Supreme Court of Canada

Kwiatkowsky v. Minister of Employment and Immigration, [1982] 2 S.C.R. 856

Date: 1982-12-21

Jan Piotr Kwiatkowsky Appellant;

and

Minister of Employment and Immigration Respondent;

and

Attorney General of Canada Mis en cause.

File No.: 16239.

1982: May 13; 1982: December 21.

Present: Dickson, Estey, Mclntyre, Lamer and Wilson JJ.

ON APPEAL FROM THE FEDERAL COURT OF APPEAL

Immigration—Convention refugee—Test applicable on redetermination of status—Immigration Act, 1976, 1976-77 (Can.), c. 52, s. 71.

Appellant, following the Minister’s rejection of his claim to convention refugee status, applied to the Immigration Appeal Board for a redetermination of the claim. The Board refused to let the application proceed, and the Federal Court of Appeal dismissed an application to review that decision. The issue in this Court related to the test to be applied under s. 71 of the Immigration Act, 1976: when could the Board, on the basis of the application and accompanying material referred to in that section, refuse to let the application proceed further and declare the applicant not a Convention refugee.

Held: The appeal should be dismissed.

The test of a balance of probabilities set out in Lugano is the correct one under the section. The Board must allow a claim to proceed if it is of the view that “it is more likely than not” that the applicant will be able to establish his claim in the hearing. A “seriously arguable” case is not simply good enough to satisfy s. 71.

Lugano v. Minister of Manpower and Immigration, 1976 CanLII 2285 (FCA), [1976] 2 F.C. 438; Maslej v. Minister of Manpower and Immigration, 1976 CanLII 2309 (FCA), [1977] 1 F.C. 194; Mensah v. Minister of Employment and Immigration, F.C.A., No. A-527-79, May 2, 1980; Villarroel v. Minister of Employment and Immigration, F.C.A. No. A-573-78, March 23, 1979;

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Minister of Manpower and Immigration v. Fuentes, 1974 CanLII 2529 (FCA), [1974] 2 F.C. 331, referred to.

APPEAL from a judgment of the Federal Court of Appeal (1980), 34 N.R. 237, dismissing an appeal from a decision of the Immigration Appeal Board. Appeal dismissed.

Julius Grey, for the appellant.

Normand Lemyre, for the respondent.

The judgment of the Court was delivered by

WILSON J.—The appellant was born in Oberstinebach, Germany, on June 1, 1945. He is a Polish citizen, married, and his wife and two children live in Poland. His parents are still alive and are also Polish citizens currently residing in Poland. His sister is a landed immigrant living in Canada.

After the completion of his schooling in Poland the appellant trained as a teacher and had taught in several schools in Poland prior to coming to Canada on May 30, 1977 to visit his sister. His visitor’s visa authorized him to stay in Canada until August 30, 1977. However, his status as a visitor to this country was subsequently extended by the Canadian immigration authorities to August 11, 1978. On September 7, 1978 a report made pursuant to s. 27(2)(e) of the Immigration Act, 1976, 1976-77 (Can.), c. 52, was issued by Employment and Immigration Canada indicating that the appellant had entered Canada as a visitor and remained after his status as a visitor had terminated. An inquiry was held on December 17 and 18, 1978 and during that inquiry the appellant claimed that he was a Convention refugee as defined in s. 2(1) of the Act. The inquiry was immediately adjourned in accordance with s. 45(1) of the Act and an examination of the appellant under oath was held on April 20, 1979.

On November 14, 1979 the appellant was advised that the Minister of Employment and Immigration had determined that he was not a Convention refugee and the appellant thereupon applied to the Immigration Appeal Board under s. 70(1) of the Act for a redetermination of his claim

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to refugee status. The Board by order dated December 14, 1979 refused to allow the application to proceed and determined that the appellant was not a Convention refugee. The appellant applied to the Federal Court of Appeal under s. 28 of the Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, for a review of the Board’s decision but his application was dismissed. Leave to appeal to this Court was granted on October 20, 1980.

Counsel for the appellant submits that the Immigration Appeal Board applied the wrong test in reaching its decision that the appellant was not a Convention refugee and that the Federal Court of Appeal erred in confirming that test. He points out that the procedure under the Act when an applicant’s claim to refugee status has been rejected by the Minister is rather unusual. While it gives him recourse to the Immigration Appeal Board for a “redetermination” of his refugee status, the recourse is neither an appeal in the ordinary sense nor is it judicial review. To appreciate his submission it is necessary to consider ss. 70 and 71 of the Act.

70. (1) A person who claims to be a Convention refugee and has been informed in writing by the Minister pursuant to subsection 45(5) that he is not a Convention refugee may, within such period of time as is prescribed, make an application to the Board for a redetermination of his claim that he is a Convention refugee.

(2) Where an application is made to the Board pursuant to subsection (1), the application shall be accompanied by a copy of the transcript of the examination under oath referred to in subsection 45(1) and shall contain or be accompanied by a declaration of the applicant under oath setting out

(a) the nature of the basis of the application;

(b) a statement in reasonable detail of the facts on which the application is based;

(c) a summary in reasonable detail of the information and evidence intended to be offered at the hearing; and

(d) such other representations as the applicant deems relevant to the application.

71. (1) Where the Board receives an application referred to in subsection 70(2), it shall forthwith consid-

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er the application and if, on the basis of such consideration, it is of the opinion that there are reasonable grounds to believe that a claim could, upon the hearing of the application, be established, it shall allow the application to proceed, and in any other case it shall refuse to allow the application to proceed and shall thereupon determine that the person is not a Convention refugee.

Counsel points out that when refugee status is claimed during an inquiry into the legality of a person’s presence in Canada, s. 45 and the sections following provide for an examination of the claimant under oath by a senior immigration officer and the claimant is entitled to be represented by counsel. However, there is no provision for the calling of witnesses or the adducing of any other form of evidence. The transcript is then forwarded to the Minister in Ottawa who in turn is required to submit it to the Refugee Status Advisory Committee for advice. The decision, however, is the sole responsibility of the Minister. The claimant has no right to submit further evidence, make a personal appearance, request a hearing, or ask for reasons for the decision. Counsel also stresses that, although the Minister in making his decision may be exercising a purely administrative function, he is nonetheless subject to a duty to act fairly. He did not elaborate on the content of that duty.

Counsel further submits that a redetermination by the Board is a judicial or quasi-judicial function, the Board being designated a court of record under s. 65 of the Act with all the powers of a superior court as regards the attendance of witnesses and inspection of documents. However, the only material before the Board on an application for redetermination under s. 70 is the application accompanied by a copy of the transcript of the examination under oath plus a declaration of the applicant, also under oath, containing the matters identified in paras. (a) to (d) of subs. (2). Were it not for s. 71, counsel submits, an applicant for a redetermination would be entitled to a full oral hearing and the rules of natural justice would apply. Counsel says the key issue raised on this appeal therefore is the extent to which these rights are abrogated by s. 71 of the Act. Or to put it

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another way, the question that must be answered is: when can the Board on the basis of the application and accompanying material referred to in the section refuse to let the application proceed further and declare the applicant not to be a Convention refugee and when must it allow it to proceed further? What is the test to be applied under s. 71?

Counsel for the appellant submits that in this and earlier cases the Federal Court of Appeal has applied what he called a “hard” test, namely that the Board should reject an application unless it is persuaded that the application “would more likely succeed than not”. Counsel says that support for this test is found in a series of decisions of the Federal Court of Appeal, notably Lugano v. Minister of Manpower and Immigration, 1976 CanLII 2285 (FCA), [1976] 2 F.C. 438; Maslej v. Minister of Manpower and Immigration, 1976 CanLII 2309 (FCA), [1977] 1 F.C. 194; Mensah v. Minister of Employment and Immigration[^1] (unreported) and Villarroel v. Minister of Employment and Immigration[^2], (unreported). The test was expressed as follows by Pratte J. in Villarroel:

In my view, section 71(1) requires the Board to refuse to allow the application to proceed not only when the Board is of opinion that there are no reasonable grounds to believe that the claim could be established but, also, when things are so evenly balanced that the Board cannot form an opinion on that point. In other words, under section 71(1), as I read it, the applicant does not have the benefit of the doubt; on the contrary, the doubt must be resolved against him.

The appeal in the instant case was heard by Pratte and Le Dain JJ. and Hyde D.J. and the reasons of the Court were given by Pratte J. He makes reference to the argument of counsel as follows:

Counsel argued that, in those circumstances, the Board should have allowed the applicant’s claim to proceed since, according to him, subsection 71(1) requires the Board to allow to proceed all claims that appear to it to be seriously arguable. Subsection 71(1), said counsel, must not be interpreted as permitting the Board to reject summarily a seriously arguable claim because such an

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interpretation would deprive claimants of their right to a hearing in cases where such a hearing must be useful.

That contention must, in my view, be rejected. Not only does it not find support in previous decisions of the Court, but it is, in my opinion, irreconcilable with the language used in subsection 71(1). When both the English and French versions of that subsection are read, it becomes manifest that the Board is authorized to allow a claim to proceed only when it is of opinion that there are reasonable grounds to believe that the applicant will be able (not might be able) to establish his claim at the hearing; to put it in the words used by Mr. Justice Urie in Lugano, the Board must allow a claim to proceed if it is of the view that “it is more likely than not” that the applicant will be able to establish his claim at the hearing.

It will be convenient to quote here s. 71(1) in the French language:

71. (1) La Commission, saisie d’une demande visée au paragraphe 70(2), doit l’examiner sans délai. A la suite de cet examen, la demande suivra son cours au cas où la Commission estime que le demandeur pourra vraisemblablement en établir le bienfondé à l’audition; dans le cas contraire, aucune suite n’y est donnée et la Commission doit décider que le demandeur n’est pas un réfugié au sens de la Convention.

The reference made by Mr. Justice Pratte to the French version is, I believe, a reference specifically to the words “… pourra vraisemblablement en établir …”. Harrap’s Standard French and English Dictionary translates vraisemblablement as “probably” “very likely”. Pourra is the future tense of the verb pouvoir. A literal translation therefore would be “… will probably be able to establish …”.

Mr. Justice Le Dain in his reasons, after referring to the unusual power conferred on the Board under the section “to determine at a preliminary stage, not whether there is an arguable case, but whether there is a probability or a likelihood of success, without knowing what a full hearing might add to the strength of the case”, concludes that “the issue is whether the Board is able to form the affirmative opinion that the application is likely to succeed upon a full hearing”. (Emphasis added.)

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I have considered whether the members of the Federal Court of Appeal applied a harder test in this case than did the Appeal Board. The Board said:

Considering the Record as a whole, the Board finds that Mr. Kwiatkowski, on his evidence, might be justified to feel that he was discriminated against in his position as a teacher because of his religious beliefs. However, there is no evidence of persecution. He was able, on his own evidence, to be married in the Catholic Church, baptized his children and, at the same time, to have his employment as teacher.

The Board, therefore, after careful consideration of this application, is of the opinion that there are not reasonable grounds to believe that the claim could, upon the hearing of the application, be established, and thereupon determines that the applicant is not a Convention refugee.

The Board, in reaching this conclusion, reviewed the appellant’s evidence in detail to determine whether or not he fell within the definition of a Convention refugee in s. 2 of the Act. The definition reads as follows:

2. (1) In this Act,

“Convention refugee” means any person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(a) is outside the country of his nationality and is unable or, by reason of such fear, is unwilling to avail himself of the protection of that country, or

(b) not having a country of nationality, is outside the country of his former habitual residence and is unable or, by reason of such fear, is unwilling to return to that country;

The Board then found that the crucial requirement for refugee status was that the person have “a well-founded fear of persecution”. He may as a subjective matter fear persecution if he is returned to his homeland but his fear must be assessed objectively in order to determine if there is a foundation for it. The Board therefore reviewed his claim to have a well-founded fear of persecution for reasons of political opinion and concluded that there was no evidence to support that claim. It then considered whether he had a well-founded fear of persecution for reasons of religion and

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found that that too was unsupported by the evidence. Nor was it impressed by his claim based on The Gazette’s having mentioned in an article that he had at one time requested political asylum in Canada, which was apparently established to be untrue. The Board was of the opinion that that could not make him a “refugee” within the definition in the absence of any evidence that a fear of persecution could reasonably be founded on such a publication.

There is no doubt that the Board found as a fact that, while there was evidence to support discrimination against the appellant because of his religious beliefs, there was no evidence on which he could reasonably found a fear of persecution on grounds of his religious beliefs or political opinions. These were findings which it was open to the Board to make on the material before it. Accordingly, the Board formed the opinion that there were not “reasonable grounds to believe that his claim could be established”. In my opinion it is impossible to ascertain from the Board’s decision whether, when it quoted the word “could” from the English version of the section, it was talking possibility or probability. In other words, to use Mr. Justice Pratte’s language, it is not clear whether the Board was talking “might” or “will”. The English section is, I believe, susceptible of either interpretation. I cannot accept the submission of the respondent that the requirement of “reasonable grounds” imports probability rather than possibility into the word “could” in the English version. There may be reasonable grounds for believing that a claim could possibly be established and reasonable grounds for believing that a claim could probably be established. The use of the phrase “reasonable grounds” in my view is neutral as far as the proper interpretation of the word “could” is concerned.

The French version does, however, shed some light on the problem through the use of the word vraisemblablement. I think this makes it clear the Legislature had probabilities in mind rather than

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possibilities. I believe therefore that the test of a balance of probabilities set out in Lugano (supra) is the correct one under the section. Mr. Justice Pratte, in making reference to a different test in Minister of Manpower and Immigration v. Fuentes, 1974 CanLII 2529 (FCA), [1974] 2 F.C. 331, was not in my opinion addressing his mind at that point to the issue of the proper test to be applied but was simply summarizing the various stages of the process. I do not think the appellant can take much comfort from his comments in that case. The Fuentes case is, however, a significant decision on the need for hard evidence of conditions in the homeland to support a “well-founded” fear of persecution, the kind of evidence which the Board apparently found lacking in this case.

To return then to the issue at hand: did the Federal Court of Appeal apply the wrong test in reviewing the decision made by the Board under s. 71 of the Act? I address myself to the reasons of Mr. Justice Pratte which were concurred in by Mr. Justice Hyde. Mr. Justice Pratte clearly rejected the test advanced by counsel for the appellant, namely that all claims that appear to the Board “to be seriously arguable” should be allowed to proceed. I think he was correct in rejecting that test on the ground that it is irreconcilable with the statutory language, particularly the French version. I do, however, have some difficulty with the concluding part of his reasons where he says:

When both the English and French versions of that subsection are read, it becomes manifest that the Board is authorized to allow a claim to proceed only when it is of opinion that there are reasonable grounds to believe that the applicant will be able (not might be able) to establish his claim at the hearing; to put it in the words used by Mr. Justice Urie in Lugano, the Board must allow a claim to proceed if it is of the view that “it is more likely than not” that the applicant will be able to establish his claim at the hearing.

From what I have already said it will be apparent that I believe that Mr. Justice Urie’s statement of the test in Lugano is the correct one. To the extent, if any, that Mr. Justice Pratte’s use of the expression “will be able” without qualification imports a higher test than a mere balance of

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probabilities, it does not square with the test in Lugano and in my opinion would have to be rejected. I do not believe, however, that even if there is a disparity in the two ways in which the learned Justice framed the test, it vitiates his reasons since in my view the Court was clearly correct on the language of the section in importing the concept of probability into the appellant’s chances of success on a full hearing. A “seriously arguable” case is simply not good enough under the section. Mr. Justice Le Dain was in agreement with his colleagues on that point. The Board had reached the opinion on the material before it that there were not reasonable grounds to believe that the appellant’s claim could be established. The Federal Court of Appeal concurred in that finding. Whether the Board had in mind “could possibly” or “could probably”, it does not assist the appellant. Indeed, he would be worse off if the Board had formed the opinion that there were not reasonable grounds to believe that his claim could possibly be established. And this might well be so in view of its finding of no evidence to support a well-founded fear of persecution on any of the bases put forward.

Having concluded then that the Federal Court of Appeal committed no reversible error in the test it applied in reviewing the decision of the Immigration Appeal Board, I would dismiss the appeal.

Appeal dismissed.

Solicitors for the appellant: Gareau, Grey & Pohoryles, Montreal.

Solicitor for the respondent: Normand Lemyre, Montreal.

[^1]: File No. A-527-79, May 2, 1980.

[^2]: File No. A-573-78, March 23, 1979.