A-181-81
Orlando Bonifacio Cepeda-Welden (Applicant)
v.
Immigration Appeal Board (Respondent)
Court of Appeal, Heald, Le Dain JJ. and Hyde
D.J.—Calgary, May 10, 11 and 12, 1982.
Judicial review — Applications to review — Immigration —
Application for redetermination of refugee status denied —
Immigration Appeal Board decision based on consideration of
whether applicant inadmissible under s. 19(1)(f) or (g) of
Immigration Act and subject to deportation under s. 55(a),
even though Convention refugee — Board implies that refugee
status academic because of likelihood that applicant inad
missible under another section of Act — Board restricted to
determination of refugee status as defined in s. 2(1) — Proper
test is whether reasonable grounds to believe that applicant
could establish at full hearing claim to well-founded fear of
persecution because of political opinion and that because of
such fear he is unwilling to avail himself of protection of Chile
— Board can consider only material specified in s. 70(2) in
forming opinion — Board erred in considering whether appli
cant inadmissible person — S. 28 application allowed —
Matter referred back to Board for reconsideration — Federal
Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28 — Immigra
tion Act, 1976, S.C. 1976-77, c. 52, ss. 2(1), 19(l)(f),(g), 55(a),
70(2), 71(1).
APPLICATION for judicial review.
COUNSEL:
F. T. Abboud for applicant.
B. Saunders for respondent.
SOLICITORS:
Charles R. Darwent, Calgary, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: I am not persuaded that the Immi
gration Appeal Board applied the proper test to
the factual situation in this case. The correct
criteria, as detailed in subsection 71(1) of the Act,
is whether or not there are reasonable grounds to
believe that the claim for refugee status could, at a
full hearing, be established. In making the decision
as to whether or not to allow the claim to proceed
to a full hearing, the Board can consider only the
material specified in subsection 70(2) of the Act.
On the basis of that material the Board is required
to form its opinion.
In its reasons the Board concerns itself with the
applicant's background as a "Marxist guerilla
fighter" and discusses the question as to whether
or not the applicant could, on the evidence, be
considered to be a person whose presence in
Canada would be a danger and thus likely inad
missible under either paragraphs 19 (1) (f) or (g) of
the Act, and, as such, subject to deportation under
paragraph 55(a) even though found to be a Con
vention refugee. The Board seems to imply that
the question of refugee status may be academic in
this case because of the likelihood that the appli
cant would be inadmissible pursuant to another
section of the Act.
It is my opinion that such a view represents an
erroneous perception of the Board's powers under
the Immigration Act, 1976, S.C. 1976-77, c. 52.
The Board has no jurisdiction, in this factual
situation, to determine whether this applicant falls
within any of the inadmissible classes set out in the
Act nor does it have any power to exercise the
authority set out in section 55. The Board's powers
are restricted, in this case, to a determination of
refugee status as that status is defined in subsec
tion 2(1) of the Act. It is noted that the Board, in
its reasons, specifically states that the matters
referred to supra relating to paragraphs 19(1)(f)
and (g) and 55(a) have been considered in reach
ing its decision. Accordingly I am not satisfied that
in reaching its conclusion the Board asked itself
the proper question, i.e. whether or not there are
reasonable grounds, on this evidence, to believe
that the applicant could, at a full hearing, estab
lish his claim to a well-founded fear of persecution
by reason of his political opinion and that, because
of such well-founded fear, he is unwilling to avail
himself of the protection of Chile, his country of
origin, nor am I satisfied that it was not influenced
by irrelevant and extraneous matters.
For these reasons I would allow the section 28
application, set aside the decision of the Immigra
tion Appeal Board dated March 19, 1981, and
refer the matter back to the Board for reconsidera
tion on the basis of the provisions of the Immigra
tion Act, 1976, and the relevant jurisprudence.
LE DAIN J.: I agree.
HYDE D.J.: I agree.
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.