A-440-89
Minister of Employment and Immigration (Appli-
cant)
v.
Norbert Timothy Letshou-Olembo (Respondent)
INDEXED AS: CANADA (MINISTER OF EMPLOYMENT AND
IMMIGRATION) v. EETSHOU-OLEMBO (C.A.)
Court of Appeal, Marceau, Hugessen and Mac-
Guigan B.A.—Montreal, March 28; Ottawa, May
8, 1990.
Immigration — Refugee status — Application to set aside
referral of refugee status claim to Refugee Division — Claim
ant granted refugee status in Britain — Adjudicator and
member of Refugee Division finding claim admissible as cred
ible basis for claim based on fear of persecution in Britain by
former countrymen, although claimant not seeking police pro
tection — Fear of persecution linked to means of protection
Lack of available protection essence of fear motivating refugee
— Positive and credible evidence of basis of reasonable fear of
persecution necessary to support finding claim eligible.
Judicial review — Applications to review — Application to
set aside referral of refugee status claim to Refugee Division
after claim found admissible based on fear of persecution in
country of refuge — Judicial review of positive decision on
eligibility based on exception in Immigration Act, s. 46.01(2)
legitimized by finality of decision — Review limited to mani
fest error of law causing misunderstanding of purpose of
inquiry.
This was an application by the Minister to set aside the
referral of a claim for refugee status to the Refugee Division
after it was found to have a credible basis. The respondent, a
Zairian national, was granted refugee status first in the Congo
and later in England. While in London, he collaborated with
Amnesty International and served as secretary to the Zairian
Refugee Action Group, activities not approved of by the Zaire
government. He learned of a plot to kidnap and possibly kill
him, but made no effort to seek protection from British police.
Upon securing travel documents under the United Nations
Convention Relating to the Status of Refugees, he came to
Canada and claimed refugee status. The respondent's claim
that he feared persecution in the United Kingdom was accepted
and referred to adjudication. Under Canadian law, the claim of
a person who has been granted refugee status elsewhere is
inadmissible except in specific circumstances. Under Immigra
tion Act, subsection 46.01(2), a Convention refugee claimant is
eligible to have a claim determined by the Refugee Division if
he has a credible basis for a well-founded fear of persecution
for reasons of race, religion, nationality, membership in a
particular social group or political opinion in the country that
recognized him as a Convention refugee. The respondent
argued that since subparagraph 2(1)(a)(i) of the definition of
"Convention refugee" (which requires an inability to seek
protection of his country) is not incorporated in subsection
46.01(2), the investigators should not have been concerned with
the absence of request for protection from the authorities of the
country of refuge. The issues were whether the Court had
jurisdiction to review a decision holding a claim admissible, and
whether the decision should be set aside.
Held, the application should be allowed.
A favourable decision as to admissibility of a claim is subject
to judicial review. The ruling on admissibility is not a merely
preparatory ruling like the referral decision from which it
results, but is itself a final decision which has immediate
substantive consequences and which the Refugee Division
cannot revoke. The determination of the merits of the allega
tion of fear on which this final decision depends must be made
in accordance with the same "credible basis" standard appli
cable in deciding on the credibility of the claim itself. The
investigators only had to determine whether they could find any
basis for a fear of persecution in his country of refuge. The
scope of review must be limited to a manifest error of law that
may have caused a misunderstanding of the purpose of the
inquiry.
The finding on the eligibility of the respondent's claim was
not based on an adequate determination as to the existence of a
credible basis for the reasonable fear he said he had. A fear of
persecution cannot be separated from the means of protection.
The lack of available protection is the very essence of the fear
motivating a refugee. In order to find that the respondent's
claim was eligible, some positive and credible evidence of a
basis for the reasonable fear of persecution in the United
Kingdom was required, not simply reasoning in the abstract as
to the likelihood that the United Kingdom would be unable to
provide the respondent with complete protection.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Immigration Act, R.S.C., 1985, c. 1-2, s. 2 (as am. by
R.S.C., 1985 (4th Supp.), c. 28, s. 1), 46(1) (as am.
idem, s. 14), 46.01 (as enacted idem.), 46.04 (as
enacted idem).
United Nations Convention relating to the Status of
Refugees, July 28, 1951, [1969] Can. T.S. No. 6,
art. 28.
AUTHORS CITED
Goodwin-Gill, Guy S. The Refugee in International Law,
Oxford: Clarendon Press, 1983.
COUNSEL:
Joanne Granger for applicant.
William Sloan for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Sloan, Deveaux & Associes, Montreal, for
respondent.
The following is the English version of the
reasons for judgment rendered by
MARCEAU J.A.: The decision at issue in this
application to review and set aside was rendered
pursuant to the Immigration Act, R.S.C., 1985, c.
1-2, as amended. It comes from an adjudicator and
a member of the Refugee Division, who after
finding that the respondent's claim for refugee
status was admissible, referred it to the Refugee
Division since it had the credible basis necessary
for reference to adjudication. It is thus a decision
made pursuant to subsection 46(1) [as am. by
R.S.C., 1985 (4th Supp.), c. 28, s. 14] of the
Immigration Act (hereinafter "the Act"), which
reads as follows:
46. (1) Where an inquiry is continued or a hearing is held
before an adjudicator and a member of the Refugee Division,
(a) the adjudicator shall, in the case of an inquiry, determine
whether the claimant should be permitted to come into
Canada or to remain therein, as the case may be;
(b) the adjudicator and the member shall determine whether
the claimant is eligible to have the claim determined by the
Refugee Division; and
(c) if either the adjudicator or the member or both deter
mine that the claimant is so eligible, they shall determine
whether the claimant has a credible basis for the claim.
It is the first part of the decision, that dealing
with eligibility, which the Minister is specifically
challenging, but the challenge naturally affects
indirectly the second part which under the Act was
directly subject to it. This will become clearer on
reviewing the facts.
The respondent was born in Zaire, in Africa, in
1954 and has always retained his Zairian national
ity. In 1980 he left his country through fear of
reprisals by the authorities and sought refuge in
the Congo, where the Office of the United Nations
High Commissioner for Refugees granted him
refugee status. In June 1986 he left the Congo
with his wife and their child for England, and
immediately claimed official refugee status from
the British authorities. His claim was finally
allowed in 1988. Soon afterwards, he obtained
travel documents under Article 28 of the United
Nations Convention relating to the Status of
Refugees and left for Canada without his family.'
The respondent arrived in Canada in February
1989. Although he had a valid travel document, he
promptly claimed refugee status again. Under
Canadian law (which is also consistent with the
practice of several other jurisdictions 2 ), in princi
ple the claim of a person who has already had his
refugee status recognized elsewhere is inadmis
sible, and this inadmissibility can only be lifted in
specific circumstances, the rules applicable to the
situation being contained in paragraph 46.01(1)(a)
[as enacted idem] and subsection 46.01(2) [as
enacted idem] of the Act, which reads as follows:
46.01 (1) A person who claims to be a Convention refugee is
not eligible to have the claim determined by the Refugee
Division if
(a) the claimant has been recognized by any country, other
than Canada, as a Convention refugee and has been issued a
' Article 28 of the Convention, signed at Geneva on July 28,
1951, states the following:
Article 28
TRAVEL DOCUMENTS
1. The Contracting States shall issue to refugees lawfully
staying in their territory travel documents for the purpose of
travel outside their territory, unless compelling reasons of
national security or public order otherwise require, and the
provisions of the Schedule to this Convention shall apply with
respect to such documents. The Contracting States may issue
such a travel document to any other refugee in their territo
ry; they shall in particular give sympathetic consideration to
the issue of such a travel document to refugees in their
territory who are unable to obtain a travel document from
the country of their lawful residence.
2. Travel documents issued to refugees under previous inter
national agreements by parties thereto shall be recognized
and treated by the Contracting States in the same way as if
they had been issued pursuant to this article.
2 See Guy S. Goodwin-Gill, The Refugee in International
Law (Oxford University Press, 1983), at p. 52, under the
heading "THE COUNTRY OF FIRST ASYLUM PRINCIPLE".
valid and subsisting travel document by that country pursu
ant to Article 28 of the Convention;
(2) Notwithstanding paragraph (1)(a), a person is eligible to
have a claim determined by the Refugee Division if, in the
opinion of the adjudicator or the member of the Refugee
Division considering the claim, the person has a credible basis
for a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or
political opinion in the country that recognized the person as a
Covention refugee.
At the initial hearing of his claim the respondent
naturally argued that he fell within the exception
contained in subsection 46.01(2). The member of
the Refugee Division taking part in the hearing
with the adjudicator accepted the respondent's
claim that he feared persecution in the United
Kingdom so that, although the adjudicator took
the opposite view, the claim was at once referred
to adjudication, and the Minister formally admit
ted that there was a credible basis for the respond
ent's fear of persecution in his own country.' A
decision of referral to the Refugee Division was
thus made immediately.
The Minister then asked this Court to vacate the
decision of referral, arguing that the member's
favourable conclusion was in error and resulted
from a misunderstanding of the parameters of the
exception in subsection 46.01(2) of the Act.
This is to my knowledge the first time that the
Court has had before it an application relating to
this provision in subsection 46.01(2) of the Act, a
provision allowing a person who has already found
a country of refuge to claim refugee status here,
one contemplating in its present form the very first
version of Bill C-55, as tabled in 1987. It is thus
understandable that the Court should consider for
a moment the meaning of judicial review of a
decison which has held a claim admissible under
this exceptional provision: for while a negative
decision on the admissibility of a claim or its
credibility is certainly subject to review under
3 As he was authorized to do by s. 460.1(7) [as enacted
idem]:
46.01 . . .
(7) If the Minister is of the opinion that the claimant has
a credible basis for the claim and informs the adjudicator
and the member of the Refugee Division of that opinion, the
adjudicator and the member shall determine that the claim
ant has a credible basis for the claim.
section 28 of the Federal Court Act [R.S.C., 1985,
c. F-7], this may definitely be doubted in the case
of a favourable decision. In view of the procedure
in the Act, which for the sake of administrative
efficiency is simply seeking at the initial stage to
identify applications which deserve consideration
because they have some chance of success, and for
this purpose is prepared to accept the favourable
opinion of only one of two officials, it is at first
sight difficult to see why it is necessary to have
judicial review before the Refugee Division has
made a ruling. It is understandable, however, when
we realize that the ruling by the adjudicator and
the member of the Refugee Division on admissibil
ity is not—strange as it may seem—a simply
preparatory ruling like the referral decision from
which it results, but is itself a final decision which
has substantive consequences at once and which
the Refugee Division cannot revoke.'
It should also be clearly noted at the outset that
the determination of the merits of the allegation of
fear on which this final decision depends must be
made in accordance with the same "credible basis"
standard applicable in deciding on the credibility
of the claim itself. The investigators did not have
to determine whether the claimant had a well-
founded fear of persecution in his country of
refuge, only whether they could find any basis for
his argument. This also is somewhat surprising,
but I suppose the thinking was that the speedy and
summary determination they wished to associate
The fact that the Refugee Division is not empowered to
revoke the eligibility ruling is indicated by the fact that in subs.
46.01(2) the Act, does not mention any search for evidence "on
which the Refugee Division might determine", as it does in
subs. 46.01(6) dealing with credibility. It can also be seen that
in subs. 46.04(2) [as enacted idem] the Act refers to the
opinion not of the Refugee Division but of the investigators at
the initial stage; it reads as follows:
46.04 . . .
(2) Notwithstanding paragraph (1 (b), a person is eligible
to apply for landing under subsection (1) if, in the opinion of
the adjudicator or the member of the Refugee Division who
considered the person's claim to be a Convention refugee, the
person has a credible basis for a well-founded fear of perse
cution for reasons of race, religion, nationality, membership
in a particular social group or political opinion in the country
that recognized the person as a Convention refugee. [My
emphasis.]
with this preliminary stage of the process would
otherwise be imperilled and that it was best in
cases of uncertainty to favour the claimant, as
there was basically no reason in cases of strict
necessity to be careful to admit only refugees
coming directly from their own countries.
In any case, what is clear in this Court is that
while judicial review of a positive decision on
eligibility based on the exception in subsection
46.01(2) of the Act is legitimized by the fact that
the decision is final, this review can still only be
very limited in scope. Only the finding of a mani
fest error of law that may have caused a misunder
standing of the purpose of the inquiry could
authorize the Court to intervene.
I had great hesitation before agreeing with the
applicant Minister that the case at issue here is
one which does in fact require the intervention of
this Court. The difficulty arises from the fact that
the error of law or comprehension that must final
ly be attributed to the member of the Refugee
Division not only was not committed by him overt
ly but is even indicated in his initial remarks as
something to be avoided. We will see presently
what I mean.
The respondent told the investigators that he
was engaged in the Congo and in England in social
and humanitarian activities with political conse
quences, which were not approved by the Zaire
government. He acted as representative in London
of a movement known as "Massada"; he also
collaborated with Amnesty International, and
most importantly, he was the secretary of an
organization of Zairian refugees known as "Zai-
rag" (Zairian Refugee Action Group). The presi
dent of Zairag and he learned of the existence of a
plan by a former Zaire military attache to kidnap
and possibly kill them. The respondent never
sought special protection from the British police. It
was the president of Zairag who undertook to
apply for a weapons permit for himself and all
members of his group, but the application for the
group was not granted and respondent took no
further action himself. He was unable to say
whether the British police would or could protect
him against the dangers he feared, but in any case
he felt safer in Canada.
It was the fact that he made no effort to seek
protection in his country of refuge that struck the
two investigators and became the focus of their
concern, as neither doubted the credibility of the
respondent as a witness or the plausibility of his
story.
Counsel for the respondent argued that this
concern by the investigators was not legitimate.
His argument—repeated in this Court—was that
the question of protection had nothing to do with
the case, since subparagraph (a)(i) of the defini
tion of "Convention refugee" in subsection 2(1)
[as am. idem, s. 1], 5 which deals with the question
of whether the claimant can or may seek the
protection of his country, is not incorporated by
reference or otherwise in subsection 46.01(2). In
his submission, the determination the investigators
at the initial stage were required to make on the
credible basis standard should be concerned only
with the other aspects of the definition of
"refugee", namely the existence of a fear of perse
cution, its reasonableness, its basis, namely his
race, religion, nationality, political opinions or
social group, but without reference to the availa
bility of or request for protection from the authori
ties of the country of refuge.
Counsel for the respondent's argument was
untenable: we do not see how it is possible to speak
of a reasonable fear of persecution without refer
ence to the means of protection at his disposal. The
lack of available protection is the very essence of
the fear motivating a refugee. The reason subpara-
graph (a)(i) of the definition of "refugee" was not
reproduced in subsection 46.01(2) is that clearly
there could be no question of a person who was
unable or unwilling "to avail himself of the protec
tion" of the country to which he had fled for
refuge.
5 The wording of which is as follows:
2. (1) . . .
"Convention refugee" means any person who
(a) by reason of a well-founded fear of persecution for
reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(i) is outside the country of the person's nationality and
is unable or, by reason of that fear, is unwilling to avail
himself of the protection of that country ....
Not only the adjudicator but the member of the
Refugee Division himself was quick to reject coun
sel for the respondent's argument, in very clear
language:
In the area of our concern, that of refugees, we feel that the
concept of "persecution" which is central to this area cannot be
separated from that of "protection", and that it is arbitrary to
separate them by playing with the words and paragraphs as has
just been done here.
It transpired, however, that despite this initial
rejection the member of the Refugee Division did
not seem to have shaken off the influence of
counsel for the respondent's argument. As we saw,
the respondent admitted never having personally
sought the protection of the police in his country of
refuge and was not in a position to say whether
those police had taken or were prepared to take
steps to provide him with adequate protection. The
fact that this complete absence of evidence on the
availability of protection the respondent could
obtain in his country of refuge did not seem sig
nificant to the member of the Refugee Division
was due to the following reasoning:
There are acts of persecution which even states as vigilant as
the United Kingdom cannot prevent—such as acts of terrorism,
which are precisely what the plaintiff feels threatened by.
In such a context we feel it is really not important whether
the plaintiffs claims are realistic or whether he will feel
persecuted in any country he goes to. We feel it is likely that
the United Kingdom cannot protect the claimant as it seems
reasonable for him to seek protection in Canada, as it is not
inconceivable that, simply because it is further away from the
alleged persecutors or because it is less closely connected with
Zaire than the United Kingdom—see the plaintiff's testimony
and the arguments of his counsel—Canadian society may pro
vide Mr. Letshou-Olembo with better protection.
What the member of the Refugee Division was
required to determine in order to find that the
respondent's claim was eligible was that a credible
basis existed for the reasonable fear he said he had
of being persecuted in the United Kingdom. This
required, in my opinion, some positive and credible
evidence, not simply reasoning in the abstract as to
the likelihood that the United Kingdom would be
unable to provide the respondent with complete
protection, even accepting the notion that it would
not be completely inconceivable that Canada could
provide better protection.
In my view, the finding by the member of the
Refugee Division on the eligibility of the respond
ent's claim was not based on an adequate determi
nation as to the existence of a credible basis for the
reasonable fear he said he had. The member's
decision and that resulting from it were not made
in accordance with the Act.
These in my opinion are the reasons why the
Court should allow this application to review and
set aside, set aside the initial decision made on
July 27, 1989 on the eligibility and credible basis
of the respondent's claim and refer the matter
back to an adjudicator and a member of the
Refugee Division to be again decided by them on
the basis of the record as it stands, but taking into
account the observations contained in these
reasons.
HUGESSEN J.A.: I concur.
MACGuIGAN J.A.: I concur.
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