A-732-80
Hector Ivan Olguin Herrera (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Heald and Urie JJ. and Kelly
D.J.—Toronto, April 8; Ottawa, April 27, 1981.
Judicial review — Immigration — Application to review
and set aside decision of the Immigration Appeal Board
refusing to allow an application to proceed for redetermination
of refugee status — Whether the Board was justified in
considering an application for permanent residence — Whether
the finding of the Board was supported by evidence — Wheth
er it demonstrated a misunderstanding of the question it was
required to answer — Immigration Act, 1976, S.C. 1976-77, c.
52, ss. 45(1), 70 — Federal Court Act, R.S.C. 1970 (2nd
Supp.). c. 10, s. 28.
This is a section 28 application to review and set aside the
Immigration Appeal Board's decision refusing to allow the
applicant's application for redetermination of his claim as a
Convention refugee to proceed. Counsel for the applicant sub
mitted that since the Board was restricted in its consideration
to material referred to in section 70 of the Act, its consideration
of an application for permanent residence impaired its decision.
He further submitted that the Board's finding of improbability
.. that the applicant was able to obtain a passport in the
short period of two days considering a certificate of good
conduct has to be obtained first" amounts to a finding without
any evidence to support it. He finally submitted that the Board,
in deciding that the applicant did not have a well-founded fear
of persecution for political reasons, misunderstood the question
it was required to answer.
Held, the application is dismissed. In the light of the inter
change between the officer presiding at the examination and
counsel and of the correspondence which followed, the officer
was justified in considering that counsel wished to introduce the
application as part of the examination proceedings and that, as
such, she was obliged to send it forward as part of the tran
script: receiving it in this manner the Board was justified—in
fact it was required—to consider it. With respect to the second
submission by counsel, the Board placed no weight on these
statements in reaching its decision. Whether or not the Board
accepted the evidence referred to in the statements, the Board
did rely on other unquestioned parts of the evidence which
supported the conclusion to refuse to allow the application for
redetermination. Taken in its totality the decision of the Board
indicates that the Board properly understood the nature of the
finding it was required to make and did not fall into the alleged
errors in doing so.
Also, per Heald J.: The knowledge of the Board concerning
the necessity for a passport applicant in Chile to obtain a good
conduct certificate is in the category of general knowledge
acquired by the Board from time to time in carrying out its
statutory duties as envisaged by the Maslej case.
Maslej v. Minister of Manpower and Immigration [1977]
1 F.C. 194, applied. Gonzalez v. Minister of Employment
and Immigration [1981] 2 F.C. 781, distinguished.
APPLICATION for judicial review.
COUNSEL:
B. Knazan for applicant.
M. Thomas for respondent.
SOLICITORS:
Knazan, Jackman & Goodman, Toronto, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: I have read the reasons for judgment
herein of my brother Kelly D.J. I agree with the
result which he proposes and with his reasons for
arriving at that conclusion. I wish only to add
some comments with respect to the Board's finding
of improbability "... that the applicant was able
to obtain a passport in the short period of two days
considering a certificate of good conduct has to be
obtained first." As I understood him, applicant's
counsel submitted that since there was no evidence
in this case that it was necessary to obtain a
certificate of good conduct before obtaining a
Chilean passport and since there was no indication
from its reasons that the Board had acquired this
knowledge through experience in other cases, this
finding by the Board amounts to a finding without
any evidence to support it, which would so taint
the proceedings before the Board as to require its
decision to be set aside. In support of this position,
counsel relied on the decision of this Court in the
case of Gonzalez v. Minister of Employment and
Immigration supra page 781.
In that case the Court was of the view:
1. That the information in question was not the
sort of information of which judicial notice could
be taken in proceedings before a Court nor was it
of the general character well known to the Board
and to the public referred to in the Maslej case 1;
and
2. That this information was relied on in a
manner adverse to the applicant.
So far as number 2 supra is concerned, I agree
with my brother Kelly that it does not appear,
reading the Board's decision as a whole in this
case, that it relied on this information in reaching
its decision.
So far as number 1 supra is concerned, an
analysis of the information relied on in the Gon-
zalez case (supra) serves to distinguish that case
from the case at bar. In that case, the information
was to the effect:
(a) that the Chilean military authorities would
not inflict the persecution suffered by the appli
cant on someone who had engaged in political
activities similar to the applicant (those activi
ties being described as minimal prior to Septem-
ber 1973); and
(b) that a family was not allowed to visit some
one in jail in Chile nor would a prisoner be
released for a short period.
It is my opinion that the above information is quite
different in character from the information in the
case at bar. In my view, the knowledge of the
Board concerning the necessity for a passport
applicant in Chile . to obtain a good conduct certifi
cate is in the category of general knowledge
acquired by the Board from time to time in carry
ing out its statutory duties as envisaged by the
Maslej case (supra).
For these reasons, in addition to the reasons
given by my brother Kelly, I would dismiss the
section 28 application.
* * *
URIE J.: I concur.
* * *
The following are the reasons for judgment
rendered in English by
KELLY D.J.: In this section 28 application the
applicant seeks to set aside a decision of the Immi-
' Maslej v. Minister of Manpower and Immigration [1977]
1 F.C. 194.
gration Appeal Board made on 15th October 1980
whereby the Board refused to allow the applicant's
application for redetermination of his claim as a
Convention refugee to proceed.
I am of the opinion that the errors alleged, by
counsel of the applicant, to vitiate the proceedings
before the Immigration Appeal Board taken sepa
rately or together do not constitute grounds for
this Court to set aside the decision of the Board.
Counsel for the applicant has submitted that the
Board erred in law in considering an "Application
for Permanent Residence" which was not properly
before it. The circumstances by reason of which
that application came to the attention of the Board
are significant; at the examination under oath of
the applicant pursuant to section 45(1) of the
Immigration Act, 1976, S.C. 1976-77, c. 52, at
which John Tidball, a student at law associated
with the Community and Legal Aid Services Pro
gramme appeared as counsel for the applicant,
reference was made to such an application. The
transcript of the examination held on 20th Novem-
ber 1979 reads in part as follows:
SENIOR IMMIGRATION OFFICER: This examination is
resumed. All the same persons are present.
Mr. Olguin, your Counsel has indicated that you do not have
your completed application for permanent residence but that
you will be submitting it in the future.
I have one question for you; were the circumstances of your
father's death, did they have anything to do with his political
involvements?
MR. OLGUIN: No.
SENIOR IMMIGRATION OFFICER: Do you have additional
documents or evidence to present?
COUNSEL: Not at this time. I will be making written
submissions.
SENIOR IMMIGRATION OFFICER: Mr. Olguin, do you have
anything further that you would like to add at this time?
MR. OLGUIN: No.
SENIOR IMMIGRATION OFFICER: Your counsel has indicated
that you will be forwarding additional material. The record of
the proceedings will be forwarded to you by this office and at
that time in the covering letter there will be a date by which I
would expect to receive this additional material. When I receive
it I will then forward the record of this examination to the
Refugee Committee in Ottawa.
Under date of 4th February 1980 Mr. Tidball
directed a letter to the senior immigration officer
before whom the examination was conducted
which letter reads as follows:
Dear Miss Harbin:
Re: Refugee Claimant Hector Ivan Olguin
M.E.I. File Number 3740-7255
Enclosed please find Mr. Olguin's completed Application for
Permanent Residence, an affidavit of corrections relating to the
Examination Under Oath and my submissions relating to Mr.
Olguin's claim to Convention refugee status. I trust that every
thing is in order and that the transcript and these additions can
be sent on to the Advisory Committee. Thank you.
Sincerely,
John Tidball
Community and Legal Aid Services
Programme
Before this Court, counsel for the applicant
contended that, since the Board was restricted in
its consideration to material referred to in section
70, its consideration of the application for perma
nent residence impaired its decision.
In the light of the interchange between the
officer presiding at the examination and counsel
and of the correspondence which followed, it is my
opinion that the officer was justified in considering
that counsel wished to introduce the application as
part of the examination proceedings and that, as
such, she was obliged to send it forward as part of
the transcript: receiving it in this manner the
Board was justified—in fact it was required—to
consider it.
The second and third attacks made upon the
Board's decision related to the following state
ments appearing in the written reasons of the
Board:
The Board also finds it improbable that the applicant was able
to obtain a passport in the short period of two days considering
a certificate of good conduct has to be obtained first. It is also
difficult for the Board to believe that the applicant was able to
place his thumbprint and sign the passport before it was
completed.
Both of these statements seem to cast doubt on
the credibility of the respective pieces of evidence
to which they refer. Neither appears to have
caused the Board to question the credibility of the
applicant himself in respect of other matters: the
acceptance or rejection of either or both of the said
statements does not appear to have been a factor
of any significance in the Board's decision on the
issue before it.
No doubt the first of the two statements can be
read as expressing a conclusion in reaching which
the Board acted on the strength of facts or condi
tions not extracted from the evidence properly
before it. Nevertheless, on the reading of the
Board's decision as a whole, I consider that the
Board placed no weight on these statements in
reaching its decision. Whether or not the Board
accepted the evidence referred to in the state
ments, the Board did rely on other unquestioned
parts of the evidence which, in my opinion support
ed the conclusion to refuse to allow the application
for redetermination.
Finally, counsel for the applicant submitted that
the Board, in stating in its decision "The Board is
of the opinion that Mr. Olguin does not have a
well-founded fear of persecution for political rea
sons", demonstrated a misunderstanding of the
question it was required to resolve.
Doubtless the question the Board was required
to decide was whether "there were reasonable
grounds to believe that a claim could, upon the
hearing of the application be established". I do not
consider that the use of the truncated version of
the requirements essential to the proof of the
applicant's claim demonstrates that the Board
erred in the test it applied. The same words were
used by the applicant in his examination to
describe the foundation of his claim for refugee
status. Taken in its totality the decision of the
Board indicates that the Board properly under
stood the nature of the finding it was required to
make and did not fall into the alleged errors in so
doing.
I would dismiss the application.
* * *
URIE J.: I concur.
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.