evidence supporting the
claim for Convention refugee status. In the total absence of
such material, the Board might be unable to discharge its
statutory duty of determining whether there should be a full
appeal. The Board was accordingly correct in declining to
entertain the appeal absent the declaration under oath although
it was doubtful that the issue was to be characterized as
jurisdictional. The application referred to in subsection 70(2) is
the application "accompanied by" the transcript and declara
tion. The wording setting out the requirement for a transcript
and a declaration were the same. Accordingly, if the wording is
interpreted as meaning that a declaration is not essential, an
applicant could also decide against filing a transcript. If subsec
tion 70(2) is construed as directory only, the Board, in deter
mining whether or not to permit the matter to proceed might
have before it only such material as was favourable to appli
cant's case. It was not, however, necessary that the declaration
actually accompany the application, so long as it is received
before the Board concludes its consideration of the application.
Subsection 70(2) is imperative to the extent that the declara
tion must be provided. While the comprehensiveness of the
information furnished pursuant to paragraphs (a) to (d) is for
an applicant to decide, if the information he supplies is inade
quate, he risks an adverse result.
Per MacKay D.J.: While it may be that some of the provi
sions of section 70 are directory, the provision for filing a
declaration under oath with the application for redetermination
was mandatory. This was shown by the use of "shall" in
subsection 70(2). There was no statutory or other authority for
the Board to waive the requirement for a declaration.
Brayhead (Ascot) Ltd. v. Berkshire County Council
[1964] 2 Q.B. 303, referred to. Bathurst Paper Ltd. v.
Minister of Municipal Affairs of the Province of New
Brunswick [1972] S.C.R. 471, considered.
APPLICATION for judicial review.
APPEARANCE:
Hardev Singh on his own behalf.
COUNSEL:
Robert Hubbard for respondent.
APPLICANT ON HIS OWN BEHALF:
Hardev Singh, Toronto.
SOLICITORS:
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J. (dissenting): This is a section 28
application to review and set aside a decision of
the Immigration Appeal Board dated September
2, 1981 refusing an application for redetermina-
tion of refugee status by the applicant. The Board
dismissed the application "for want of perfection
because of the applicant's failure to file the Decla
ration in accordance with subsection (2) of section
70 of the Immigration Act, 1976". (Case, Appen
dix I, page 4.) Thus the applicant's claim was not
considered on its merits because of the Board's
view that it lacked jurisdiction to consider the
application because it was not accompanied by the
declaration contemplated by subsection 70(2)
referred to supra'.
Section 70 of the Immigration Act, 1976, S.C. 1976-77, c.
52, reads as follows:
70. (1) A person who claims to be a Convention refugee
and has been informed in writing by the Minister pursuant to
subsection 45(5) that he is not a Convention refugee may,
within such period of time as is prescribed, make an applica
tion to the Board for a redetermination of his claim that he is
a Convention refugee.
(2) Where an application is made to the Board pursuant to
subsection (1), the application shall be accompanied by a
copy of the transcript of the examination under oath referred
to in subsection 45(1) and shall contain or be accompanied
by a declaration of the applicant under oath setting out
(a) the nature of the basis of the application;
(b) a statement in reasonable detail of the facts on which
the application is based;
(c) a summary in reasonable detail of the information and
evidence intended to be offered at the hearing; and
(d) such other representations as the applicant deems
relevant to the application.
Counsel for the respondent's first submission in
support of the Board's decision was that subject
application for redetermination was not timely in
that it was not filed within 15 days after the
applicant was informed of the Minister's determi
nation as required by subsection 40(1) of the
Immigration Regulations, 1978, SOR/78-172,
and that the Board properly declined jurisdiction
for this reason as well as the reason quoted supra.
It is noted from the Board's reasons that it did not
rely on this ground as the basis for declining
jurisdiction and, in my view, the submission cannot
be maintained since the record before us does not
establish a failure to file the application within 15
days. The Minister's letter advising the applicant
of his determination that the applicant was not a
Convention refugee is dated June 16, 1981 and
was personally served on the applicant on July 9,
1981. Subsection 40(1) of the Regulations pro
vides for an application to the Board for redeter-
mination within 15 days after being informed by
the Minister in writing and requires that said
application be in writing and requires further that
it be delivered to an immigration officer or be filed
with the Board. In this case, the application for
redetermination is dated July 23, 1981 (Case, page
16) which is within the 15-day limit. In my view
the record does not establish service after the 15
days allowed by Regulation 40(1). Accordingly,
since the date of the application is within the 15
days, in the absence of proof to the contrary, I am
not prepared to assume non-compliance with
Regulation 40(1) so as to oust the Board's jurisdic
tion to consider the application. I would therefore
reject this initial submission by counsel.
Turning now to the second submission of
respondent's counsel, it was his view that the
Board is only under a duty to consider an applica
tion under subsection 71(1) of the Immigration
Act, 1976 if the application is one that is referred
to in subsection 70(2) (supra), since the words
"application referred to in subsection 70(2)" are
present in subsection 71(1). Thus, in his submis
sion, subsection 71(1) contemplates only those
applications which comply with subsection 70(2)
and since in the case at bar the declaration set out
in subsection 70(2) did not accompany the
application, the duty imposed on the Board under
subsection 71(1) to "consider the application" does
not apply to the factual situation in this case.
I am unable to agree with this submission. Sub
section 71(1) of the Immigration Act, 1976 reads
as follows:
71. (I) Where the Board receives an application referred to
in subsection 70(2), it shall forthwith consider the application
and if, on the basis of such consideration, it is of the opinion
that there are reasonable grounds to believe that a claim could,
upon the hearing of the application, be established, it shall
allow the application to proceed, and in any other case it shall
refuse to allow the application to proceed and shall thereupon
determine that the person is not a Convention refugee.
By that subsection, the Board is enjoined to "con-
sider the application" which is identified as the
"application referred to in subsection 70(2)".
However, that subsection identifies the "applica-
tion" as the "application ... made ... pursuant to
subsection (1)". Thus, it is the subsection 70(1)
application which must be considered by the
Board. The reference to subsection 70(2) in sub
section 71(1) is for the purpose of accurate iden
tification of the application which "it shall
forthwith consider", i.e., the subsection 70(1)
application.
Prior to the enactment of the Immigration Act,
1976, which conferred upon the Immigration
Appeal Board jurisdiction to review, upon applica
tion, the Minister's decision with respect to Con
vention refugee status, the Board had jurisdiction
to consider Convention refugee status on an appeal
from a deportation order under section 11 of the
Immigration Appeal Board Act, R.S.C. 1970, c.
I-3. Under that section, the material required to
accompany the application was detailed in para
graphs 11(2)(a) to (d) inclusive. That material is,
substantially, the same as specified in paragraphs
(a) to (d) inclusive of subsection 70(2). There is
however, one difference in the scheme which had
been established under the Immigration Appeal
Board Act (supra) in that no examination under
oath was contemplated and thus subsection 11(2)
did not specify that a transcript of such an exami
nation accompany the application whereas under
the scheme of the Immigration Act, 1976, there is
provision for a preliminary determination of
refugee status by the Minister, and a requirement
(subsection 45(1)) for an examination under oath
by a senior immigration officer. However, when
the mandatory requirements for disposing of the
matter before the Board are compared, a signifi
cant difference is to be noted in the language of
the two sections. Subsection 11(3) of the repealed
Immigration Appeal Board Act enjoins a quorum
of the Board to "forthwith consider the declaration
referred to in subsection (2) ..." whereas subsec
tion 71(1) of the present Act requires the Board to
"... forthwith consider the application ...
[emphasis added in both quotations]. Under the
old scheme, the Board had only the declaration to
assist it in making its decision. Under the present
scheme, the Board has the transcript of the exami
nation under oath (which was on file and available
to it in this case) and, additionally, the declaration
contemplated by subsection 70(2) in cases where it
is filed. Thus, under the present Act, the require
ment is to consider the application, and not the
declaration.
It is well settled that "Legislative changes may
reasonably be viewed as purposive, unless there is
internal or admissible external evidence to show
that only language polishing was intended". 2 In
my view, the use of the word "application" is a
"purposive" change and makes it quite clear that
the application for Convention refugee status must
be considered by the Board, whether or not it is
accompanied by the material detailed in subsection
70(2). It may well be that an applicant will preju
dice the consideration by the Board of his applica
tion by his failure to include the subsection 70(2)
declaration. On the other hand, in cases where all
of the facts are clearly and fairly established by
the examination under oath, it would appear to be
repetitive and unnecessary to require a declaration
to be filed which would simply repeat and restate
those facts'. In any event, this is a judgment
2 This is a quotation from the judgment of Laskin J. (as he
then was) in the case of Bathurst Paper Ltd. v. Minister of
Municipal Affairs of the Province of New Brunswick [1972]
S.C.R. 471 at pp. 477-478.
' In dealing with section 28 reviews of similar decisions of the
Immigration Appeal Board under subsection 71(1), I have seen
many cases where the applicant has filed the declaration con
templated by subsection 70(2) and has simply stated that he
relies on the transcript of the examination under oath. Such
which, in my view, the applicant is entitled to
make. In the case at bar, the transcript of the
examination under oath is on file and the Board is
required to consider it. Whether or not the failure
of the applicant to include a declaration was delib
erate or accidental is of little consequence in my
view since the Board has not been prevented there
by from assuming the jurisdiction conferred upon
it under subsection 71(1) and from making the
determination which that subsection requires it to
make.
In the case at bar, the applicant filed the tran
script and no declaration with his application.
What would be the position if the applicant filed
neither transcript nor declaration or, alternatively,
filed a declaration and no transcript? In my view
of the matter, in each of the above two factual
situations, the Board would have jurisdiction to
deal with the application and should do so. In the
case where neither the transcript nor the declara
tion is filed, I should think the Board would quite
likely dismiss the application for lack of supporting
material. The second factual scenario envisaged
supra, however, presents more difficulties. As I
perceive the scheme of the Act, the preliminary
determination of refugee status is made by the
Minister (section 45). Subsection 45(1) requires
the applicant to be examined under oath with
respect to his claim for refugee status. The tran
script of that examination is referred to the
Refugee Status Advisory Committee who shall
advise the Minister thereon and thereafter the
Minister is required to make a determination as to
refugee status. Sections 70 and 71 set out the
procedure for a redetermination of refugee status
by the Immigration Appeal Board. The Board is,
declarations therefore do not comply with paragraphs 70(2)(a),
(b) and (c). I leave aside paragraph 70(2)(d) because that
requirement is not mandatory. In all of these cases (so far as I
am aware), the Board has not declined jurisdiction for non
compliance with the provisions of paragraphs 70(2)(a), (b) and
(c). I fail to see the distinction between a case where no
declaration has been filed and one where a declaration has been
filed which is defective and deficient in so far as the require
ments of subsection 70(2) are concerned. I have also seen one
case recently where the Board exercised jurisdiction and dealt
with the application on its merits where the applicant filed a
four page handwritten document with attachments which was
undated and unsworn notwithstanding the subsection 70(2)
requirement for a sworn declaration. (See Court File A-544-81,
Singh v. Minister of Employment and Immigration, Case,
Appendix I, page 4.)
in effect, reviewing the Minister's decision which
was based on: (a) the transcript of the examination
under oath, and (b) the recommendations of the
Refugee Status Advisory Committee after a
review of that transcript. Thus, the transcript was
an important document in the decision-making
process engaged in by the Minister. However,
when the matter proceeds to redetermination by
the Board, subsection 70(2) allows the applicant in
paragraphs (a) and (b) to repeat, if he wishes,
each and every fact gleaned from the examination
under oath. He can also supplement the transcript
with additional facts. Thus, in some cases where
the transcript was not filed but a declaration was
filed, it might well be that the declaration is far
more detailed than the transcript. It is true that
the declaration is not subject to cross-examination
whereas in the examination under oath, the appli
cant is subjected to extensive examination by a
senior immigration officer. However, the decision
as to the weight to be given the subsection 70(2)
declaration absent the examination transcript is
for the Board to determine on the circumstances
present in each individual case and the Board
would have jurisdiction, in my view, to make a
decision in such a situation.
For these reasons, I would allow the section 28
application, set aside the decision of the Immigra
tion Appeal Board dated September 2, 1981 and
refer the matter back to the Board to consider the
application as filed. 4
* * *
4 I am aware that in reaching this conclusion, 1 have held, in
effect, that the word "shall" as used in subsection 70(2) should
be construed as directory rather than mandatory. I have
reached this conclusion after having regard to the scheme and
scope of the Immigration Act, 1976, in so far as it relates to the
determination and redetermination of Convention refugee
status. That scheme contemplates that every applicant for
Convention refugee status whose application has been refused
by the Minister, has the right, provided his application is
timely, to have a redetermination of that status by the Immi
gration Appeal Board. By construing "shall" in subsection
70(2) mandatorily every applicant who fails to file the tran
script or a declaration or files a declaration deficient in the
matters specified in paragraphs 70(2)(a) to (c) will be preclud
ed from having his application for redetermination decided on
its merits. When one realizes that many of these applicants are
not totally cognizant of Canadian customs, laws and procedures
and are, in many cases, not proficient in either of the official
languages, and have not had the advantage, quite often, of legal
assistance in the preparation of the subsection 70(1) applica
tion, it seems unlikely that Parliament intended to disentitle
every applicant who failed to comply with the letter of subsec-
The following are the reasons for judgment
rendered in English by
URIE J.: I have had the advantage of reading
the reasons for judgment of Mr. Justice Heald. I
agree with him that the respondent's argument
with respect to the timeliness of the application for
redetermination should be rejected for the reasons
which he has given. However, I must, with great
respect, disagree with his proposed disposition of
the section 28 application on the basis of the
applicant's second ground of attack on the decision
of the Immigration Appeal Board ("the Board").
The reasons for my disagreement follow.
For convenience I set out hereunder subsections
of the Immigration Act, 1976 relevant to this
application although they already appear in the
reasons of my brother Heald:
70. (1) A person who claims to be a Convention refugee and
has been informed in writing by the Minister pursuant to
subsection 45(5) that he is not a Convention refugee may,
within such period of time as is prescribed, make an application
to the Board for a redetermination of his claim that he is a
Convention refugee.
(2) Where an application is made to the Board pursuant to
subsection (1), the application shall be accompanied by a copy
of the transcript of the examination under oath referred to in
subsection 45(1) and shall contain or be accompanied by a
declaration of the applicant under oath setting out
(a) the nature of the basis of the application;
(b) a statement in reasonable detail of the facts on which the
application is based;
(c) a summary in reasonable detail of the information and
evidence intended to be offered at the hearing; and
(d) such other representations as the applicant deems rele
vant to the application.
71. (1) Where the Board receives an application referred to
in subsection 70(2), it shall forthwith consider the application
and if, on the basis of such consideration, it is of the opinion
tion 70(2) from a fair and full consideration of his application
by the Board. Furthermore, when subsection 70(2) is construed
mandatorily, another fatal defect would arise if the transcript
and declaration do not "accompany" the application. A factual
situation might well arise where the application is filed within
the prescribed time limits and the transcript and declaration
are also filed within the specified time but the documents are
not filed together. Surely such a minor and inconsequential
defect should not invalidate the application and deprive the
Board of jurisdiction to deal with the matter (see Maxwell on
the Interpretation of Statutes, 12th Edition, pages 314-315).
that there are reasonable grounds to believe that a claim could,
upon the hearing of the application, be established, it shall
allow the application to proceed, and in any other case it shall
refuse to allow the application to proceed and shall thereupon
determine that the person is not a Convention refugee.
It is, I think, of primary importance in constru
ing these subsections to bear in mind that the duty
of the Board is to formulate an opinion as to
whether "there are reasonable grounds to believe
that a claim could, upon the hearing of the
application, be established . .." and if so to allow
the application to proceed to a hearing. It is a kind
of screening process, the importance of the deci
sion of which to the applicant, cannot be overem
phasized. That Parliament seems to have recog
nized how important that process is can be seen
from the fact that the present Act, as was pointed
out by Heald J., added several mandatory steps to
the redetermination provisions which were embod
ied in the Immigration Appeal Board Act, now
repealed.
An examination under oath by a senior immi
gration officer must be held if, during an inquiry,
an applicant makes a claim for Convention refugee
status (subsection 45(1)). The claim and the tran
script of the examination under oath must be
referred to the Minister for determination (subsec-
tion 45(2)). The Minister must refer the claim and
the transcript to the Refugee Status Advisory
Committee and after the Minister has received the
advice of that Committee he shall determine
whether or not the person is a Convention refugee
(subsection 45(4)). None of these steps were
required under the Immigration Appeal Board Act
or under the Immigration Act, R.S.C. 1952
(Supp.), c. 325.
As my brother Heald pointed out also, a notice
of appeal to the Board under the Immigration
Appeal Board Act based on an appellant's claim
that he was a refugee protected by the Convention
had to contain material substantially the same as
that contained in paragraphs (a) to (d) inclusive of
subsection 70(2). Under the present Act, of course,
where a Convention refugee status claim has been
rejected by the Minister, the application to the
Board for a redetermination of the claim "shall be
accompanied by" a copy of the transcript of the
examination under oath and "shall contain or be
accompanied by a declaration of the applicant
under oath" (subsection 70(2)).
The duty of the Board in determining whether
to permit the appeal to proceed to which I earlier
referred, includes, inter alia, consideration of the
declaration setting out all those matters in para
graphs (a) to (d) of subsection 70(2). Paragraph
(c), for example, requires that "a summary in
reasonable detail of the information and evidence
intended to be offered at the hearing" [emphasis
added] must be included in the declaration. Can it
be said that the Board is in a position to determine
whether or not the claim to be a Convention
refugee ought to be permitted to proceed if it has
not been apprised of the evidence, (to the extent in
detail that the applicant deems necessary) to sup
port his claim? I think not. It seems to me that
Parliament must be presumed to have thought that
this was an important element in enabling the
Board to make its determination of whether to
permit the matter to proceed to a full hearing. In
the total absence of such material, as well as that
required to be included in the declaration by the
other paragraphs of the subsection, the Board, in
my opinion, may not be in a position to carry out
its statutory duty to determine whether or not the
matter should proceed to a full appeal. That being
so, I am of the opinion that the Board correctly
held that, absent the declaration under oath, it
ought not to entertain the appeal although I am
doubtful that its characterization of the issue as a
jurisdictional one is correct. The characterization
in the circumstances herein is not of crucial impor
tance. The correctness of its decision not to let the
matter proceed is.
I am fortified in my view by the wording of
subsection 71(1). The opening words thereof are:
"Where the Board receives an application referred
to in subsection 70(2) . ..". The application
referred to in the latter subsection is not the
"application" referred to in subsection 70(1); it is
that application "accompanied by" the transcript
and "contained" or "accompanied by" the declara
tion. Therefore, in my opinion, when subsection
71(1) then directs the Board to "forthwith consid
er the application . .." it refers to the application
accompanied by the transcript and contained in or
accompanied by the declaration. It does not mean
the "application" alone.
I am further fortified in my view, it seems to
me, by the requirement of subsection 70(2) that
the application "be accompanied" by the tran
script and "contain or be accompanied by" a
declaration. The language with respect to the
accompaniment of both the transcript and the
declaration with the application can be seen to be
virtually the same. If that is so, the consequences
flowing from the inclusion or non-inclusion should
be the same. If the applicant can decide not to file
a declaration on the language so interpreted he
could decide not to file the transcript. Thus, if, for
example, the transcript of the examination under
oath contains evidence which the applicant deems
to be unfavourable to him, he might decide to
withhold it and submit only a declaration couched
in favourable language. If subsection 70(2) is con
strued as merely being directory and not mandato
ry, the Board would have before it, at the option of
the applicant, only the favourable material and not
the unfavourable for the purpose of determining
whether or not to permit the matter to proceed. Its
ability to make a proper decision on all the ma
terial would as a consequence be limited and it
would be deprived of the ability to carry out its
statutory mandate. The scheme for redetermina-
tion of the Minister's decision surely does not
contemplate such a limitation of the Board's
powers.
This is not to say that it is necessary for the
declaration literally to accompany the application
and that failing such literal accompaniment that
the application must be dismissed. If the applica
tion is filed within the time limitation prescribed
by the Regulations (subsection 40(1)), then it
seems to me that achievement of the purpose of
the relevant sections of the statute is not affected if
the filing of the declaration is not made at the
same time as the application is filed. The require
ment of accompaniment, is, as I see it, directory so
that the fear of insistence upon strict literal com
pliance with the requirements of subsection 70(2)
in that connection should not constitute a real
danger. Subsection 71(1) requires that the applica
tion (together with the transcript of the examina
tion under oath and the declaration as I interpret
the subsection) be considered forthwith. If the
declaration is received before the Board concludes
its consideration of the application then, whether
receipt with or after the filing of the application, it
must be considered. That is part of the obligation
imposed on the Board by subsection 71(1).
The same reasoning, it seems to me, applies to
the fear of the Board holding that paragraphs (a)
to (d) inclusive have not been satisfactorily com
plied with. As stated earlier herein, it is of primary
importance not to lose sight of the duty imposed
on the Board by subsection 71(1) to form an
opinion on whether or not there are reasonable
grounds to believe that upon the hearing of the
application the claim could be established. Subsec
tion 70(2) appears to have been drafted to ensure
that the applicant will provide the Board with the
information necessary to enable it to form a rea
soned opinion. As I have found, subsection 70(2)
requires that the declaration must be provided by
the applicant and to that extent it could be said
that the provisions of the subsection are impera
tive. But the extent to which the applicant chooses
to provide the information required by paragraphs
(a) to (d) inclusive is solely within his province. If
he chooses not to inform the Board of the nature of
the basis of his claim as required by paragraph
(a), he runs the risk of the Board not correctly
ascertaining what that basis is. If he chooses not to
make the further representation permitted by
paragraph (d) or provides none of the information
permitted to be supplied by paragraphs (b) and
(c), relying only on the transcript of the examina
tion under oath, for example, he risks an unsatis
factory result from his point of view.
As I see it, the effective achievement of the
purpose of the redetermination provisions of the
statute (namely, to form the opinion earlier
referred to) does not require that the applicant
provide the information sought by paragraphs (a)
to (c) if he chooses to do so by reference to the
transcript of the examination under oath or does so
in a manner that the Board might think to be
unsatisfactory. If that is so, in so far as compliance
with these paragraphs is concerned, subsection
70(2) has the characteristic of being directory
rather than being imperative. 5 The Board then
5 Compare: Brayhead (Ascot) Ltd. v. Berkshire County
Council [1964] 2 Q.B. 303 at pp. 313-314.
makes its decision, as statutorily required, on such
material as the applicant has supplied.
For all of the above reasons I am of the opinion
that the Board did not err in refusing to consider
the applicant's application for redetermination and
in refusing to permit the application to proceed. I
would, therefore, dismiss the section 28 applica
tion.
* * *
The following are the reasons for judgment
rendered in English by
MACKAY D.J.: The applicant on his application
to the Immigration Appeal Board for redetermina-
tion of his claim that he is a Convention refugee
did not file his declaration under oath as required
by section 70 subsection (2) of the Immigration
Act, 1976.
I am of the view that while it might be said that
some of the provisions of the section as to the
content of the declaration might be characterized
as being directory, the provision for filing his
declaration under oath with his application for
redetermination is mandatory.
If the provision of the statute as to having the
declaration of the applicant accompany his
application for redetermination of his claim to
refugee status is in the discretion of the applicant,
the word "may" not "shall" would have been used
in subsection 70(2) of the statute.
I can find no provision in the statute or rules
that would enable the Board to waive or dispense
with the filing of the applicant's declaration under
oath or to proceed with the consideration of the
application for redetermination without having the
applicant's declaration before them.
The onus is on the applicant, in making his
application for redetermination of his claim, to
comply with the provisions of the statute. If he
fails to do so, he cannot complain if his application
is dismissed.
For these reasons and those of my brother Urie,
in which I concur, I would dismiss this application.
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.