Minister of Employment and Immigration v. Norbert Timothy Letshou-Olembo

MARCEAU J.:-- The decision at issue in this application to review and set aside was rendered pursuant to the Immigration Act, R.S.C. 1985, c. I-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 s. 46(1) 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 determine 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 nationality. In1980 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.[1](Footnote 1 appended to judgment)

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 (See Guy S. Goodwin Gill, The Refugee in International Law (OxfordUniversity Press, 1983), at p. 52, under the heading "The Country of First Asylum Principle")), in principle the claim of a person who has already had his refugee status recognized elsewhere is inadmissible, and this inadmissibility can only be lifted in specific circumstances, the rules applicable to the situation being contained in s. 46.01(1)(a) and (2) 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 valid and subsisting travel document by that country pursuant 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 members 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 Convention refugee.

At the initial hearing of his claim the respondent naturally argued that he fell within the exception contained in s. 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 admitted that there was a credible basis for the respondent's fear of persecution in his own country.[2](Footnote 2 appended to judgment) 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 s. 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 s. 46.01(2) of the Act, a prevision 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 decision 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 s. 28 of the Federal Court Act, 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 admissibility 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.[3](Footnote 3 appended to judgment)

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 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 s. 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 manifest error of law that may have caused a misunderstanding 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 finally be attributed to the member of the Refugee Division not only was not committed by him overtly 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 English in social and humanitarian activities with political consequences, 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 "Zairag" (Zairian Refugee Action Group). The president of Zairag and he learned of the existence f 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 history.

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 subpara. (a)(i) of the definition of "refugee" in s. 2,[4](Footnote 4 appended to judgment) 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 s. 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 persecution, its reasonableness, its basis, namely his race, religion, nationality, political opinions or social group, but without reference to the availability of or request for protection from the authorities 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 reference 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. (a)(i) of the definition of "refugee" was not reproduced in s. 46.01(2) is that clearly there could be no question of a person who was unable or unwilling "to avail himself of the protection" of the country to which he had fled for refuge.

Not only the adjudicator but the member of the Refugee Division himself was quick to reject counsel 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 significant 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 plaintiff's 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 provide 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 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. 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.

Certified true translations: T.V. Helwig



[1] 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 refuges 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 territory; they shall in particular give sympathetic consideration to the issue of such a travel document to refuges in their territory who are unable to obtain a travel document from the country of their lawful residence.

2.             Travel documents issued to refuges under previous international 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] As he was authorized to do by s. 46.01(7):

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 claimant has a credible basis for the claim.

[3] The fact that the Refugee Division is not empowered to revoke the eligibility ruling is indicated by the fact that in s. 46.01(2) the Act does not mention any search for evidence "on which the Refugee Division might determine", as it does in s. 46.01(6) dealing with credibility. It can also be seen that in s. 46.04(2) 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 persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion in the country that recognize the person as a Convention refugee.

[4] The wording of which is as follows:

"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 his nationality and is unable or, by reason of that fear, is unwilling himself of the protection of that country.

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