[1995] 1 F.C. 659
A-1621-92
Mariyanayagam Anthany (Applicant)
v.
The Minister of Employment and Immigration (Respondent)
Indexed as: Anthany v. Canada (Minister of Employment and Immigration) (T.D.)
Trial Division, Teitelbaum J.—Toronto, October 11; Ottawa, November 10, 1994.
Citizenship and Immigration — Immigration practice — Motion to quash Chief Justice’s Direction No. 17, resulting in transfer of applicant’s appeal to F.C.T.D. — Act to Amend Immigration Act, s. 116 providing any appeal or application for judicial review commenced pursuant to Immigration Act, s. 82.1 not set down for hearing to be heard by T.D. — S. 118 permitting C.J. to exempt any appeal from s. 116 if considering in interest of administration of justice — 20 months after issuance of Direction 17 applicant alleging violation of natural justice as not having opportunity to make representations before file transferred — Alleging loss of substantive right to have appeal heard by F.C.A., jurisdiction of which broader than that of T.D. — Motion dismissed — Within jurisdiction of C.J. to issue Direction No. 17 as power specifically granted by Act of Parliament — Delay in objecting to transfer precluding objection now.
This was an application for an order setting aside the CRDD’s decision that the applicant was not a Convention refugee, and a preliminary motion for an order quashing or varying Direction No. 17 of the Federal Court as it applied to the applicant, and directing that the matter proceed as an appeal before the Court of Appeal. Subsequent to the CRDD decision the applicant was granted leave to appeal to the Federal Court of Appeal under Immigration Act, section 82.3. The applicant filed and served a notice of appeal. An Act to amend the Immigration Act and other Acts in consequence thereof, section 116 provides that any appeal or application for judicial review that was commenced pursuant to Immigration Act, section 82.1, 82.3 or 83 was not set down for hearing prior to the coming into force of the amendments shall be heard by the Trial Division, and all such appeals shall be deemed to be applications for judicial review. Section 118 permits the Chief Justice of the Federal Court to direct that section 116 not apply in respect of any appeal, if the Chief Justice considers to be in the interest of the administration of justice to do so. On February 1, 1993, the Chief Justice issued Direction No. 17 under section 118, as a result of which the applicant’s appeal was transferred to the Trial Division and was deemed to be an application for judicial review. Although aware of the Direction, the applicant did not object to the transfer until some 20 months later. He then argued that Direction No. 17 was a denial of natural justice because he had not had an opportunity to make representations before his file was transferred to the Trial Division. His submission was that the transfer resulted in the loss of the substantive right of having his case heard by three judges who had the power to quash the Board decision and give the decision that should have been given, while in Trial Division he would appear before a single judge who cannot allow the appeal and declare the applicant a refugee, but can only send the case back for determination by a newly constituted Board.
The applicant is a citizen of Sri Lanka and a Tamil. His wife and three children are still in Sri Lanka. He claims refugee status based on a well-founded fear of persecution by reason of race (Tamil) and nationality (Sri Lankan). The applicant had been beaten by a mob during race riots in Colombo in 1983, following which he was dismissed from his employment. Thereafter he worked as a seaman until 1987 when he returned home and was approached by the Liberation Tigers of Tamil Eelam (LTTE), who forced him to work for them as a ferryman. The LTTE did not mistreat him, but did not allow him his freedom. The applicant did not support the ideological position of the Tigers and received no pay. He escaped in 1991, made his way to Canada and claimed refugee status. His wife has not been harassed by the authorities since moving to Colombo. The Board concluded that the applicant’s testimony did not contain the essential elements of the definition of Convention refugee.
Held, the preliminary motion and application for judicial review should be dismissed.
The issuance of Direction No. 17 without first affording the applicant an opportunity to make representations was not a denial of fundamental justice. Assuming that the applicant had lost a substantive right, the Chief Justice continued to have jurisdiction to issue Direction No. 17 as the power was granted by an Act of Parliament specifically allowing the Chief Justice, if he “considers it to be in the interest of the administration of justice” to determine how an “application or appeal shall be heard and disposed of.” Furthermore, the fact that the applicant waited 20 months to object to the transfer of his file precluded him from objecting on the basis that he had been denied the right to make submissions with regard to the transfer.
The Board’s reasons clearly indicated that there were a number of evidentiary factors on which its conclusion was based, even if minor errors could be found in the decision. The Board discharged its function of weighing and assessing the evidence. It considered all relevant evidence before concluding that the applicant was not a Convention refugee.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
An Act to amend the Immigration Act and other Acts in consequence thereof, S.C. 1992, c. 49, ss. 116, 118.
Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7.
Immigration Act, R.S.C., 1985, c. I-2, s. 82.1 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C. 1990, c. 8, s. 53), 82.3 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C. 1990, c. 8, s. 55), 83 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 19).
CASES JUDICIALLY CONSIDERED
APPLIED:
Xu v. Minister of Employment and Immigration (1994), 79 F.T.R. 107 (F.C.T.D.).
APPLICATION for an order setting aside CRDD’s decision that the applicant was not a Convention refugee, and a preliminary motion for an order quashing or varying Direction No. 17 of the Federal Court resulting in the transfer of the applicant’s appeal to the Trial Division, and for an order directing that the matter proceed as an appeal. Application and motion dismissed.
COUNSEL:
Nils R. Connor for applicant.
Bridget A. O’Leary for respondent.
SOLICITORS:
Nils R. Connor, Toronto, for applicant.
Deputy Attorney General of Canada for respondent.
The following are the reasons for order rendered in English by
Teitelbaum J.: This is an application for an order setting aside the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (Board) dated July 30, 1992 wherein it was determined that the applicant, Mariyanayagam Anthany, was not a Convention refugee.
The applicant is also seeking, in his application for judicial review, from the Court, a declaration that he is a Convention refugee, or in the alternative, an order referring the matter back to a differently constituted panel for a determination in accordance with such directions as the Court considers appropriate.
A number of days preceding the hearing of the application for judicial review, the applicant, through counsel, informed the Court that it was the applicant’s intention to make a preliminary motion for the following relief:
(1) An Order quashing or varying Direction No. 17 of the Federal Court, dated February 1, 1993 as it applies to the Applicant;
(2) An Order directing that this matter proceed as an appeal before the Federal Court of Appeal pursuant to the order of Mr. Justice MacGuigan dated October 11, 1992.
The following are the grounds for the preliminary motion as stated in the October 5, 1994 preliminary motion (letter of the applicant):
While the Applicant intends to make full submissions as to this motion at the time of the Hearing, a summary thereof follows:
(1) The Order of Mr. Justice MacGuigan dated December 10, 1992 in Anthany v. MEI, Court File No. 92-A-4977 stated “The application for leave to appeal is allowed.”
(2) The Applicant submits that the said Order was a final determination of a distinct proceeding (being an Application for Leave to Appeal to the Federal Court of Appeal) and that the relief granted in the Order was specific as to the nature of the subsequent proceeding and the division of the Court in which it would proceed.
(3) It is further submitted that the Hearing in this matter scheduled for October 11, 1994 is not in accordance with the Order of Mr. Justice MacGuigan of December 10, 1992 and accordingly is improper. It is submitted that the said Order still obtains and this Honourable Court ought to give it full effect.
(4) It is respectfully submitted that Direction No. 17, made pursuant to Rule 358 of the Federal Court Rules, which purported to transfer the herein matter to the Trial Division for determination is:
(a) an exercise of administrative authority and not judicial authority and hence is reviewable on this motion;
(b) outside the jurisdiction provided in Rule 358 in that the Rule ought not properly be construed to permit an administrative decision to negate a judicial order;
(c) outside the jurisdiction provided in Rule 358 in that the Rule ought not properly be construed to enable the defeat of substantive rights established by a final Order;
(d) a violation of natural justice in that the Applicant received no notice or opportunity to be heard respecting the termination of his rights under an order and the substitution of materially different rights;
(e) with all due respect, based on:
(i) the Chief Justice having misdirected himself as to the requirements set out in Rule 358. In this respect, it is pointed out that the Rule states that a transfer may be directed “if it appears just to do so”. It is submitted that the Chief Justice’s words (quoting Direction No. 17) demonstrate the he applied different criteria, specifically “that it is in the interest of the administration of justice [emphasis added]”;
(ii) a failure to take requirements of the Rule into account. Specifically, it is submitted that the requirement of “having regard to the interests of all parties” (Rule 358) was not met; and
(iii) error of law in that the Rule requires that it appear just to make a transfer between the divisions of the Court. It is respectfully submitted that the result of Direction No. 17 cannot be just in that it (1) results in the Applicant having to convince the entirety of the hearing bench as opposed to 2/3rds, (2) places the Applicant before a Court without the jurisdiction to substitute its own decision for that of the tribunal under review, and (3) treats the Applicant unfairly as compared to persons otherwise similarly situated excepting only for the fact that this matter had not yet been set down for hearing.
For a better understanding of the applicant’s preliminary motion, I believe it necessary to review the procedures filed by the applicant leading up to the hearing on the applicant’s application for judicial review.
On July 30, 1992, a decision was made by Arthur E. Harnett and Shiv S. Bajwa, members of the Refugee Division of the Immigration and Refugee Board wherein they determined that the applicant is not a Convention refugee.
On August 17, 1992, the applicant filed, into the Federal Court Registry, an application for leave made pursuant to section 82.3 of the Immigration Act [R.S.C., 1985, c. I-2 (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 19; S.C. 1990, c. 8, s. 55)] “for leave to appeal the decision of the Refugee Board members A. E. Harnett and S. S. Bajwa.”
The application for leave to appeal was presentable before the Federal Court of Canada Appeal Division.
On December 10, 1992, MacGuigan J.A. allowed the application for leave to appeal.
On December 14, 1992 the applicant filed a notice of appeal and served same on the respondent on December 16, 1992.
On February 1, 1993, the Chief Justice of the Federal Court of Canada forwarded a notice to the members of the bar and members of the public, a copy of which was sent to the applicant’s counsel, wherein he was informed that the applicant’s file was transferred to the Trial Division.
To: Members of the Bar and Members of the Public
From: Chief Justice Julius A. Isaac
Re: Applications under the Immigration Act Transitional Directions
Date: February 1, 1993
I have issued a number of Directions under section 118 of An Act to Amend the Immigration Act and other Acts in consequence thereof, to address the transitional provisions set out in sections 114, 115, 116 and 117 of the Act. Those who had applications pending in either the Court of Appeal or the Trial Division before February 1, 1993 should consult the Registry to obtain details of the Direction, if any, now governing the application.
Issued, on the same date, February 1, 1993, was Direction No. 17 which states:
DIRECTION No. 17
PURSUANT TO section 118 of An Act to amend the Immigration Act and other Acts in consequence thereof, S.C. 1992, c. 49 (“the Act”) and because I consider that it is in the interest of the administration of justice to do so,
I HEREBY DIRECT:
1. that section 116 of the Act shall not apply to those appeals listed in the schedule annexed hereto and forming part of this direction, all of which have been commenced in the Court of Appeal pursuant to section 82.3 of the Immigration Act, as that section read immediately before the coming into force of section 73 of the Act, and had not been set down for hearing before that date;
2. that each of those appeals shall be heard and disposed of by the Trial Division as an application for judicial review under section 82.1 of the Immigration Act, as though section 73 of the Act had not been enacted;
3. that the notice of appeal shall be considered to be an incomplete notice of motion;
4. that the appellant shall, within 30 days of this Direction, file an amended notice of motion in accordance with Rule 1602, and one or more affidavits as required by Rule 1603(1); and
5. that in all other respects, the Federal Court Rules and the practice and procedures of the Trial Division shall apply to those applications for judicial review.
DATED at Ottawa this 1st day of February 1993.
Among the many cases affected by the Direction No. 17 order of the Chief Justice was the case of the applicant.
As I have stated, Direction No. 17 was issued on February 1, 1993 and I have no doubt that the applicant’s counsel was made aware of it soon after its issuance as a registered letter, to this effect, was sent to applicant’s counsel.
February 1, 1993
REGISTERED
Mr. Nils R. Connor
Barrister & Solicitor
69 Elm Street
Toronto, Ontario
M5G 1H2
RE: Mariyanayagam Anthany v. M.E.I.
Court File No.: A-1621-92
Please find enclosed a direction of the Chief Justice pursuant to S. 118 of an Act to Amend the Immigration Act and other Acts in consequence thereof, S.C. 1992, c. 49.
Accordingly, the above-mentioned file has been transferred to the Trial Division of the Federal Court.
A copy of same has been sent to all.
On March 2, 1993, one month after the issuance of Direction No. 17, counsel for the applicant filed into the Federal Court Registry, to be placed before the Federal Court Trial Division, an amended originating notice of motion. From that point on, counsel for the applicant continued to file notices of motions and letters involving the present applicant before the Trial Division of the Federal Court.
On May 3, 1993, counsel filed a notice of motion requesting an extension of time to file the application record. On May 25, 1993, Mr. Justice MacKay, a judge of the Federal Court of Canada, Trial Division, on consent, granted the motion.
On May 11, 1993, counsel for the applicant wrote to the Court Administrator concerning the application record wherein he specifically speaks of “Direction 17.”
It was not until October 5, 1994, some 20 months after the issuance of Direction No. 17 by the Chief Justice that the applicant’s counsel gave notice that he requests an order quashing or varying Direction No. 17 dated February 1, 1993 on the grounds mentioned in the preliminary motion.
At the hearing, counsel were asked to make a written submission. Counsel for the applicant, in his written submission dated October 20, 1994, states, in paragraph 1:
1. Despite several grounds being advanced in my letter advising of the motion prior to the hearing, the only one ground was relied upon for adjudication at the hearing, and the issue may be stated as follows:
(A) Inasmuch as pursuant to s. 118 of the transitional provisions of the Immigration Act it was open to the Honourable Chief Justice to transfer or not to transfer this matter from the Appeal Division to the Trial Division, did the decision to do so (embodied in Direction #17) require application of the principles of natural justice?
I take this to mean that the only ground upon which the applicant’s preliminary motion is based is that inasmuch as the applicant was not given an opportunity to make submissions regarding the Chief Justice’s decision to issue Direction No. 17 transferring the applicant’s file to the Trial Division of the Federal Court, he was denied natural justice, that is, he was denied audi alteram partem, the right to make representations.
As I have stated, at no time, before October 5, 1994, did the applicant give any indication that he desired to make representations as it related to the fact that the applicant’s dossier was being transferred to the Trial Division nor that he objected to the dossier being transferred. Now, the applicant states, in paragraphs 2 to 6 of his written submissions:
2. These submissions take it as common ground that natural justice was not applied as the Applicant was provided no notice and no opportunity to be heard in respect of the decision in Direction #17.
3. As submitted at the time of the hearing, the requirement of natural justice applies where the decision is one that must be made on a judicial or quasi-judicial basis.
4. A duty to act judicially or quasi-judicially is to be inferred from the nature of the power being exercised, and particularly where (a) substantive rights of individuals are affected, or (b) where the applicable legislation requires the decision maker to consider criteria in making a determination.
R. v. Institutional Head of Beaver Creek Correctional Camp, Ex. parte MacCaud, [1969] 1 O.R. 373. [Contained in the applicants Book of Authorities at Tab 2.]
Martineau and Butlers v. Matsqui Inmate Discipline Board, (1977) 33 C.C.C. (2d) 366. [Contained in the Applicants Book of Authorities at Tab 3.]
Knapman v. Board of Health for Saltfleet Township [1954] 3 D.L.R. 760.
Lazarov v. Secretary of State of Canada [1973] F.C. 927.
5. It is submitted that point (b) in the preceding paragraph applies pursuant to transitional provisions s. 118 by virtue of the words “if the Chief Justice considers it to be in the interest of justice to do so”.
6. As to point (a) in Paragraph 4, above, it is submitted (as it was at the hearing) that the Order of Mr. Justice MacGuigan had the effect of creating the right in the Applicant herein to proceed to an appeal before the Federal Court of Appeal and the effect of Direction #17 altered that right. It is respectfully submitted that this in itself is sufficient to determine that Direction #17 affects substantive rights.
In his written submissions, the applicant goes on to state, after my request respecting differences between remedies available at the Trial Division and the Appeal Division, the following:
7. The foregoing submission notwithstanding, Your Lordship requested specific submissions respecting differences between remedies available at the Trial Division and the Appeal Division. To a certain extent this issue has been dealt with by Madam Justice Reed in Ali v. M.E.I. (April 11, 1994) IMM-700-93. It was determined therein that s. 18.1(3)(b) of the Federal Court Act (as amended) provided the same (or, indeed, broader) jurisdiction for the Trial Division to direct decisions of reviewed tribunals as was available to the Appeal Division under former s. 52(c)(i) and (d). The said sections read as follows:
18.1 (3) On an application for judicial review, the Trial division may
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, act or proceeding of a federal board, commission or other tribunal.
52. The Federal Court of Appeal may
(c) in the case of an appeal other than an appeal from the Trial Division
(i) dismiss the appeal or give the decision that should have been given …
(d) in the case of an application to review and set aside a decision of a federal board, commission or other tribunal, either dismiss the application, set aside the decision or set aside and refer the matter back to the board, commission or other tribunal for determination in accordance with such directions as it considers to be appropriate. [Justice Reed’s emphasis removed, and my own added.]
8. In making her decision in Ali Justice Reed reviewed a number of cases dealing with the issue of the Court giving directions on a redetermination by tribunals. Tellingly, her quote of a portion of Orelien and Aurelien v. Canada [1992] 1 F.C. 592includes (referring to the Court of Appeal’s jurisdiction on judicial review) the statement
“It cannot make the decision it thinks the tribunal ought to have made, although from a practical point of view, its directions may be so precise as to dictate the result of the reconsideration.” [Justice Reed’s emphasis removed.]
9. Further along, Justice Reed quotes with approval the comments of Justice Desjardins (in the Review of Administrative Action in the Federal Court of Canada: The New Style in a Pluralist Setting, Law Society of Upper Canada Special Lectures, 1992, p. 405) in part as follows:
These directions may sometimes amount to instructing the tribunal as to the decision it ought to render. Still, the court cannot, as it can in the case of appeal, deal with the merits of the case and render the decision the tribunal should have rendered. [Justice Reed’s emphasis removed, and my own added.]
10. Pursuant to the decision in Ali, and the reasoning therein summarized above, it appears that pursuant to s. 18.1(3)(b) the Trial Division has jurisdiction equivalent to that previously held by the Appeal division to issue directions on reconsiderations.
11. Nevertheless, it is respectfully submitted that the decision in Ali does not affect my submission at the hearing of this matter that the Trial Division (on judicial review) does not have the same jurisdiction as the Appeal Division (on appeal) to render the decision the tribunal should have rendered.
12. In relation to this point, it is respectfully re-iterated that the proceeding to which the Applicant herein became entitled by the operation of Justice MacGuigan’s Order and the then provisions of the Immigration Act, was to be an appeal.
13. Accordingly, it is respectfully submitted that Ali notwithstanding, the potential remedies available to the Applicant in the Trial Division pursuant to Direction #17 remain markedly less beneficial than those available in the Appeal division.
14. Specifically, while the best outcome possible at the Appeal division is an outright finding of refugee status, at the Trial Division the best outcome is yet another appearance before the tribunal which having (hypothetically) already failed to determine the matter correctly must now be relied upon to correctly apply such directions as the court may issue.
15. Accordingly, based on the foregoing, and in relation to Paragraph 4, above, it is submitted that Direction #17 places the Applicant in an identifiably and substantively worse position than (sic) if he had been allowed to proceed to the Appeal Division.
16. Moreover, as was submitted at the hearing before Your Lordship, it is respectfully submitted that the difference in possible outcomes between the two divisions has more ramifications than simply the kind of remedy itself. Where before one division the appeal begins with the premise that it is concerned with the decision that should have been rendered, while before the other division the review does not have such a consideration, the ambit of review in the latter is by that reason alone more limited than the former.
In her written submissions, counsel for respondent submits, and I could do no better than to quote from her written submissions, the following:
The Act to Amend the Immigration Act and to Amend Other Acts in Consequence Thereof, R.S. c. 28 (4th Supp.), brought into force on January 1, 1989, provided as follows:
(a) Section 82.1(1) stated that “an application or other proceeding” could be commenced under s. 18 of the Federal Court Act with respect to any decision or order made under the Immigration Act. Leave was required in order to commence the application, and there was no appeal from the decision with respect to leave;
(b) Section 82.3(1) provided for an “appeal” to the Federal Court of Appeal, with leave, from decisions of the Refugee Division.
The grounds of “appeal” set out in s. 82.3(1) were that the Refugee Division
(a) failed to observe a principle of natural justice or otherwise acted beyond or refused to exercise its jurisdiction;
(b) Erred in law in making its decision, whether or not the error appears on the face of the Record; or
(c) Based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it.
The grounds for “appeal” to the Federal Court of Appeal were exactly the same as the grounds for an application to review and set aside a decision or order, other than a decision or order of an administrative nature not required by law to be made on a judicial or quasi-judicial basis, made by or in the course of proceedings before a Federal Board, Commission or other tribunal, as set out in s. 28 of the Federal Court Act, R.S.C. 1985, c. F-7.
On February 1, 1992, s. 18.1 of the Federal Court Act, a new section added by the Act to Amend the Federal Court Act. The Crown Liability Act, the Supreme Court Act and other Acts in Consequence thereof, S.C. 1990, c. 8 (Bill C-38), together with the new sections 18.2 to 18.5, established an application for judicial review in respect of federal tribunals. The procedure established by s. 18.1 replaced the former sections 18 and 28 of the Federal Court Act.
Section 18.1(4) of the amended Federal Court Act sets out the grounds which an Applicant must establish to succeed on an application for judicial review. These grounds are very broadly stated, and generally reflect the grounds upon which judicial review could be attained under the prerogative and extraordinary remedies listed in s. 18(1) of the Federal Court Act. Furthermore, s. 18.1(4)(f) ensures that the Court may develop new grounds for review.
The Act to Amend the Federal Court Act, The Crown Liability Act, The Supreme Court Act and other Acts in Consequence Thereof, S.C. 1990, c. 8 repealed ss. 83.1(1) of the former Immigration Act, and expanded the available grounds for judicial review in immigration matters, in accordance with the amendments to the Federal Court Act. Section 55 of this Act stated as follows:
55. Paragraphs 83.3(1)(a) to (c) of the said Act, (being renumbered as paragraphs 82.3(1)(a) to (c) by chapter 28 of the 4th Supplement to the Revised Statutes of Canada, 1985), are repealed and the following substituted therefor:
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making its decision, whether or not the error appears on the face of the record;
(d) based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.
Based on the foregoing the Respondent denies the Applicant’s allegation that the “ambit of review” in the Court of Appeal is broader than the Trial Division. The respondent submits, rather, that the ambit of review is the same. Bill C-86 merely unified the judicial review procedure with respect to decisions of the Refugee Division.
It is submitted that the Applicant was not entitled to an “appeal on the merits”, prior to the transitional provisions. Section 55 of the Act to Amend the Federal Court Act, the Crown Liability Act, the Supreme Court Act and other acts in Consequence Thereof, S.C. 1990, c. 8, referred to in paragraph 19 above, clearly shows that grounds for leave to “appeal” to the Federal Court of Appeal, pursuant to s. 82.3 of the Immigration Act, were not by way of an appeal on the merits, but were grounds for judicial review.
DISCUSSION
After a careful reading of the material filed by the applicant and after careful consideration of the applicant’s oral and written submissions, I am satisfied that I cannot accept the submissions of the applicant as it relates both to his submission regarding the issue of a denial of natural justice and that the decision of the Board should be set aside and the matter returned to a differently constituted Board for a new hearing.
The main submission, in fact, the only submission on the issue of the Direction No. 17 order is that the applicant was not given the opportunity to make submissions before his dossier was transferred to the Trial Division of this Court because, as he states, he has lost a substantive right. This substantive right being one which would have permitted him to have his case heard by three judges who, in addition to being able to dismiss the “appeal” could have quashed the decision of the Board and allowed the “appeal” or could have quashed the decision of the Board and returned the file to a newly constituted Board, while in the Trial Division he would appear before “only” one judge who could not have allowed the appeal and declare the applicant a refugee.
Assuming that what the applicant submits is correct, that is, he lost a substantive right by being prevented from making his submissions before the Court of Appeal who could have allowed his appeal and declare the applicant a refugee, I am satisfied that the Chief Justice continued to have jurisdiction to issue Direction No. 17 as the power, as above-stated, was granted by an Act of Parliament specifically allowing the Chief Justice, if he “considers it to be in the interest of the administration of justice” to determine how an “application or appeal shall be heard and disposed of” ([An Act to amend the Immigration Act and other Acts in consequence thereof] S.C. 1992, c. 49, section 118, Transitional Provisions).
I agree with the submission of the respondent where respondent states, in the written submissions:
By s. 73 of An Act to Amend the Immigration Act and Other Acts in Consequence Thereof (Bill C-86) ss. 82.1 to 84.2 of the former Immigration Act, R.S.C. 28 (4th Supp.) were repealed, and the following was substituted, inter alia:
82.1 (1) An application for judicial review under the Federal Court Act with respect to any decision or order made, or any matter arising, under this Act or the rules or regulations thereunder may be commenced only with leave of a judge of the Federal Court—Trial Division.
(3) An application under this section for leave to commence an application for judicial review shall be filed with the Federal Court—Trial Division and served within fifteen days after the day on which the Applicant is notified of the decision or order or becomes aware of the other matter.
(6) Subject to subsection (7), where leave to commence an application for judicial review is granted, the application for judicial review shall be deemed to have been commenced and the judge granting leave shall fix the day and place for the hearing of the application for judicial review.
(7) In fixing a day pursuant to subsection (6), the judge shall set the matter down for a day that is no sooner than thirty days, and no later than ninety days, after the day on which leave to commence the application for judicial review was granted, unless the parties agree that the matter may be set down on an earlier day.
(8) Any application for leave to commence an application for judicial review, and any application for judicial review, under this section shall be determined without delay and in a summary way. [Underlining added.]
Section 116 of An Act to Amend the Immigration Act and other Acts in Consequence Thereof (Bill C-86) states:
116. Any application for judicial review and any appeal that was commenced pursuant to section 82.1, 82.3 or 83, as the case may be, of the Immigration Act, as that section read immediately before the coming into force of section 73 of this Act, and that had not been set down for hearing before that date, shall be heard by the Federal Court—Trial Division in accordance with sections 82.1 and 84 of that Act, as enacted by section 73 of this Act, and all such appeals shall be deemed to be applications for judicial review.
Section 118 of Bill C-86 states:
118. The Chief Justice of the Federal Court may direct that section 114, 115, 116 or 117, as the case may be, shall not apply in respect of any application or appeal if the Chief Justice considers it to be in the interest of the administration of justice to do so, and where the Chief Justice so directs, the Chief Justice shall indicate in the direction how the application or appeal shall be heard and disposed of.
Pursuant to s. 116 and s. 118 of Bill C-86, the Chief Justice issued a direction (Direction 17) wherein the applicant’s appeal was transferred to the Trial Division and was deemed to be an application for judicial review in the Trial Division.
In the case of Xu v. Minister of Employment and Immigration (1994), 79 F.T.R. 107 (F.C.T.D.), a case where the facts are very similar to the facts of this case, the applicant had submitted that the transitional provisions (the same provisions that are applicable before me) infringe his rights under section 7 of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] because they eliminate his right to an appeal ”and therefore the possible remedy of having the Court of Appeal give the decision the Refugee Division should have given, namely that he is a Convention refugee“ (the same argument as made before me), the Associate Chief Justice states, at page 110, as it relates to the issue of substantive rights:
There are two preliminary issues. First, the applicant contends that the provisions are substantive in nature and relies on the common law presumptions against the retrospective operation of substantive legislation and interference with vested rights … .
In my view, any common law presumptions against interference with vested rights and the retrospective operation of legislation are answered in this case by the clear and unequivocal language of the statute. The express wording of the transitional provisions, in particular s. 116, deems all appeals to be judicial review applications and the grounds of review set out in s. 18.1 of the Federal Court Act are to apply.
Although the applicant before me does not argue section 7 of the Charter, nevertheless the case of Xu (supra) is most applicable. On pages 111-112 of the decision, the Associate Chief Justice states:
The next question which this court must determine is whether the principles of fundamental justice are denied by the procedures set out in the impugned transitional provisions. In Singh, Madame Justice Wilson stated at p. 464:
“All counsel were agreed that at a minimum the concept of ‘fundamental justice’ as it appears in s. 7 of the Charter includes the notion of procedural fairness articulated by Fauteux, C.J.C., in Duke v. The Queen (1972), 28 D.L.R. (3d) 129; 7 C.C.C. (2d) 474; [1972] S.C.R. 917. At p. 134 D.L.R., p. 923 S.C.R., he said:
‘Under section 2(e) of the Bill of Rights no law of Canada shall be construed or applied so as to deprive him of a “fair hearing in accordance with the principles of fundamental justice”. Without attempting to formulate any final definition of those words, I would take them to mean, generally, that the tribunal which adjudicates upon his rights must act fairly, in good faith, without bias and in a judicial temper, and must give to him the opportunity adequately to state his case.’
Do the procedures set out in the Act for the adjudication of refugee status claims meet this test of procedural fairness? Do they provide an adequate opportunity for a refugee claimant to state his case and know the case he has to meet? This seems to be the question we have to answer …” (Emphasis added)
Applying those principles to the facts before me, I am unable to conclude the transitional provisions, by deeming appeals to be judicial review applications, deny the applicant the fundamental justice to which he is entitled under s. 7 of the Charter. There is no support for the proposition that the principles of fundamental justice include a right of appeal.
At pages 112-113, the Associate Chief Justice states:
Furthermore, I am satisfied the applicant’s rights under s. 7 of the Charter are well protected by the judicial review procedures set out in the Federal Court Act. Section 18.1(3) and (4) of the Act provide as follows:
“18.1 (3) On an application for judicial review, the Trial Division may
(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or
(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.
(4) The Trial Division may grant relief under subs. (3) if it is satisfied that the federal board, commission or other tribunal
(a) acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction;
(b) failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe;
(c) erred in law in making its decision or an order, whether or not the error appears on the face of the record;
(d) based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it;
(e) acted, or failed to act, by reason of fraud or perjured evidence; or
(f) acted in any other way that was contrary to law.“
Clearly, the grounds for judicial review in s. 18.1 are quite extensive. Rather than infringing a refugee claimant’s s. 7 rights, it seems to me the procedure of judicial review to which refugee claimants are entitled under the impugned transitional provisions safeguard those rights, in a manner entirely consistent with the principles of fundamental justice. The applicant’s right to have his Convention refugee status determined by a tribunal acting fairly, in good faith, without bias and in a judicial temper, as well as his right to have an opportunity to adequately state his case, are not adversely affected in any way.
Therefore, I am satisfied that by the Chief Justice issuing Direction No. 17 the applicant was not denied the fundamental justice to which he alleges he may have been entitled when he was not afforded the opportunity to make submissions before his dossier was transferred to the Trial Division of the Federal Court.
In addition, and as I have stated, the applicant, until October 5, 1994, failed to object to his dossier being referred to the Trial Division. This, I am satisfied, now precludes him from objecting on the basis that he was denied the right to make submissions with regard to the transfer to the Trial Division.
As I have stated, I am not convinced that the decision of the Board dated July 30, 1992 should be set aside.
The applicant is a citizen of Sri Lanka and an ethnic Tamil. At the time of his hearing he was 40 years old. The applicant is married and has three children. His wife and children are still in Sri Lanka. The applicant left Sri Lanka in June of 1991 and arrived in Canada in January of 1992, at which time he made his claim to refugee status. The applicant bases his Convention refugee claim on a well-founded fear of persecution by reason of race, as a Tamil, and nationality, as a citizen of Sri Lanka.
The applicant worked as a seaman for the Ceylon Shipping Corporation of Colombo, Sri Lanka from 1975 to 1983.
The applicant indicated that he was attacked and beaten by a Sinhalese mob during race riots in Colombo in 1983. Following the racial unrest in Sri Lanka the applicant was dismissed from his employment in July, 1983.
In May of 1984, the applicant joined a Greek shipping company. He was employed as a seaman, travelling from country to country until February 1987, when he returned to his family home in Delf Jaffna.
In November of 1987, the applicant was approached by the Liberation Tigers of Tamil Eelam (LTTE), who knew the applicant was an experienced seaman and was forced to sail a boat for the Tigers from Delf Island to Rameswariamit, India (paragraph 6(vi) applicant’s affidavit dated November 2, 1992). The applicant indicated that his first trip for the Tigers was to ferry 60 wounded Tigers to Rameswariamit. The applicant also indicated that once he began sailing a boat for the Tigers he was not able to refuse to do so and as such remained in the forced employ of the LTTE as a ferryman until 1991. The applicant stated that he did not support the ideological position of the Tigers and did not support an independent state for the Tamils.
The applicant stated that he received no pay from the Tigers and lived on his savings. When not at sea, the applicant lived with the Tigers in Punguduthua, Sri Lanka. The applicant was not allowed to see his family, but his wife was permitted to visit him (paragraph 6(ix) of affidavit). The applicant indicated he was not mistreated by the Tigers, but was not allowed the freedom to go about on his own. He stated that he was allowed to accompany Tiger members when they would sightsee in Rameswariamit.
By 1991, the applicant’s savings had been depleted and coast guard patrols between Sri Lanka and Rameswariamit intensified so that travel became more difficult and dangerous.
In April, 1991, the applicant escaped from the LTTE in Punguduthua and fled to Colombo, because he knew the area well.
The applicant indicated that in June of 1991, because he feared the LTTE and possible discovery of his links to them, he signed on as a seaman aboard a Greek ship, the destination of which he did not know, and surrendered his passport and seaman’s documents to the captain.
The ship sailed to Bombay, Karachi, Dubai, Kuwait and landed in Boston in January 1992. When the applicant became aware that the ship was taking on cargo bound for Colombo, he left his ship. The applicant added that the ship’s captain refused to return his documents, as the captain regarded his departure as a breach of contract. The applicant travelled to New York City, then to Buffalo. He entered Canada at Niagara Falls in January 1992, where he made his refugee claim.
At the hearing, the applicant indicated that he had been in touch with his wife and that she had advised him that she has not been harassed by the authorities since moving to Colombo from the Jaffna area. As I have stated, the applicant’s wife and children are still in Sri Lanka.
DECISION OF THE CONVENTION REFUGEE DETERMINATION DIVISION—IMMIGRATION AND REFUGEE BOARD
The Board indicated that although the applicant told his story without exaggeration and embellishment, for the reasons referred to in its decision, the Board was unable to determine that the applicant’s testimony contained the essential elements of the definition of Convention refugee and concluded that the applicant did not have good grounds for fearing persecution for any of the reasons set out in the definition and therefore was not a Convention refugee.
The applicant now seeks to have that decision set aside on the grounds that the Board erred in that there are several misstatements of evidence in the Board’s decision. In fact, the applicant states there are six misstatements of facts.
I do not believe it necessary to review the entire submission of the applicant. Suffice it to say that I am satisfied, after a reading of the documents found in this dossier, that the Board’s reasons clearly indicate there were a number of evidentiary factors on which its conclusion was based, even if minor errors are to be found in the decision. I am satisfied the Board discharged its function of weighing and assessing the evidence before it in making its decision. I am satisfied that the Board considered all the relevant evidence before concluding that the applicant is not a Convention refugee. There is no error which would justify my intervention.
The application for judicial review is denied.