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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.
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