Refugees and the Immigration Act
Christopher J. Wydrzynski*
Introduction
Unprecedented in the history of Canadian immigration legisla-
tion, the recent Immigration Act, 19761 has attempted to codify the
procedures dealing with the entrance of individual refugees to
Canada. In essence, there is no significant difference from depart-
mental administrative practice under the old statute; however, now
that the procedures and standards are precisely articulated, they
may be examined more extensively. This article will outline the
immigration system established to process refugee claims, and will
comment on the legislative steps Parliament has taken to ensure
that Canada meets her international obligations and provides a
system whereby the individual refugee applicant is treated with
procedural and substantive fairness.
It is important at the outset to differentiate between the situa-
tion of the immigrant and that of the refugee. Immigrants volun-
tarily ohoose to relocate, generally with a view to self-improve-
ment and achieving a higher quality of life for themselves and
their families. Economic considerations are the most frequent
motivating factors. In contrast, the refugee, while exhibiting many
characteristics of the ordinary immigrant, has little choice in the
decision to migrate. Simply stated, refugee migration consists of:
the movement of people on an involuntary, forced basis … but it has
not been planned, organized, or participated in by individuals or groups
of individuals for their own preferred reasons. Refugee exodus, by
individuals or groups,
terror-
stricken, and at least initially productive of social and psychological
disruption.2
is forced, sudden, chaotic, generally
It is precisely because of the involuntary uprooting of refugees
from their habitual residence that different standards and proce-
dures must exist in immigration law to accommodate their appli-
cations. Admission criteria should emphasize humanitarian rather
– than economic concerns.
*Associate Professor, Faculty of Law, University of Windsor, Windsor,
Ontario.
1 S.C. 1976-77, c. 52.
2 Bernard, Immigrants and Refugees: Their Similarities, Differences, and
Needs (1976) 14 Int’l Migration 267, 267-68.
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REFUGEES AND THE IMMIGRATION ACT
In addition, the international impact of refugee migration must
be stressed. Refugee migration has received significant attention
from -he international community and its institutions, in contrast
to the international legal approach to ordinary immigrant migra-
tion – -long considered an element of state sovereignty subject to
domestic standards only? While there may be some exceptions to
this general rule as well as a growing awareness of individual
human rights in the international community, it is mainly in the
area of refugee admission that international law has any impact
on domestic immigration schemes. It is within this frame of re-
ference that -the Immigration Act, 1976 and admission of refugees
to Canada should be examined. The main focus must be on whether
the processing of refugees demonstrates a high regard for the
humanitarian elements in each case, and whether Canada’s legisla-
tive directives measure up to international standards designed to
ensure the refugee’s welfare. In no other area of immigration law
is the simple ability to move portrayed so vividly as an element
vital to existence. The history of refugee migration has shown that
it is a highly political question; Canada’s new Act has demonstrated
that it may also be a complex legal issue.
I. The international standard
Recent international legal history with respect to refugees began
with the Convention Relating to the Status of Refugees, signed in
Geneva in 1951Y The Convention was designed to regularize and
consolidate treatment in the context of the post World War II
See generally Goodwin-Gill, The Limits of the Power of Expulsion in
Public International Law (1974-75) 47 Brit. Y.B. Int’l L. 55 and Brownlie,
Principles of Public International Law (1973), 505. The rights regarding
admission, naturalization and expulsion are not circumscribed by interna-
tional law, but analysis of state practice can establish some standards of
reference, and physical presence alone may be enough to require non-
discriminatory treatment.
4 See Roth, The Minimum Standard of International Law Applied to Aliens
(1949), 32: “The State of residence has to concede a certain minimum of
rights to the alien and its power to control him is restricted to a certain
maximum”. Also see Dawson & Head, International Law National Tribunals
and the Rights of Aliens (1971).
5 See, e.g., McDougal, Lasswell & Chan, The Protection of Aliens from Dis-
crimination and World Public Order: Responsibility of States Conjoined
with Human Rights (1976) 70 Am. J. Int’l L. 432 and Fischer, The Human
Rights Covenants and Canadian Law (1977) 15 Can. Y.B. Int’l L. 42.
G 189 U.N.T.S. 150.
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refugee problem. This general enactment was significant in being
the first international treaty to offer a legal definition of “refugee”
and to define fundamental rights and principles.” Its primary goal
was to repatriate refugees to their home countries or to help them
resettle elsewhere.
A major defect in the 1951 Convention was its applicability only
to persons who became refugees prior to 1951. This time limitation,
among other things, was removed by the 1967 Protocol relating
to the Status of Refugees.9 Although not an original party to either
agreement, Canada acceded to both in 1969. However, because of
Canada’s constitutional requirements, neither the Convention nor
the Protocol can be considered part of domestic law without federal
legislation designed specifically for that purpose.” The extent of
Canada’s accession to the substantive provisions contained in the
relevant treaties, apart from’ international obligations, must be
gleaned solely from an analysis of the Immigration Act, 1976.
The Convention does not attempt to change the customary rule
of international law that no individual, including a refugee, may
assert a right to enter a state unless he is a national of the re-
ceiving country. It is the right of a state to grant asylum, not the
right of the individual to be granted asylum. The principal protec-
tion offered refugees by the Convention is the prohibition against
refoulement –
the return of a refugee “to the frontiers of territo-
ries where his life or freedom would be threatened on account of
his race, religion, nationality, membership of a particular social
group or political opinion”.”
However, since an exception is made for refugees who are con-
sidered to be security risks by the host country, avoidance of the
7A number of different treaties and organizations had dealt with the
problem after the First World War.
8 See Hill, Immigration Law and the Refugee – A Recommendation to
Harmonize the Statutes with The Treaties (1975) 6 Calif. W. Int’l LJ. 129,
132 and Weis, The United Nations Declaration on Territorial Asylum
(1969)
7 Can. Y.B. Int’l L. 92, 122.
9606 U.N.T.S. 267.
10)This assumes that the Labour Conventions case [1937] A.C. 326,
[1937]
1 D.L.R. 673, [1937] 1 W.W.R. 299 (P.C.) still portrays an accurate consti-
tutional picture of the treaty power in light of comments made by Laskin
CJ.C. in Macdonald v. Vapour Canada Ltd (1976) 66 D.L.R. (3d) 1, 27 et seq.
(S.C.C.). See also Macdonald, “The Relationship Between International Law
and Domestic Law in Canada” in Macdonald, Morris & Johnston
(eds.),
Canadian Perspectives on International Law and Organization (1974), 88.
11 189 U.N.T.S. 150, Art. 33. Note the exception in Art. 33(2) in the case
(1972),
of security risks. See also Plender, International Migration Law
239-42.
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REFUGEES AND THE IMMIGRATION ACT
refoulement provision is possible. This is especially true with re-
gard to refugees from countries on friendly terms with Canada, the
implication being that accepting refugees from other Western na-
tions would indicate tacit disapproval of their domestic policies
and would result in a potentially embarrassing situation.’
In
addition to the prohibition against refoulement, refugees are not
to be expelled to other countries except in accordance with due
process of law.Is
The remaining sections of the Convention deal with the rights
and privileges of refugees already present within the receiving
state. Domestic treatment of refugees must in all cases be equal
to that accorded other aliens by the domestic law and in some cases
is required to be equivalent to the status enjoyed by nationals.’ 4
Some of the subjects treated are religion,15 personal status, 6 pro-
perty,”7 association, 8 access to courts, 9 gainful employment, 0 wel-
fare,2′ and administrative measures including the right to freedom
of movement and issuance of travel documents.&2 2 Finally, Article
III of the 1967 Protocol requires that each contracting party com-
municate to the Secretary General of the United Nations the laws
and regulations which have been adopted to ensure that domestic
treatment of refugees is consistent with the standards of the Con-
vention and Protocol.2
12 This is not a legal but a political problem. See Oda, “The Individual
in International Law” in Sorensen (ed.), Manual of Public International Law
(1968), 469, 491: “Grant of asylum to … political refugees is a peaceful and
humanitarian act and so it cannot be regarded as unfriendly by any other
state including the state of which … the refugee is a national”. Generally,
see Weis, Human Rights and Refugees (1972) 10 Int’l Migration 20.
than that accorded to aliens generally”.
13189 U.N.T.S. 150, Art. 32(2).
14Ibid., Art. 7.
15Ibid., Art. 4.
6Ibid., Art. 12.
17 Ibid., Arts. 13 and 14. Art. 13 stipulates treatment “not less favourable
18 Ibid., Art. 15, which grants the same rights “as a foreign national”.
19 Ibid., Art. 16.
2OIbid., Arts. 17 (treatment equivalent to that accorded foreign nationals)
21 Ibid., Arts. 20-24.
22Ibid., Arts. 25-31.
23 606 U.N.T.S. 267, Art. III. For a general analysis of the treatment of
aliens in Canada, see Head, The Stranger in Our Midst: A Sketch of the
Legal Status of the Alien in Canada (1964) 2 Can. Y.B. Int’l L. 107; on pro-
perty rights, see Spencer, The Alien Landowner in Canada (1973) 51 Can.
Bar Rev. 389. No study has been undertaken to determine Canada’s com-
pliance with the Convention provisions. The only area of law other than
and 19 (treatment equivalent to that accorded aliens generally).
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As may be observed, no provision in either of the relevant
treaties gives refugees the right to enter the territory of one of
the contracting states. It is only after the refugee enters the terri-
tory of the state of refuge that any rights accrue.24 The most signi-
ficant impact of the treaties on Canadian domestic jurisdiction
has been the definition of the term “refugee” which has been in-
corporated in the Immigration Act, 1976. A refugee is defined as
any person who,
owing to a well-founded fear of being persecuted for reasons of race,
religion, nationality, membership of a particular social group or political
opinion, is outside his country of nationality and is unable or, owing to
such fear, is unwilling to avail himself of the protection of that country;
or who, not having a nationality and being outside the country of his
former habitual residence … is unable -or, owing to such fear, is un-
willing to return to it.
This definition has presented many difficulties of interpretation
on both international and domestic levels 6 It has been estimated
that fifty per cent of the world’s de facto refugee population is
presently excluded from the mandate of the United Nations High
Commissioner for Refugees, the principal international functionary
immigration in which the status of refugees is raised is in the family law
field. Questions such as whether refugees can acquire a “domicile of
choice” or have a “real and substantial connection” with a court of com-
petent jurisdiction for purposes of divorce recognition have been raised in
.the past. See, e.g., Osvath-Latkoczy v. Osvath-Latkoczy [1959] S.C.R. 751 and
Holub v. Holub (1976) 71 D.L.R. (3d) 698 (Man. C.A.).
24 Exactly what constitutes a presence within the territory sufficient to
attract the protection of the Convention has caused much difficulty in the
U.S. Many cases have held that physical presence is not enough; compliance
with the immigration statutes is also necessary. See Mackler & Weeks, The
Fleeing Political Refugee’s Final Hurdle –
The Immigration and Nationality
Act (1978) 5 N. Ky L. Rev. 9. Although Art. 31 of the Convention makes some
provision for refugees unlawfully in the country of refuge, and Art. 32
speaks of expulsion of refugees lawfully in the country of refuge, Canadian
laws do not seem to make this distinction. Indeed, in the U.S., the anomaly
has arisen that illegal entrants might receive more procedural protection
in removal proceedings than refugees who were initially admitted in a lawful
manner. See also Clowney, Extending the Constitution to Refugee-Parolees
(1977) 15 San Diego L. Rev. 139.
25 189 U.N.T.S. 150, Art. 1A.
26For the limitations apparent in the Convention itself, see ibid., Art. IC.
Domestically, limitations inherent in the definition have posed difficulties
for Canadian courts: see Darwich v. M.M.I. [1979] 1 F.C. 365, 25 N.R. 462
(CA.). Mr Darwich was an individual who fled a civil war in his country.
This was not found to be persecution sufficient to comply with the refugee
definition.
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REFUGEES AND THE IMMIGRATION ACT
charged with assisting refugeesY. The present definition and its
failure to deal effectively with the refugee dilemma was one of the
motivating factors for a new convention on territorial asylum –
the subject of a 1977 Geneva Conference.8 This convention would
attempt to extend the present definition to include refugees who
are excluded under the existing framework.
II. Statutory provisions related to refugee status
Although the 1966 White Paper on Immigration had promised
legislative amendments to deal with the problem of admission of
refugees to Canada, no comprehensive legal criteria appeared be-
fore the new Act in 1976.29 White Paper proposals did encourage
treaties dealing with re-
accession -to the various international
fugees and recommended the establishment of a Refugee Eligibility
Committee. In response, Canada acceded to the treaties in 1969,
and the Refugee Eligibility Committee, although never recognized
in law, attained a form of existence in the establishment of an
interdepartmental advisory committee on refugee status.3 Favour-
able review by the Committee could result in the granting of landed
immigrant status by Order in CounciL. 1
The first statutory recognition of a refugee’s legal right to
remain in Canada appeared in an amendment to the Immigration
Appeal Board Act in 1973. Persons claiming to be refugees pro-
tected by the Convention were given a qualified right of appeal
from an order of deportation issued by a Special Inquiry Officer.3
If the claim was viewed as neither frivolous nor likely to fail at a
preliminary hearing, leave to appeal was granted and the refugee
claimant had access to the Board’s equitable jurisdiction under
section 15 of the Immigration Appeal Board Act. The successful
27UNHCR, The Refugee Problem Isn’t Hopeless Unless You Think So
(1975); Plender, Admission of Refugees: Draft Convention on Territorial
Asylum (1977) 15 San Diego L. Rev. 45.
28See Plender, supra, note 27, 56-60.
28Dept of Manpower and Immigration, White Paper on Immigration
(1966), 23. On the new Act as a whole, see Black, Novel Features of the
Immigration Act, 1976 (1978) 56 Can. Bar Rev. 561.
30 Government of Canada, Green Paper on Immigration Policy (1975),
vol. 2, 115.
3 1 Canada Law Reform Commission, The Immigration Appeal Board (1976),
32 Immigration Appeal Board Act, R.S.C. 1970, c. 1-3, s. 11 as am. by _S.C.
49.
1973, c. 27, s. 5.
33 S.C. 1973, c. 27, s. 11(1)(c).
McGILL LAW JOURNAL
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appellant could then be granted landed immigrant status by the
Board, despite the existence of a deportation order and rejection
by the Interdepartmental Advisory Committee. This appellate pro-
cedure, however, was the only means of seeking refugee status
recognized by statute. Special Inquiry Officers had no jurisdiction
to consider such claims when adjudicating on deportation orders;
they could only relay information to the Interdepartmental Ad-
visory Committee. As pointed out in an article by Grey, “[ilt was,
to say the least, a strange phenomenon that a ground which could
not, in strict law, be invoked at a special inquiry suddenly became
the legitimate basis for an appeal from that inquiry”‘.14 It was by
this confused method that Canada sought to fulfil her international
obligations.
The Immigration Act, 1976 is much more specific about proce-
dures relating to refugee status, although the relevant provisions
are scattered throughout the statute and give an appearance of
confusion. Section 2(1) adopts as the appropriate test for ad-
missibility the Geneva Convention definition of “refugee”. Since
an individual claiming refugee status within Canada will be in-
volved eventually in a process of removal, either at a port of
entry or after admission as a visitor, the procedure for dealing
with the claim does not begin until the inquiry stage. There is no
method of requesting refugee status without subjecting the claim-
ant to possible removal from Canada 55 When the inquiry is held,
the subject must claim protection as a Convention refugee. No
determination of refugee status will occur at this time; the inquiry
will be continued to determine if there are legitimate grounds of
exclusion and removal apart from the refugee claim. If such ap-
pears to be the case, the inquiry will be adjourned2
Upon adjournment, the claimant will be examined by a senior
immigration officer and will be allowed to submit his own evidence
34 Grey, The New Immigration Law: A Technical Analysis (1978) 10 Ottawa
L. Rev. 103, 106.
– Under the former legislation, a deportation order had to be made before
the refugee claim could be processed, and in order to appeal to the Immi-
gration Appeal Board. The new law advances the process somewhat, in
that the refugee claim can be processed before issuance of a deportation
order; however, if the claim is rejected, removal will be the ultimate result.
86 S.C. 1976-77, c. 52, s. 45(1). If no grounds for removal are apparent, the
subject of the inquiry will obviously have no reason to pursue the refugee
claim. However, there may be tactical reasons why a claimant may not
wish to subject himself to removal proceedings in order to lodge a refugee
claim.
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REFUGEES AND THE IMMIGRATION ACT
as to the substance of the refugee claim3 7 After completion of the
examination under oath and submission of any supporting evi-
dence, all relevant materials will be referred to the Minister 8 It is
important to note that the adjudicator is given no discretion in
dealing with claims for refugee status; the above procedure
is
mandatory 9 In addition, the subject of the examination
is en-
titled to be represented by counsel and given a reasonable oppor-
tunity to obtain counsel,40 and may obtain a copy of the transcript
of the examination.41
Upon receipt of the claim and transcript, the Minister shall refer
the evidence to the members of the Refugee Status Advisory Com-
mittee4 2 appointed by him to assist in determining whether or not
the claimant is a Convention refugee.43 While the Committee may
advise and make recommendations,
the Minister has sole re-
sponsibility for a final determination. The claimant has no right
to submit further evidence, make a personal appearance, request
a hearing, or ask for reasons for the decision.4
37 It is best for counsel to have a statement concerning the evidence re-
lating to the refugee status claim prepared in advance of the inquiry. It is
very important that all possible evidence be entered on the transcript in
order to allow the Advisory Committee the widest scope for appraisal.
38 S.C. 1976-77, c. 52, s. 45(2).
3DIbid., s. 45(1). Note the wording: “shall be adjourned” [emphasis added].
40Ibid., s. 45(6).
41 Ibid., s. 45(3).
421bid., s. 45(4).
43Ibid., s. 48. Recent appointments to the committee indicate a departure
from past practice, as members of the public as well as government officials
have been named. Current appointments include a former Moderator of the
United Church of Canada, the Director of the Canadian Branch of the Inter-
national Labour Office, a former Executive Director of the Ottawa Social
Planning Council, a former Assistant Under-Secretary of State for External
Affairs and Canadian ambassador, as well as two representatives of the
Employment and Immigration Commission, an official of the Department of
External Affairs and the representative in Canada of the United Nations
High Commissioner for Refugees who attends as an observer and adviser:
Press Release 78-19, Minister of Employment and Immigration, Apr. 10, 1978.
44 Quaere whether or not proceedings before the Refugee Status Advisory
Committee may be reviewable under the Federal Court Act, R.S.C. 1970, c. 10
(2d Supp.), now that the Committee and its powers are recognized by
statute and it has a defined standard to apply to each individual case. The
nature of the Committee’s function (to investigate or recommend) and the
characterization of immigration law as involving “privileges” rather than
“rights” would seem to detract from this possibility. More contentious
questions on non-reviewability arise in relation
to the Special Advisory
Board dealing with security cases established by Immigration Act, 1976, ss.
39-42. At least the refugee claimant may receive a second chance at a public
McGILL LAW JOURNAL
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If the Minister determines that the claimant is a Convention
refugee, the senior immigration officer who conducted the original
examination and the claimant will be informed of this determina-
tion.45 If a negative determination as to refugee status is made,
the original inquiry will be resumed and the appropriate removal
order or departure notice will be issued.40 However, resumption
of the inquiry may be delayed if the claimant makes an applica-
tion to the Immigration Appeal Board for a redetermination of
his claim as a Convention refugee, 4
The procedure established for disposition of the refugee claim
on an application for redetermination is very similar to the pro-
cedure for qualified appeads under the previous Immigration Ap-
peal Board Act.48 The claimant must attach to his application for
redetermination a declaration made under oath, containing: a) the
nature of the basis of the application; b) a reasonably detailed
statement 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 represen-
tations as the applicant deems relevant to the application.4 9
The application for redetermination cannot proceed directly
to a hearing on the issue of refugee status. On the basis of the
transcript of the original inquiry examination and the additional
evidence submitted by the applicant outlined above, the Board
must initially determine whether “there are -reasonable grounds to
hearing before the Immigration Appeal Board. Individuals who are con-
sidered security threats may be deported without the opportunity to defend
themselves or even to know the particulars of the case against them. See,
e.g., Prata v. M.M.I. (1975) 52 D.L.R. (3d) 383 (S.C.C.). Generally see Hucker,
Immigration, Natural Justice and the Bill of Rights (1975) 13 Osgoode Hall
LJ. 649. An attempt to require the Refugee Status Advisory Committee to
allow the claimant some access to its proceedings and reasons was under-
taken in Perez v. Refugee Status Advisory Committee, F.C.T.D., No. T-3857-78,
Aug. 29, 1979 (unreported). Smith D.J. denied a defence motion to strike
for lack of reasonable cause of action; the case is still to be heard on the merits.
45 S.C. 1976-77, c. 52, s. 45(5).
46Ibid., s. 46(1).
47Ibid., .s. 70(1). By s. 40 of the Immigration Regulations, 1978, SOR/78-172
(1978) 112 Canada Gazette Pt II 757, a request for redetermination by the
Immigration Appeal Board must be made by the claimant within seven days
of being informed of the Minister’s refusal to accept refugee status. This
period of time seems unduly onerous as recent case law has suggested that
all supporting documents must accompany the request: Tapia v. M.E.I.
(1979) 26 N.R. 361 (F.CA.).
48R.S.C. 1970, c. 1-3, s. 11, as am. by S.C. 1973, c. 27, s. 5.
49 S.C. 1976-77, c. 52, s. 70(2).
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REFUGEES AND THE IMMIGRATION ACT
believe that the claim could … be established” if a full hearing
were allowed.50 Rejection of the application at this preliminary
stage will result in a determination that the applicant is not a
Convention refugee. If the application is allowed to proceed, a
complete hearing on the issue will be held and the Minister’s re-
presentatives will be permitted to attend.51 Whatever the outcome,
all parties to the disposition are entitled to be informed of the
Board’s -decision and reasons for the determination will be avail-
able upon request.5 2
Up to this point the potential refugee may have had two fora re-
view his claim. Whatever the result of the Minister’s or the Appeal
Board’s determination, the claim will be referred back to an ad-
judicator for resumption of the original inquiry. If the outcome
has been negative, the appropriate removal order or departure no-
tice will then be issued.P It is significant, however, that at this
stage most refugee claimants have no right of appeal from the
adjudicator’s decision to issue a removal order.M Eligible appellants
no longer include refugee claimants. Since a refugee status redeter-
mination is not an appeal, claimants will not have access to the
Board’s equitable or humanitarian jurisdiction if their application
for redetermination is refused. Unsuccessful refugee claimants had
this privilege, according to interpretation of the former legislation. 55
The most controversial, and certainly the most cumbersome,
feature of the new legislation is the fact that inquiries must be re-
sumed notwithstanding a favourable decision, for the applicant by
(1978)
50Ibid., s. 71(1). This procedure is reproduced from the former statute.
5 1Immigration Appeal Board Rules, 1978, SOR/78-311
112 Canada
Gazette Pt II 1422, as am. by SOR/78-355 (1978) 112 Canada Gazette Pt II
1970, s. 53, enacted pursuant to the Immigration Act, 1976, S.C. 1976-77, c.
52, s. 67. See also s. 71(2) of the Act.
52 S.C. 1976-77, c. 52, s. 71(3) and (4). If the Board allows the application
to proceed, in most cases the applicant will be successful. Since the Board
is a creature of civil rather than criminal jurisdiction; the standard of proof
rests on a balance of probabilities. Since the test established by s. 71(1)
for allowing the application to proceed is stated as “reasonable grounds to
believe that a claim could … be established”, the applicant must have
already proven most, if not all, of his claim by the time the full hearing is
to be conducted.
53Ibid.,, s. 46. It appears that the adjudicator has no discretion in this
regard. Note the word “shall” in s. 46(2).
54 The possibility of judicial review of the adjudicator’s decision by the
Federal Court is evident at this stage. See the case of Tapia v. M.E.I., supra,
note 47, where judicial review of the Board’s refusal was undertaken.
55 Grey, supra, note 34, 107: “This -will in practice eliminate a very signi-
ficant avenue of appeal”.
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the Minister or the Immigration Appeal Board.P6 Classification as a
Convention refugee is no guarantee of a right to remain in Canada.
Final clearance must be obtained by an adjudicator at the resumed
inquiry who will apply certain final tests of admissibility to deter-
mine whether the now adjudged Convention refugee presents any
threat to the security or public order of Canada.” In addition, Con-
vention refugees convicted of an offence under any federal statute
for which a term of imprisonment of more than six months has
been imposed are eligible for rejection. 8 The general intent of this
process is to indicate that refugees are not subject to the same
scrutiny as ordinary immigrants.
56 S.C. 1976-77, c. 52, s. 47.
571Ibid., s. 4(2), read with ss. 19(1)(c)-(g), 27(1)(c)-(d), and 27(2)(c):
s. 19(1)
(c) persons who have been convicted of an offence that, if committed in
Canada, constitutes or, if committed outside Canada, would constitute an
offence that may be punishable under any Act of Parliament and for which
a maximum term of imprisonment of ten years or more may be imposed,
except persons who have satisfied the Governor in Council that they have
rehabilitated themselves and that at least five years have elapsed since the
termination of the sentence imposed for the offence;
(d) persons who there are reasonable grounds to believe will
(i) commit one or more offences punishable by way of indictment
under any Act of Parliament, or
(ii) engage in activity that is part of a pattern of criminal activity
planned and organized by a number of persons acting in concert
in furtherance of the commission of any offence that may be
punishable under any Act of Parliament by way of indictment;
(e) persons who have engaged in or who there are reasonable grounds to
believe will engage in acts of espionage or subversion against democratic
government, institutions or processes, as they are understood in Canada,
except persons who, having engaged in such acts, have satisfied the Minister
that their admission would not be detrimental to the national interest;
(f) persons who there are reasonable grounds to believe will, while in
Canada, engage in or instigate the subversion by force of any government;
(g) persons who there are reasonable grounds ‘to believe will engage in
acts of violence that would or might endanger the lives or safety of persons
in Canada or are members of or are likely to participate in the unlawful
activities of an organization that is likely to engage in such acts of violence;
s. 27(1)
(c)
(d) has been convicted of an offence under any Act of Parliament for
which a term of imprisonment of
is engaged in or instigating subversion by force of any government,
(i) more than six months has been imposed, or
(ii)
five years or more may be imposed.
s. 27(2)
(c)
5slbid., s. 4(2)(b).
is engaged in or instigating subversion by force of any government.
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REFUGEES AND THE IMMIGRATION ACT
If the adjudicator determines that a refugee is subject to removal
as a threat to national security or public order, an appeal may still
be launched to the Immigration Appeal Board. In any case the re-
fugee will be able to dispute the legality of the removal order,
whatever the basis. 59 Furthermore, refugees in certain situations will
have access to the Board’s compassionate and humanitarian juris-
diction; however, if the removal order is based on paragraphs
19(1)(e), (f), or (g), the refugee’s appeal is confined to legal and
factual questions.6 Certain classes of Convention refugees may there-
fore be removed from Canada solely on the basis of an adjudicator’s
determination with no access to the Immigration Appeal Board.”‘
It is important to note that protection against refoulement can be
denied any refugee who falls within the designated inadmissible
classes.u
In addition, an individual outside Canada seeking refugee status
may approach officials of the Foreign Branch of the Canada Em-
ployment and Immigration Commission and apply for an immigrant
visa as a “Convention refugee seeking resettlement”,
defined as
‘a Convention refugee who has not become permanently resettled
and is unlikely to be voluntarily repatriated or locally resettled”.6
Such applications are given the highest priority in processing. 5
The visa officer is required to examine the facts of each case to de-
termine if the requirements of the Act and Regulations have been
fulfilled and to form an opinion of whether the applicant can be-
come successfully established in Canada. 6 In order to do this, the
visa officer must consider the same assessment criteria as those
used to select independent applicants and, as well, the amount of
50 Ibid., s. 72(2) (c).
O0It is difficult to assume that s. 27(1)(c) or (2)(c) will ever constitute
the basis of a removal order alone without being linked to s. 19(1)(e), (f),
or (g).
01 Since we are dealing with the refugee as a threat to national security,
it is likely that a security certificate might be issued under s. 39 of the
Immigration Act, 1976. Such a certificate could deny completely the re-
fugee’s ability to appeal on any basis.
62 S.C. 1976-77, c. 52, s. 55. The Minister’s consent is also required before
return to a country posing a threat to the refugee’s well-being can be
effected.
103mmigration Regulations, 1978, SOR/78-172
(1978)
112 Canada Gazette
Pt II 757, s. 7.
64Ibid., s. 2(1).
03Ibid., s. 3(a).
06Ibid., s. 7(3).
McGILL LAW JOURNAL
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settlement assistance available from government and private or-
ganizations in Canada 67
Finally, as significant numbers of individuals have been admitted
to Canada under Special Refugee Relief Programs in situations
where circumstances were beyond the reach of the Geneva Conven-
tion definition, the Immigration Act, 1976 allows for admission of
displaced and persecuted persons who technically would not be
entitled to admission.
In addition, regulations may be made to
facilitate the admission of members of a class of persons designated
for special treatment. The power to relieve individuals in distress as
a result of natural calamities, civil wars and other disasters has
been granted to the federal Cabinet.
Generally, the new Act and its refugee provisions are a significant
step forward in the history of Canadian immigration legislation. For
the first time, refugees have been dealt with as a specific topic of
concern. Applicable principles and standards have been set out in
statutory form, rather than being left to the uncertainty of interna-
tional political relationships. The Minister of Employment and Im-
migration, on the third reading of Bill C-24, stated in the House of
Commons: “I am now more confident than ever that the refugee
sections of the bill are among the most generous in the world. They
far exceed our international obligations in terms of acceptance
and protection of refugees”.6 9
III. Canadian application of the international definition
As mentioned previously, Canadian immigration legislation has
adopted the international definition of “refugee” as found in the
Geneva Convention of 1951.70 A number of judicial and adminis-
trative interpretations have been given to this definition in Canada.
Thus, it is important to look at Canadian applications in order to
determine whether the definition is adequate, or whether some modi-
fications are necessary to adapt it to present international political
reality. Although Canada’s international obligations may not extend
beyond adherence to treaty standards, an overly strict construction
of the treaty and an inadequate definition could be subject to
67Ibid., s. 7(1). Under s. 7(2)(c), sponsoring groups are required to pro-
vide the Minister with a written undertaking that lodging, care, maintenance
and settlement assistance will be provided for the Convention refugee and
his family for a period of one year.
68S.c. 1976-77, c. 52, ss. 6(2) and 115 (1)(d).
69 [1977] 8 H.C. Deb. 7979 (30th Parl., 2d Sess.).
70 189 U.N.T.S. 150, Art. IA.
19791
REFUGEES AND THE IMMIGRATION ACT
modification in order to reflect the truly humanitarian character of
the refugee problem.
It is unfortunate that judicial tribunals above the level of the
Immigration Appeal Board rarely have been given an opportunity to
interpret the refugee definition. Decisions of the Refugee Status
Advisory Committee are virtually non-reviewable. Although negative
determinations can still be reheard by the Immigration Appeal Board,
once the Board has ruled on the question, the matter must be re-
turned to the adjudicator for final disposition. No right of appeal
is provided for in the Immigration Act, 1976 in cases of refugee re-
determinations.7 ‘ Thus the only possible way a superior court could
construe the refugee definition would be through judicial review of
the Board’s redetermination findings under the Federal Court Act.7 2
Due to the complex nature of the question to be decided, the heavy
emphasis on factual matters, and the limitations of jurisdiction,
it is highly unlikely that an application would even be launched,
much less succeed. Similarly, under the old Immigration Appeal
Board Act,73 the issue of whether the claimant fell within the refugee
definition was part of the Board’s section 15 “equitable jurisdic-
tion”. It has been amply demonstrated that any appellate or re-
viewing court is loath to tamper with the Board’s decision in this
regard1 4 Thus, the decisions of the Immigration Appeal Board as-
sume great importance.
The Geneva Convention definition was only incorporated into
Canadian law in 1973.7- Prior to that time the Immigration Appeal
Board had jurisdiction to consider cases of unusual hardship under
the discretionary power in section 15(1) (b) (i) of the Immigration
Appeal Board Act. An individual ordered deported could apply to
the Board to have that order quashed if he could show:
the existence of reasonable grounds for believing that if execution of
the deportation order is carried out …
[he] will be punished for
activities of a political character or will suffer unusual hardship.
(CA.).
7′ See S.C. 1976-77, c. 52, s. 84, and Adamusik v. M.M.I. [1976] 2 F.C. 63
7′ 2 Quaere whether this is possible.
73R.S.C. 1970, c. 1-3 as am.
74 See Boulis v. M.M.L (1972) 26 D.L.R. (3d) 216, 223 (S.C.C.) per Laskin
J. (as he then was): “[The Board’s] reasons are not to be read micro-
scopically; it is enough if they show a grasp of the issues that are raised…
and of the evidence addressed to them, without detailed reference”. This
case involved an appellate situation. One can only suspect that judicial
review would evoke an even stricter onus on the claimant where jurisdiction,
rather than merit, is in issue.
7 5S.C. 1973, c. 27.
McGILL LAW JOURNAL
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Similarly, under section 15(1)(b)(ii), a deportation order could be
nullified by showing “the existence of compassionate or humani-
tarian considerations that in the opinion of the Board warrant the
granting of special relief”. The term “refugee” was not even men-
tioned in the Act. Persons claiming to be refugees had to fit them-
selves within one of the available categories without ever raising
the legality of their refugee status directly.76
It is important to note the flexibility of the former discretionary
powers. “Refugees” under the previous legislation could use the
threat of punishment for political activity, claim unusual hardship,
or invoke compassionate and humanitarian considerations in their
efforts to avoid the execution of a deportation order. Even after the
1973 amendments and the adoption of the Convention definition,
failure to bring himself squarely within the ambit of the definition
did not preclude a refugee claimant from alleging unusual hardship
or from pleading for compassion. Thus, many “near refugees” who,
in the Board’s interpretation, did not fit within the definition never-
theless were allowed to remain in Canada by proving the existence
of other facts relevant to the unusual hardship or compassionate
jurisdiction. Proof of facts to satisfy the definitional requirements
was not essential as long as the person could at least achieve stand-
ing to appeal. 7 As stated earlier, the new Act does not allow the un-
successful applicant this luxury.78 Therefore, the definition of “re-
fugee” adopted from the Geneva Convention has taken on extreme
importance in immigration law. It is imperative that Parliament’s
belief that this definition provides an adequate standard not be
found to have been misplaced. An unduly technical interpretation
of its terms could cause much unnecessary hardship.
16See Janzen & Hunter, The Interpretation of Section 15 of the Immi-
gration Appeal Board Act (1973) 11 Alta L. Rev. 260.
77 It should be noted that prior to 1973, standing to appeal to the Board
was as of right. After that date severe restrictions were placed on the cate-
gories of eligible appellants. One eligible category, according to s. 11(3) of
the Immigration Appeal Board Act, involved persons claiming to be “re-
fugees protected by the Convention”. After a preliminary hearing on that
point, refugee claimants would normally succeed in establishing their cases
during the actual appeal. As to the proper procedure, see M.M.I. v. Diaz-
Fuentes [1974] 2 F.C. 331 (C.A.); Lugano v. M.M.I. [1976] 2 F.C. 438 (C.A.);
Masle] v. M.M.I. [1977] 1 F.C. 194 (C.A.); and Woldu v. M.M.I. [1978] 2 F.C.
216 (C.A.).
78 Supra, text accompanying note 55. Even individuals who have been
determined to be refugees by the Advisory Committee or the Appeal Board
can still be ordered deported by the adjudicator. With a right of appeal con-
cerning questions of law, only a segment of those ordered deported have
access to the compassionate and humanitarian jurisdiction of the Board.
19791
REFUGEES AND THE IMMIGRATION ACT
A. Well-founded fear
The case of Diaz-Fuentes is perhaps one of the best illustrations
of a Canadian interpretation of the Convention definition. 9 Since
the definition alone has been incorporated into Canadian legislation,
only its wording and its relationship to the statutory scheme may be
considered judicially.60 It is very clear that in cases of this nature
the applicant will bear a heavy onus of proof.8’ The Board held that
the key words in the definition were “owing to a well-founded fear
of being persecuted”, and that these words “are subject to an
objective assessment … based on proof the burden of which rests
with the person who claims to be such a refugee; the definition is
to be applied strictly. …
[O]nly persons who conform to this de-
finition are to be declared refugees”.2
In another case, the Board declared that
fear, even well-founded or reasonable fear,
is a subjective feeling
within the person who experiences it. Its compelling and constraining
power can vary in intensity from one person to another and should be
evaluated in the light of the particular circumstances of each case.
However, this evaluation must be made objectively by the court …. 83
The subjective fear of the applicant is to be assessed objectively:
is it reasonable in the circumstances that the claimant feel a fear
of being persecuted? Such a test, with the onus of proof on the ap-
plicant, indicates the importance of establishing facts through
evidence. Counsel will frequently be involved with questions of im-
mense international import. Expert witnesses must be used to testify
79 (1974) 9 I.A.C. 323.
80 See M.M.I. v. Diaz-Fuentes, supra, note 73, 337 per Pratte J.: “The ‘United
Nations Convention Relating to the Status of Refugees’ is only referred to
once in the Immigration Appeal Board Act. … Consequently [this] fact…
does not have the effect of incorporating into Canadian domestic law the
prohibition contained
in that Convention against deporting refugees. Ac-
cordingly, a deportation order is not invalid merely by virtue of the fact
that it was made against a refugee protected by the Convention”. This de-
cision had the cffect of overruling the Board’s practice as evidenced by
cases such as Cylien (1973) 9 I.A.C. 72, rev’d [1973] F.C. 1166 (C.A.) and Kovar
(1973) 8 I.A.C. 226. The same rule should apply to the Immigration Act,
1976, since the definition is the only Convention element specifically adopted;
however, s. 55 does embody the prohibition against refoulement to some
degree. The procedural aspects of M.M.I. v. Fuentes in the Federal Court of
Appeal would appear to be still relevant: see ss. 70(2) and 71(1) of the
Immigration Act, 1976, S.C. 1976-77, c. 52.
81 See, e.g., Phuoc (1970) 8 I.A.C. 90 and Hernandez (1972) 5 I.A.C. 1.
82 Supra, note 79, 329. See also Mingot (1975) 8 I.A.C. 351 and Sdv~re (1975)
9 I.A.C. 42.
83 Mingot, supra, note 82, 356 per Houle, Vice-Chairman.
McGILL LAW JOURNAL
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about the political structure of the applicant’s former home country
in order to support the allegations of persecution. Fundamental
questions of democracy and legitimate governmental control are
frequently raised. The humanitarian thrust of the refugee problem
can be lost in a maze of political manoeuvres.
In the Diaz-Fuentes case, 84 the successful claimant was a Chilean
national who had left the country shortly after the military over-
throw of President Allende in September of 1973. His “well-founded”
fear of persecution was established by the testimony of no less than
seven witnesses. Some were able to relate stories of arrest, de-
tention, torture, and death of relatives, inflicted on them by reason
of their membership in a certain union and socialist political party
(to which the claimant also belonged). Others, who had recently
been in Chile or who had some expertise in the situation, were able
to testify to the general state of affairs after the coup. The applicant
was thus able to demonstrate that he would be persecuted for his
political opinions if he returned to Chile. The fact of past perse-
cution (which indicated a reasonable apprehension of further perse-
cution if deported) and the fact that the applicant had worsened his
position in the view of Chilean authorities allowed the Board to
make an objective assessment that the applicant came within the
strictures of the Convention definition. It is clear that landed immi-
grant status was granted on the basis of the strength and quality of
the evidence presented.
B. Ongoing flight
While the claimant must prove his case by evidence on a balance
of probabilities, and some cases indicate that the claimant should
receive the benefit of the doubt,85 the decisions of the Board have
established further requirements. Although the idea of ongoing
flight from persecution in the former country of residence to Ca-
nada has not been built into the definition the way it has in the
United States,”” other criteria suggested by the Board in relation to
84 Supra, note 79.
5Mingot, supra, note 83.
86 !mmigration and Nationality Act of 1952, 8 U.S.C. 1153(a)(7)(A) (1970).
See. e.g., Rosenberg v. Yee Chien Woo 402 U.S. 49, 57 (1971) per Black J.,
quoting with approval the decision of the District Director of the Immigra-
tion and Naturalization Service. The U.S. Supreme Court held that “physical
presence in the United States [must] be a consequence of an alien’s flight in
search of refuge” and that “the physical presence must be one which is
reasonably proximate to the flight and not one following a flight remote
in point of time or interrupted by intervening residence in a third country
1979]
REFUGEES AND THE IMMIGRATION ACT
the reasonableness issue seem to imply a necessity for a continuous
unbroken flight from persecution. The Convention itself might be
construed as requiring this element. Article 1 (c) (3) states:
This convention shall cease to apply to any person… if …
(3) He has acquired a new nationality, and enjoys the protection of the
country of his new nationality …
Article 1(e) further provides:
This Convention shall not apply to a person who is recognized by the
competent authorities of the country in which he has taken residence
as having the rights and obligations which are attached to the possession
of the nationality of that country.
These clauses were intended to be limitations on the scope of the
refugee definition. Persons who had acquired a new nationality or
a new residence which included rights similar to those of nationals
were not to be given carte blanche to use their former refugee status
as a method to subsequently gain entry to any country in the world.
The refugee’s assimilation and resettlement in another country
where a olaim to persecution could not be substantiated is treated as
a solution to his problem. The question is clearly whether or not
resettlement in another country, prior to the blaim for refugee
status in Canada, is fatal to the claim.
The Board assumed in three cases that a claim must be deter-
mined in relation to the claimant’s country of residence and not in
relation to the country which originally prompted the emigration.87
All of the claimants had been granted a form of refugee status in
other countries after their original flight from persecution. The
Board was satisfied that each individual could legally return to the
country of resettlement,8 8 although in the face of some conflicting
evidence, it was of the opinion that the refugee’s fear must be
established in relation to the country of resettlement rather than
the original land. Thus the individuals concerned could only enter
Canada through the normal process of immigration; their refugee
claims were rejected. In none of the cases did the Board embark
on an analysis of the quality of the refugees’ status in their new
reasonably constituting a termination of the original flight in search of
refuge”. The relationship of ongoing flight to credibility was touched on
recently in Villarroel v. M.M.I., F.C.A. Mar. 7, 1979, No. A-573-78 (unreported)
per Pratte J.
87See Harmaty (1976)
(1977)
(Czechoslovakia to the U.S.).
11 I.A.C. 202 (Hungary to England); Haidekker
11 IA.C. 442 (Hungary to Switzerland); and Kovar, supra, note 80
88 1t should be noted that although there was no evidence that Harmaty
could not return to England, it was not clear that he could return: Hiarmaty,
supra, note 87.
McGILL LAW JOURNAL
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countries as compared to that of nationals of those countries. This
would seem to be the correct test, according to the Convention. 9
In HUrt v. M.M.L, the Federal Court of Appeal reviewed a judg-
ment of the Board which refused to consider the claim of the ap-
plicantOO The applicant had claimed status as a refugee from Poland,
although it seemed that he had lived for five years in West Germany
on a temporary visa which was due to expire and would not be
renewed. The applicant had Polish nationality and claimed to be a
refugee from Poland. But the Board had stated that:
the appellant is not a refugee from West Germany where he had spent
a period of five years. … Mr. Hurt did not suffer any persecution while
he was in Germany ….91
The Court was clearly of the opinion that the Board, in exercising
the discretionary power given it by statute,92 had asked itself
the wrong question. The proper question was whether
the
claimant was a refugee from Poland, the country which had prompt-
ed his original flight and not whether he was a refugee from West
Germany, his location of temporary resettlement. It was apparent
that the Board had formulated an over-rigid policy in regard to the
“resettlement elsewhere” issue. The quality of resettlement
(in
terms of whether the applicant has acquired rights and obligations
equivalent to those of a national) should still be a relevant ques-
tion. However, this is only one element of the claim. The country of
origin must still be examined for evidence of persecution, although
89 189 U.N.T.S. 150, Arts. 1(C)(3) and I(E). Certainly, a distinction has
always been made between the countries of first arrival and final resettle-
ment. It is recognized that refugees will have to escape to the nearest
country in cases of upheaval; yet this country should not have to bear the
total responsibility for the refugee migration. If refugees become resettled
in a manner similar to that of nationals, the problem has been resolved;
however, mere residence alone should not deter a Canadian application
from proceeding on an inquiry as to the original reasons for persecution.
Canada is rarely the nearest or most convenient country of refuge. In many
cases refugees are accepted in new countries, but the rights and obligations
granted them clearly indicate that they must survive at the bottom of the
legal, economic and social structure. For example, Austria frequently re-
ceives refugees from the Communist Bloc countries and Kenya grants entry
to many African refugees. However, the status of these refugees is not one
of equality with nationals. This type of discrimination may not be sufficient
to constitute’persecution under the Convention, but is an outgrowth of the
refugee’s original reason for migration. It is unfair to use such a distinction
to negate the refugee’s claim in Canada without a full and open inquiry
into all the circumstances.
90 [1978] 2 F.C. 340 (C.A.).
9 1 Ibid., 341 [emphasis added].
92 R.S.C. 1970, c. 1-3, s. 11(3) as am. by S.C. 1973, c. 27, s. 5.
1979]
REFUGEES AND THE IMMIGRATION ACT
this may become unnecessary where a bona fide resettlement has oc-
curred elsewhere. However, the duty to decide is not abrogated by
the fact of a resettlement; an evaluation of all the circumstances is
required. The adoption of any other approach would allow the
Board to value form over substance, and would permit Canada to
reject refugees without an evaluation of the merit of their claims9 3
There are a number of factors that should be considered in
viewing the credibility or plausibility of the claim. Firm resettle-
ment elsewhere may be a factor negating a “well-founded fear”.
Similarly, the timeliness of the application is important. Applicants
living in Canada as visitors or with employment visas prior to their
applications should be viewed with some skepticism. Their delay
in seeking refugee status could very well negate the reality of their
fear of persecution. In addition, individuals who provide false in-
formation on their applications for admission, or who only raise
refugee claims when faced with the possibility of deportation, may
severely damage their credibility, as such a manoeuvre indicates an
attempt to avoid the normal immigration process and a frivolous
claim. Nevertheless, these factual circumstances must only be viewed
as indicia of the claim as a whole. The humanitarian basis of the
refugee admission should remain the central focus. It may be unfair
to require strict criteria such as ongoing flight, continual fear, or
lack of delay when dealing with such problems. True refugees are
quite likely to be fearful and suspicious of governmental authority.
None of these factors should be considered sufficient reason to
reject a claim. At best they only contribute to the value of the
evidence presented. They cannot be substituted for an evaluation
on the merits.
C. Persecution
The major difficulty with the definition involves the legitimate
criteria for “persecution”. Not every form of persecution validates
93A similar problem is the question of statelessness. See Convention on
the Reduction of Statelessness, U.N. Doc. A/CONF. 9/15
(1961), acceded
to and ratified by Canada. Although statelessness alone should not be sufficient
to satisfy an individual claim to refugee status, the Board should have a
strict duty to examine all the circumstances surrounding the failure to
acquire a nationality. In Chiu (1975)
10 I.A.C. 249, a Chinese citizen found
refuge in India after the Indo-Chinese War of 1963. His attempts to gain
Indian citizenship were rejected as not in compliance with Indian law.
Evidence showed that he was singled out because of his race and conse-
quently suffered restricted freedom of movement and economic hardship.
Yet the Board disposed of his case by showing that, he could return to
India, without dealing with the issue of whether he was a refugee from China.
McGILL LAW JOURNAL
[Vol. 25
a claim to protection as a refugee, but only persecution by reason of
“race, religion, nationality, membership of a particular social group
or political opinion”. 4 Cases in Canada, for the most part, have
concerned themselves with the meaning of “political opinion” and
“social group”.
1. Political opinion
Prior to the adoption of the Convention definition, the Board
was able to prevent deportation of an individual who could show
that “he [would] be punished for activities of a political character”P0
Cases interpreting this phrase took a rather restrictive approach.
In the words of two authors:
Punishment is defined as punishment by the state and according to law.
An activity takes on a political character only when it challenges govern-
mental authority in a public way 9 6
Thus, under the former section, if there were no punishment by
law within the home country or if an act were not a public
challenge to the authority of the state, no “political” activity within
the meaning of the Act had occurred. 7 It
is important to de-
termine whether the Board has widened its approach to “political
opinion” or whether its past restrictive approach to matters of
this type has continuedP8
94189 U.N.T.S. 150, Art. IA.
95 Immigration Appeal Board Act, R.S.C. 1970, c. 1-3, s. 15(1)(b)(i).
00 Janzen & Hunter, supra, note 76, 275. See also the Phuoc and Hernandez
cases, supra, note 81; Bourret (1969) 6 I.A.C. 414; Petersen (1968) 7 I.A.C. 222;
Daniolos (1971) 2 I.A.C. 434; and Zisimopoulos (1972) 3 I.A.C. 343.
97Janzen & Hunter take issue with this restrictive approach; see ibid., 276:
“But is it not true that in the police state realities of the twentieth century,
many ‘punishments’ take place with the authorisation of government but
without regard to law, and do not some of these ‘atrocities’ occur res-
pectably cloaked in the mantle of kafkaesque [sic] trials and sham legality?
… We would submit that some private challenges are activities of a political
character as well. For example, to desert the military or to refuse to serve
in it could be ‘political’ … if it were motivated by a fundamental disagree-
ment regarding the political objective for which the military forces were
being used…”.
9 8 A useful comparison can be made with the field of extradition where it
has long been held that international fugitives from justice should not be
returned where the offence is “of a political character”. See La Forest,
Extradition To and From Canada 2d ed. (1977), 61-82, and Castel & Edwardh,
Political Offences: Extradition and Deportation – Recent Canadian Devel-
opments (1975) 13 Osgoode Hall L.J. 89. It appears that Canadian courts
have denied any jurisdiction to qualify and define the phrase “offence of a
political character” for fear of usurping the executive prerogative
to cri
1979]
REFUGEES AND THE IMMIGRATION ACT
A straightforward illustration of the problem is shown in the
Bilic case.99 A Yugoslavian national, of Croatian ethnicity, was a
member of the Hrvatska Matica organization (an anti-Communist,
pro-Croatian oultural and political group). Although this group
bad been banned by the Yugoslavian government, it continued to
operate in a clandestine fashion. Membership alone would con-
stitute sufficient ground for arrest and imprisonment “by law”.
In addition, the claimant stated that, as a result of his presence at
official Communist Party meetings in his hotel, he had gained
access to secret Communist government information and he had
illegally supplied this information to the Matica organization. On
learning that he was to be arrested, he fled to Austria and even-
tually came to Canada as a visitor. The Board granted him landed
immigrant status on the basis of a successful refugee claim. The
applicant obviously had a well-founded fear of being persecuted
for reasons of his political opinions and his membership
in a
particular social group. Even though the applicant’s evidence was
not substantial and there had been a delay in bringing the claim,
his case was not thereby prejudiced. The Board appears to be
sympathetic toward Eastern European anti-communists, perhaps
because these claimants have accepted Western ideology, perhaps
because of the Board’s understanding of the conditions of life in
these countries.4
ticize foreign governments. See Re State of Wisconsin & Armstrong (1973)
10 C.C.C. (2d) 271 (F.C.A.) and Re Peltier [1977] 1 F.C. 118 (T.D.). Compare
the more liberal English approach on this question in Schtraks v. Govern-
ment of Israel [1964] A.C. 556 (,H.L.).
99 (1974) 10 I.A.C. 413.
100 U.S. immigration laws show a blatant preference for certain ideological
views held by eligible refugees. Only aliens who have fled from Communist
or Communist-dominated countries, or from the general area of the Middle
East, are eligible to apply for immigration from outside the U.S. by con-
ditional entry and adjustment of status under s. 203(a)(7) of the Immigra-
tion and Nationality Act of 1952, 8 U.S.C. 1153(a)(7)
(1970). See Kap,
Refugees Under United States Immigration Law (1975-76) 24 Clev. St. L. Rev.
528, 530. There are other methods of entry, however, without these necessary
qualifications. See Gross, Refugee-Parolee: The Dilemma of the Indochina
Refugee (1975)
13 San Diego L. Rev. 175. The general English experience
can be gleaned from Evans, Immigration Law (1976). An interesting analysis
of the English immigration process is to be found in Moore & Wallace,
Slamming the Door, The Administration of Immigration Control (1975).
Recently in Orellana v. M.E.I., F.C.A., July 25, 1979 (unreported), rev’g on
other grounds the decision of the I.A.B. rendered Dec. 19, 1978, Kelly D..
alluded to the proper test to be used in examining the claimant’s political
activities. He stated that “the crucial test in this regard should not be
whether the Board considers that the Applicant engaged in political activi-
McGILL LAW JOURNAL
(Vol. 25
2. Social group
In cases involving a less distinct ideological separation, the
Board has assumed the task of cohfining the “social group” and
“political opinion” terminology of the definition. A stricter test
was suggested in a series of cases dealing with Haitian nationals
who attempted to enter Canada as refugees to escape the reac-
tionary Duvalier regime.’ 0′ The successful olaim in Diaz-Fuentes02
is not typical of the Board’s approach to refugees from the Western
Hemisphere. Counties with anti-Communist leanings and major
participants in the multi-national capitalist economic systems seem
incapable of producing refugees under the present Canadian inter-
pretation of the Convention definition. The principle of the inter-
national comity of nations would seem to play an important role
in cases of this type.
The Sdvre decision involved a Haitian citizen who entered
Canada as a visitor (with a return airline ticket) and was ordered
deported upon his arrival. He launched an appeal to the Board
claiming protection as a Convention refugee. The Board responded:
International doctrine and jurisprudence hold that this definition must
be strictly applied [and] … mere apprehension about possible future
hardships and maltreatment is not sufficient.103
In all cases, it is the responsibility of the person claiming the status
of refugee protected by the Convention to establish the credibility and
plausibility of the fear which he feels or by which he is possessed, and
to answer all questions frankly. For its part, the court in authority
should see to it that the Convention is not used as a means of evading
the laws and regulations governing immigration into the host country,
and which would otherwise apply.104
In one of the clearest statements of the nature of “persecution”
required under the definition, the Board said that “this concept
is always associated with the idea of constant infliction of some
mental or physical cruelty”. 05 Certain things were excluded from
the definition:
[Flear of being legally prosecuted before regular courts, of being punish-
ed for refusing to do military service or deserting, difficult economic
ties, but whether the ruling government of the country from which he
claims to be a refugee considers his conduct to have been styled as political
activity” (Reasons for Judgment, 5-6). It would seem that this statement
constitutes the proper standard.
101See Mingot and Sdvre, supra, note 82, and Belfond (1975) 10 I.A.C. 208.
3o2 Supra, note 79. This case was overruled on other grounds: supra,
note 77.
o3 Supra, note 82, 46-47.
104Ibid., 47 [emphasis in original].
105 Ibid.
1979]
REFUGEES AND THE IMMIGRATION ACT
conditions [or] political dissent –
constitute a fear of persecution as defined in the Convention. 106
even when open –
…
[cannot] …
These statements constitute the strictest application of the defini-
tion to date.
The Board seemed to prefer form to substance in attempting
to rank the honesty and openness of the applicant as the primary
consideration. The applicant had lied on arrival and had only
formulated his intent to apply for refugee status when deportation
became inevitable; this was fatal to his claim. It is important that
some compassion exist in cases of this nature. The desire not to
return to a place where his life may be in danger is frequently the
refugee’s prime motivation. With little knowledge of the Canadian
immigration process, the individual may not even know of the
existence of the privilege to claim protection as a refugee under
the Act. The timeliness of the application does not make an indi-
vidual any more or less of a refugee until all the facts are examin-
ed. That the applicant will demonstrate fear is expected; is it not
logical that this fear will carry over into dealings with govern-
mental authorities generally? 017
S6v~re was a member of a cultural group with socialist tenden-
cies, called the Coumbite, that engaged in theatrical productions
which were highly critical of governmental policies in Haiti. Its
leaders were consequently harassed and arrested by the police and
the Tonton Macoute Militiamen. The applicant testified that he
narrowly escaped arrest many times, remained in hiding for four
years, and then escaped to the Bahamas. Five witnesses testified as
to the social and political circumstances in Haiti, but none was
able to testify specifically to the occurrence of events involving
the claimant. Despite the fact that an applicant will rarely be able
to find a personal acquaintance in Canada able to corroborate his
story, the Board rejected the evidence of the witnesses as unreliable
because it was hearsay.’08 Although the Board’s decision must be
106 Ibid.
107 Counsel for S~v~re had provided an explanation of his client’s be-
haviour. “I shall ask the Court to take into consideration my client’s psy-
chological condition on his arrival at Dorval. Here was a person who lived
in hiding for four years in Haiti and for several more months in the Baha-
mas”: [reporter’s translation] ibid., 49. The applicant also said: “I did not
know how things were done here; I had no idea at the airport and I did not
wish to present the claim there because I knew that such status could not
possibly be granted before I passed through the airport”: [reporter’s trans-
lation] ibid., 50.
108 The Board, however, operates under less rigid rules of evidence and
procedure than do courts of law: Immigration Act, 1976, S.C. 1976-77, c. 52,
s. 65(2)(c).
McGILL LAW JOURNAL
[Vol. 25
based on the application of the Convention definition to the evi-
dence adduced, humanitarian considerations should surely give to the
applicant the benefit of the doubt, especially where corroborative
testimony as to specific facts may be difficult, if not impossible,
to achieve.
The Board finally classified the Coumbite as akin to a “literary
circle”.10 9 But is this not at least a “social group”? Since the defini-
tion does distinguish between membership in a “social group” and
“political opinion”, is it necessary that a “social group” be defined
as one which has “political opinions”? Even if the Coumbite were
only a cultural or social group, were not its members persecuted?
Would they not be persecuted if returned to Haiti? The Board
seems to have acknowledged this fact:
It is conceivable [that the applicant was sought by the police for arrest]
because under a dictatorial regime and in a police state, oppressive and
arbitrary treatment are the rule and any activity –
even of a cultural
nature – may be suspect. However, S6v~re was not a leader; he merely
took part in demonstrations. … Under the Convention, dissent –
even
open dissent – does not suffice for a person to be declared a “refugee”. 110
In the end the Board held that the claim was a “futile and frivo-
lous” attempt to evade the normal process of law: a “flagrant abuse
of the Convention”.”‘ This astounding conclusion could only be
reached by equating “social group” with “political opinion” under
the definition, and by unduly limiting the definition through striot
requirements of proof.
The Haitian national in the Mingot case” 2 met with a similar
rejection. Again the Board criticized the applicant for seeking to
come to Canada as a visitor and considered his return airline ticket
as undermining his oredibility. The claimant was a salesman in a
clothing store which supplied the Tonton Macoutes (military po-
lice) and was constantly harassed and mistreated by them. Evi-
dence indicated that another salesman had been killed by the
Macoutes for a trivial matter.”3 The Board concluded that the claim-
‘o9 Supra, note 82, 55.
110 Ibid.
“‘ Ibid., 56.
112 Supra, note 82.
113The Board considered that this incident could not be attributed to
governmental action; the murder could not be considered to be legally
authorized by the government through its agents, the Tonton Macoutes.
It seems rather naive to suggest that “persecution” must emanate directly
from the government in order to qualify under the definition. It cannot be
assumed that all legal systems operate under the theory of the rule of law.
19791
REFUGEES AND THE IMMIGRATION ACT
ant showed only an apprehension of maltreatment and not “persecu-
tion” as defined in the Convention. 114
To be sure, the claimant had not publicly alleged his violent
disapproval of the governmental system. He feared for his life
because of his social and economic position as a shopkeeper. He
wished to leave because existence was intolerable in a police state.
Yet this very fact was fatal to his claim: refugees are not accepted
because they seek a “healthier social atmosphere”?15
The apprehension or calculation of the hardships which may be the
lot of an entire group of people; and the reasonable desire to improve
one’s condition in life, either psychologically, socially or morally, are
not sufficient justification for the Court to exercise its discretionary
powers.”n
The Board appears to be effectively acquiescing in the political
structures which exist in many unfortunate countries. Refugees
undoubtedly have a desire to improve their living conditions; how-
ever, under the prevailing interpretation, mere mention of this
fact can destroy the basis of the claim. Certainly the integrity of
the immigration structure must be protected; one wonders, though,
if it is necessary to stipulate such formal standards of proof. Not
every claimant is attempting to avoid the rigours of the immigra-
tion system; most are attempting to save their lives.
In the Belfond case 1 7 the same reasoning was applied to an-
other Haitian refugee claimant. Here the applicant had spent two
years in Canada and was afraid to return to Haiti because he
feared that the Haitian government considered Haitians in Canada
as anti-Duvalier and subversive and would subject them to persecu-
tion on their return. He was a member of the Bureau de la Com-
munautg chrdtienne des Haitiens de Montrdal, and the Minister
of Information in Haiti had stated publicly that these individuals
were to be regarded as subversives if deported to Haiti. The Board
seemed concerned to avoid the practical implications of granting
refugee status in this case; however, the Board is surely empower-
ed to deal with cases on an individual basis. The fact that a decision
might allow others in similar circumstances to gain access to re-
fugee protection should not negate the case of the claimant before
the Board. It certainly cannot mean that the individual claimant
1 Supra, note 82, 356.
11 Ibid., 354 [reporter’s translation].
11 Ibid., 367.
17 Supra, note 101.
McGILL LAW JOURNAL
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is not a refugee because of the. practical limitations of dealing with
a large number of people in a similar situation.”18
The applicant, however, did not present testimony relevant to
his particular circumstances, and did seem to be presenting a case
for the Bureau. The Board limited the term “social group” very
specifically:
Either the group must be political and proclaim and exhibit dissidence
with the regime or be a religious sect which has been persecuted by
the civil authorities because of its religious beliefs. In a multinational
state, a racial minority might constitute such a group.119
Under this analysis, nothing is gained’by the insertion of a “social
group” in the definition, as political opinions, religion and race
are all specifically mentioned. “Social group” must have a further
significance32
The definition of “social group” was further narrowed in the
case of Thomas in which an escapee from the Kentucky State Re-
formatory claimed protection as a refugee.” The claimant had
been sentenced to ten years’ imprisonment for robbing a gas station
of forty dollars. While in prison, he was physically abused, raped,
beaten and threatened with death by fellow inmates. His claim
stated that he had a “well-founded fear” of being persecuted as a
result of membership in a particular social group, namely in-
carcerated persons in the United States of America. The Board
properly refused the claim. Its comments on the expression “par-
ticular social group”, however, are illuminating:
118 Ibid., 225: “The Immigration Appeal Board is not a United Nations
Commission, responsible for investigating the political regimes of various
countries”. On the contrary, how can the Board evade this responsibility?
Some input concerning various political regimes must occur in order to
fully appreciate the nature of the refugee’s claim. Justice cannot be done
unless the claim is evaluated in light of all the surrounding circumstances;
what may be a perfectly tolerable political stance in Canada may be the
subject of persecution in a military dictatorship. But this cannot be de-
termined without some evaluation of another country’s political structure.
119 Ibid., 222.
120 Haitian nationals have caused extreme difficulty in the interpretation
of the Convention definition in both the U.S. and Canada. It has frequently
been argued that persons who might leave for economic reasons will never-
theless be politically persecuted if returned home for having claimed pro-
tection in another state: see Dernis, Haitian Immigrants: Political Refugees
or Economic Escapees? (1976) 31 U. Miami L. Rev. 27, and Lieberman &
Krinsky, Political Asylum and Due Process of Law: The Case of the Haitian
Refugees (1976) 33 Guild Practitioner 102.
221 (1974) 10 I.A.C. 44.
1979]
REFUGEES AND THE IMMIGRATION ACT
[T]he expression “particular social group”, as used in the definition,
is intended to denote a group that would suffer because its loyalty to
the government is distrusted or because the political outlook of its
members is held to be an obstruction to the government’s reforms.
… The Geneva Convention was not created to protect foreigners who
are fugitives from justice and neither can the criminal sentence which
the claimant received be considered as a measure of persecution in the
sense of the Geneva Convention since this sentence was of a non-political
character. The Geneva Convention allows no reason for justifying
refugee status on the basis of the offensive actions of private persons.
Persecution must always stem from those in power or must be condoned
by those in power. There is no evidence before the Board that the state
government has condoned this behaviour on the part of his fellow-
inmates and therefore the claimant does not appear to fall within this
category. 22
The only relevant social group under the Canadian interpretation
of the definition is thus one that both expresses political opinions
and is persecuted directly by government institutions.123
IV. Appraisal of refugee procedure
While the overall treatment of refugees under the Immigration
Act, 1976 must be viewed as an improvement over former proce-
dures, some confusion remains. There is no systematic or logical
progression in the procedures for determining refugee status. Pro-
122 Ibid., 47.
123 It
is interesting that the Board suggested that protection might be
granted if the appellant could show he was convicted of a political offence.
In Mingot, supra, note 82, 357, the Board said “that the Convention refers
to political opinion, not political acts”. If the Board in Mingot was suggest-
ing that no protection would be granted to refugees who had carried their
political opinions into action through deliberate violations of criminal law,
it would be interpreting the definition so as to render it meaningless. As
stated by Plender, supra, note 27, 56: “It
is seldom the mere possession of
an opinion that attracts persecution; rather it is its expression”. See also
Fogel (1974) 8 I.A.C. 315, where a black woman from the U.S. who had
denounced her citizenship and claimed persecution by the FBI was denied
refugee status. It is highly unlikely that anyone from the U.S. will ever
be able to successfully claim refugee status on any grounds. Note that the
Board also stated that the Geneva Convention was not created to protect
foreigners who are fugitives from justice. One might ask a similar question
about the Immigration Act, 1976. Was it created for the purpose of re-
turning foreigners who are fugitives from justice? Extradition is imbued
with the venerable protections for the accused available in the criminal
process. Deportation is a civil proceeding. The cases of Hernandez, supra,
note 81 and Hogan (1972) 5 I.A.C. 360 are really extradition cases disguised
as deportations. As to U.S. practice in this regard, see Abramovsky & Eagle,
U.S. Policy in Apprehending Alleged Offenders Abroad: Extradition, Ab-
duction or Irregular Rendition? (1977) 57 Oregon L. Rev. 51.
McGILL LAW JOURNAL
[Vol. 25
visions concerning refugees are scattered throughout the statute
and the procedure remains highly complex and unnecessarily
lengthy. Too many hearings must be held and too many officials
must participate in the process before any case can be concluded.
An immigration officer, a senior immigration officer, the Refugee
Status Advisory Committee, the Minister, the Immigration Appeal
Board, and the Federal Court may all be involved in hearings before
a potential refugee will have a definitive answer to his claim. No
one decision maker has authority to deal with a claim in a simple
fashion before the parties. As a result, a uniform and coherent
jurisprudence is unlikely to develop.
A refugee applicant does not receive full procedural protection
in the early stages of his claim. Despite the improvements over the
former system,124 the separation of the fact-finding mechanism
from the actual decision maker is bound to create some injustice.
Untrained immigration officers and claimants unaware of all the
legal details may omit essential elements of the claim. Language
barriers may further complicate the process, although depart-
mental interpreters are provided and the right to counsel has been
stipulated in the statute.’25 Most important, the credibility of the
applicant is assessed by the Committee only on the basis of the
transcript of the applicant’s examination under oath.12
Under the former legislation, courts required strict observance
of the refugee procedure and the immigration officer was often
insulated from judicial review. In Re Sparrow & M.M.I.,1′
the
Trial Division of the Federal Court denied that an American Army
deserter had the right to require a re-opening of his deportation
hearing in order to admit evidence of his refugee claim, even
though he had not been aware, during the course of his hearing,
that such a procedure was available to him. The result of this
decision may hinge on the peculiarities of the old legislation and
the lack of a visible remedy. Re-opening was discretionary 128 and
therefore not a proper subject for mandamus. The Special Inquiry
Officer had no jurisdiction to consider a refugee claim, and tech-
nically such evidence would not be relevant to his decision in
124 These include the removal of the prerequisite of a deportation order
in applying for refugee status and the obligation to supply the claimant
with a copy of the transcript.
125Immigration Act, 1976, S.C. 1976-77, c. 52, s. 45(6).
126Ibid., s. 45(1)-(4).
127 (1977) 75 D.L.R. (3d) 158 (F.C.T.D.).
12 8 Immigration Act, R.S.C. 1970, c. 1-2, s. 28.
1979]
REFUGEES AND THE IMMIGRATION ACT
relation to deportation. However the applicant might have sought
leave to appeal to the Immigration Appeal Board instead.
The difficulty of judicially reviewing the officer who records
the transcript was demonstrated in the case of Ut Nan Lam v.
M.M.I. The Vietnamese applicant had lost his former citizenship
following the fall of South Viet-Nam in 1975. The immigration officer
who transcribed the sworn declaration sought to control the process
of compilation by refusing to permit the applicant’s counsel to ask
further questions which he termed repetitious. The applicant claim-
ed a denial of the principles of natural justice. The Court refused
the application for a writ of mandamus to compel the allowance
of further evidence and treated the immigration officer’s function
as completely investigatory and not an integral part of the decision
making process for refugee claimants. Thus the basic procedural
protections of natural justice would not be available. Walsh I. did
elaborate to some extent:
It is evident that the immigration officer merely presides over the
inquiry, asking the necessary questions (although this does not prevent
petitioner from being represented by counsel who may also ask ques-
tions and presumably call witnesses) and then transmits
the tran-
script to the Committee who makes the decision. He himself makes no
recommendation. 30
Since the function of the officer charged with compiling the tran-
script is not of a quasi-judicial nature, there is no guarantee of a
full. and fair hearing beyond the right to counsel.’ The Committee
and the Appeal Board may be provided with inadequate material
on which to rule. The Act or Regulations should have clarified
this in order to prevent potential abuse.
Although the new legislation has ameliorated the past hardship
caused by requiring refugee claims to be processed under the
umbrella of an unexecuted deportation order, the question has
129 [1978] 2 F.C. 3 (T.D.).
1-30Ibid., 6. It appears once again that counsel may have sought the wrong
remedy. A declaration or injunction may have been more appropriate. In
addition, the possibility of a future appeal to the Immigration Appeal Board
offered further protection. Yet the nature of the declaration before both
the Committee and the Board is of immense significance to the potential
success of the claim.
131 Quaere whether the doctrine of fairness as recently developed in the
case of Re Nicholson & Haldimand-Norfolk Regional Board of Commis-
sioners of Police [1979] 1 S.C.R. 311 might have some application in these
circumstances. See also Mullan, Fairness: The New Natural Justice? (1975)
25 UT.L.J. 281 and Loughlin, Procedural Fairness: A Study of the Crisis in
Administrative Law Theory (1978) 28 U.T.L.J. 215.
McGILL LAW JOURNAL
[Vol. 25
arisen as to whether an individual can apply directly for status
as a refugee claimant. Section 45(1) states that refugee claims
may be made “during an inquiry”, seemingly requiring the invoca-
tion of the removal process before a claim can be invoked. Thus
unsuccessful claimants would be assured of removal from Canada
regardless of how their claim originally arose. In the recently
decided case of Re Hudnik,13 2 the Federal Court of Appeal adopted
this interpretation of section 45(1).
The facts are relatively straightforward and indicative of the
kind of problem frequently encountered in this area. Mr Hudnik,
a Yugoslavian national and crew member of a merchant vessel,
jumped ship in Vancouver and immediately reported to immigra-
tion authorities who commenced removal proceedings against him.
Unrepresented by counsel and unapprised of his right to claim re-
fugee status, he was ordered deported. He subsequently obtained
advice and sought to claim refugee status, but was informed that
he had lost his opportunity to do so since such a claim must be
made “during an inquiry”. An application for mandamus to compel
the processing of his claim was successful at first instance. Using
the non obstante provision of section 6(2), the policies of section 3,
and the United Nations Convention on Refugee Status, Walsh J.
of the Trial Division concluded:
[T~here should be some procedure whereby an Applicant for refugee
status can make such an application and cause an inquiry to be
instituted, rather than being forced to await the commencement of an
inquiry based on a report seeking his deportation and then making his
claim for refugee status as an incident in the course of this inquiry.133
However, on appeal this interpretation was nullified by Mr
Justice Pratte. After stating that the United Nations Convention
was not part of the law of Canada, he held that the Immigration
Act, 1976 did not contain any provision which imposed on the
Minister the duty to consider a claim to refugee status made out-
side an inquiry. The existence of an unexecuted deportation order
thus prohibits the claimant from having the application considered.
The form of the Refugee Status Advisory Committee and the
procedures surrounding its operation are somewhat redundant.
It may be supposed that one of the reasons for establishing such a
cumbersome system of processing was to give the government an
opportunity to review sensitive cases. The international complexi-
la2F.C.T.D., Jan. 26, 1979, No. T-233-79 (unreported), rev’d (sub nom. M.E.I.
v. Hudnik) F.C.A., Aug. 9, 1979 (unreported).
133Ibid., 6. As to the transitional implementation of the new Act and
refugee status, see Riveros-Melo v. M.M.I. [1979] 1 F.C. 344 (C.A.).
19791
REFUGEES AND THE IMMIGRATION ACT
One difficulty is that the Committee is advisory only;
ties of refugee admission may require this additional step; how-
ever, if it is to be included, it should not serve as an excuse for
failures to provide adequate procedural protection to the claimant.
the
Minister is vested with the discretion to make the final decision.134
The extensive use of ministerial discretion in immigration affairs
has had a long history and the present Act is faithful to the tradi-
tion. However, it is likely that the Minister will follow the Com-
mittee’s recommendation.
The Committee does not hold an adjudicative hearing in the
presence of the applicant. In fact, present operational guidelines
specifically exclude the public, refugee claimants, or counsel from
attending or participating in Committee deliberations. 3 5 However,
the Committee sui motu has the power to call expert witnesses, re-
quest advice and information concerning the circumstances exist-
ing in the country from which the claimant fled, and require a
new or further interview of the claimant. 6
A major concern of the Committee is to guard the integrity of
the procedure against frivolous or non-genuine claims; however,
the claimant is apparently to be given the benefit of the doubt in
the absence of conclusive contrary evidence. Nevertheless, in camera
proceedings from which the claimant is excluded cannot lend
themselves to any full treatment or analysis, although there is no
indication that the rate of rejection has been scandalous. The
Committee was not established primarily for the benefit of claim-
ants; no serious effort has been made to afford them a complete,
impartial, alternative admission procedure. Government priorities
are the real beneficiaries. Successful claimants cannot be given a
final determination of their status since further processing is still
required. In this additional step, the claimant is only successful
by default. 37
’34 S.C. 1976-77, c. 52, s. 45(4).
135 Employment and Immigration Commission, Guidelines for the Refugee
instructions obtained from the
Status Advisory Committee (unpublished
Ministry), s. III(b) (vii).
130Ibid., ss. III(b)(viii) and IV(k).
137 Apparently, the Minister has also established a Special Review Com-
mittee which re-examines any negative decisions on status by the Advisory
Committee. This extra committee, composed of public servants alone, can
authorize special action in situations not covered by the present definition.
This committee could be an effective administrative tool if used in a hu-
manitarian manner. Statistics provided by the Ministry indicate that the
success rate of refugee claims handled by the Advisory Committee has been
36.8%. Hon. Bud Cullen, Re: The Case of Ignacio Munoz, Feb. 19, 1979.
McGILL LAW JOURNAL
[Vol. 25
Refugee redetermination hearings before the Immigration Appeal
Board 38 may appear to be an added safeguard, but the difficulty
inherent in successfully gaining the right to an oral hearing makes
the procedure inadequate. The Board must first decide on the
basis of written material whether on the balance of probabilities
there are reasonable grounds to believe the claim can succeed. 1 9
The claimant is not limited to the establishment of a prima facie
case, or to the demonstration of the genuine nature of his deposi-
tion, but effectively has to prove his case without the benefit of
an oral hearing.
This cumbersome two stage procedure seems unduly onerous.
When combined with the elimination of the unsuccessful refugee
claimant’s right to raise humanitarian and compassionate grounds
on appeal in lieu of his refugee claim, it can only be concluded that
the appeal provisions have placed the individual in a less desirable
position vis-h-vis his standing under the former legislation.
Recently, in the case of Villarroel v. M.E.I.,140 a further gloss
was placed on the test to be used by the Board in the screening of
applications for the full hearing. Mr Justice Pratte stated:
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.141
To add this further hurdle to the refugee claimant’s application
is unwarranted.
138 S.C. 1976-77, c. 52, s. 59(1).
1391bid., ss. 70(1) and (2) and 71(1). As to the danger inherent in this
approach under the former legislation, see the Appeal Board’s judgment in
Cylien, supra, note 80, 80: “[I]t would be monstrous to conclude from the
wording of s. 11(3) [of the Immigration Appeal Board Act] that a demo.
cratically elected Parliament in a country under the rule of law intended a
judicial tribunal … in the case of persons claiming to be refugees, to
determine the future fate, or even the life of a man, without a properly
constituted hearing on this point. It is no answer to say that a claimant has
a full opportunity to make his claim, in writing. His declaration of claim is
only part of the evidence; he must have every opportunity to establish, as
the respondent must have every opportunity to contest, his claim to re-
fugee status within the meaning of the Convention”. This strict procedural
requirement has been continued under the present legislation: see Tapia
v. M.M.I., supra, note 47.
14OSupra, note 86.
141 Ibid., 4, n. 3.
1979]
REFUGEES AND THE IMMIGRATION ACT
The final screening process imposed by section 4(2) of the Act
only adds further confusion to the refugee admissions process. A
positive determination on refugee status by the Refugee Status
Advisory Committee, the Minister, or the Immigriation Appeaj
Board must be followed by a further hearing before the adjudicator
to decide whether the refugee shall be removed from Canada as a
security risk. No general determination of refugee status is made
through the various stages of the process. It would seem that a
system of classification ought to have been established to evaluate
all evidence, including security considerations, which relates to
refugee status as a whole.
Criteria applicable to Convention refugees have been drafted
in a very vague and general fashion and pose the threat of removal
based on political grounds.4 2 The adjudicator must in many cases
predict the future pattern of behaviour of the refugee as well as
examine his past record of criminal or quasi-criminal activity. The
exclusions are ambiguously phrased and no allowance is made
for “political crimes”, even though it would be quite reasonable
to assume that refugees may have committed political acts in
their former countries which would be considered offences under
Canadian law. 43 Section 19(1)(f) would expel persons likely to
engage in or instigate the subversion by force of any government.
Many bona fide refugees would continue to work legally within
Canada for the overthrow of oppressive regimes in their former
countries. The resumption of the adjudication
intended to
eliminate serious threats to the security and public order of Cana-
da; yet these sections do not reflect the special nature of the
refugee dilemma nor do they ensure that- a wholly objective ap-
proach will be taken to protect Canada from serious disruptive
violence.
is
Convention refugees who are outside their former countries
and also outside Canada may make an application to an external
visa officer of the Foreign Branch of the Canada Employment and
Immigration Commission at one of the more than sixty offices
abroad.144 It is the visa officer’s duty to determine if the applicant
is a Convention refugee 45 –
a rather complex legal matter for an
142 Of course, an appeal of a decision against a claimant may be available
by virtue of s. 72 of the Immigration Act, 1976, S.C. 1976-77, c. 52.
143 See generally Wortley, Political Crime in English Law and in Inter-
national Law (1971) 45 Brit. Y.B. Int’l L. 219, 226-28.
144 S.C. 1976-77, c. 52, s. 9(1).
145 SOR/78-172 (1978) 112 Canada Gazette Pt II 757, s. 7(1).
McGILL LAW JOURNAL
[Vol. 25
individual who is not necessarily well-versed in all of the intricacies
of such a classification. Granting this essentially uncontrolled
power to an administrative official may lead to potential abuse;
however, this has been a typical feature of Canadian immigration
procedure since the turn of the century. Furthermore, Convention
refugees are not admissible to Canada unless they show that they
can become “successfully established” in Canada. 146 These regu-
lations clearly demonstrate the selective as opposed to the humani-
tarian nature of the policy.
All of the factors which are normally used to determine the
suitability of ordinary immigrants are also applied to refugees.
The labour-oriented criteria of the Units of Assessment 14 are used
to determine if the refugee meets Canada’s employment or in-
vestment needs. Admission may be facilitated by sponsoring groups
in Canada and any other available financial assistance,’ 48 although
it would seem repugnant to the humanitarian philosophy of re-
fugee treatment to require standards of “suitability” similar to
those applied to ordinary immigrants. While the extensive sponsor-
ship possibilities should be praised, the essentially self-serving
process of evaluation should be recognized as contrary to the real
purpose of the international conventions.
Although the regulatory provisions outlined in section 6(2) of
the Act could relieve the difficulties faced by refugees falling out-
side the Convention definition, those regulations which have been
enacted thereunder have made little practical difference, as they
have in effect substituted conditions only slightly less onerous
than those contained in the general regulations.149 However, the
very inclusion of such a provision as section 6(2) indicates that
Parliament may have understood the deficiencies in the current
definition. Its wide scope (evidenced by the non obstante provi-
sion) opens up a reservoir of positive potential which may be tap-
ped by a future administration.
140 Ibid., s. 7(3)(b).
147Ibid., Schedule 1.
14s Ibid., s. 7(2).
49 See Indochinese Designated Class Regulations, SOR/78-931
(1978) 112
Canada Gazette Pt II 4464; Latin American Designated Class Regulations,
SOR/78-932 (1978) 112 Canada Gazette Pt II 4467; Self-Exiled Persons Class
Regulations, SOR/78-933 (1978) 112 Canada Gazette Pt II 4470.
19791
REFUGEES AND THE IMMIGRATION ACT
Conclusion
The continuing plight of the Vietnamese “boat people” has once
again brought the issue of refugee resettlement to the attention of
Canada and the world. The most obvious permanent solution to
the refugee problem is voluntary repatriation to the country of
origin. However, this desirable solution is only possible when
circumstances so permit; assimilation of the refugee into a new
national community is often the only real humanitarian alternative.
It is therefore important that Canada facilitate methods and pro-
cedures that make this alternative a practical reality. As a member
of the international community, and as a signatory to the inter-
national conventions, Canada has a legal as well as a moral duty to
become part of the solution.
Canada’s policies must be described as admirable when com-
pared to those of other states but there are still notable deficiencies.
The current definition of “refugee” should not be held up as the sole
and ultimate frame of reference for claimants simply because of
its recognition by the international community. 150 The legislation
has provided a workable addendum to the definition, but regula-
tions have not been implemented to broaden access and assure that
genuine threats to individual freedom will be viewed objectively
by immigration authorities.
Canada’s refugee policy remains to a large extent subject to the
whims of national foreign policy. Most refugees will continue to
be admitted through special relief programs’ 51 rather than through
the rigorous procedures of the Immigration Act, 1976. Access to
domestic legal processes is not an avallable option for most up-
rooted people.
National economic goals dictate Canada’s economic strategy.
Immigration policy forms a large part of our future economic,
manpower, and manufacturing patterns. Normal immigrants are
constantly required to measure up to the system of control estab-
lished through immigration law to suit these industrial strategies.
This basic thrust of Canadian immigration policy will not be
criticized here, but its application to the question of refugee ad-
mission is not appropriate. Criteria of race, politics, or employa-
bility would all be contrary to the humanitarian spirit of the inter-
150 See Passaris, Input of Foreign Policy: The Immigration Equations Int’l
Perspectives, Nov.-Dec. 1976, 23, 28.
151 By virtue of regulations made under s. 115(1) (e) of the Immigration
Act, 1976, S.C. 1976-77, c. 52.
McGILL LAW JOURNAL
(Vol. 25
national conventions. The highly skilled, educated, and trained
mainstream immigrant may be the focal point of current immigra-
tion philosophy, but refugee admission policy should have a dif-
ferent thrust. The combination of domestic economic considera-
tions and international political alliances serves to make refugee
admissions a very selective process. Selection of “suitable” re-
fugees for Canadian purposes may serve a labour-oriented immi-
gration policy but is contrary to the main purpose of the refugee
resettlement philosophy. Extraneous factors related to Canada’s
domestic needs should not be regarded as an acceptable limitation
on the eligibility of refugees for admission.152
Since the United Nation’s Refugee Year in 1959, the world has
not seen a significant decline in the number of the homeless and
persecuted. Canadian policies certainly are not to be blamed for a
failure to resolve this ongoing tragedy. In terms of actual numbers,
the record has been good. The admission of Hungarians, Czecho-
slovakians, Tibetans, Ugandans, and smaller numbers of Chileans,
Cypriots, South Vietnamese and others attest to this fact. It must
also be remembered that the refugee convention allows each signa-
tory state to establish procedures which comply with its require-
ments. Canada’s recent legislative compliance has been serious and
well-intentioned. Continued Canadian support of the office of the
United Nations High Commissioner for Refugees has contributed
significantly
to its much needed international relief programs.
Private agencies, such as the National Interfaith Immigration Com-
mittee and the Jewish Immigrant Aid Services, have also provided
valuable assistance to refugees in Canada and are being heavily
relied upon to carry out extensive sponsorship programs under
the current legislation. It is not Canada’s comparative record or
effort which can be criticized. 5 3
The theme expressed through international documents such as
the United Nations’ Universal Declaration of Human Rights is the
individual’s right to freedom of movement and the right to leave
any country including his own. 54 Although obviously not respected
152See Dirks, Canada’s Refugee Policy, Indifference or Opportunism (1978),
252. Dirks tries to resolve the question of why most of our special relief
program refugees always seem to be highly skilled and trained.
10-The evolution of Canada’s refugee policy is outlined in Gotlieb, Canada
and the Refugee Question in International Law (1975) 13 Can. Y.B. Int’l L.
3, 7-11.
154 U.N. Doc. A/810 (1948), Art. 13. An interesting case on English problems
with this concept and the E.E.C. is Van Duyn v. The Home Office (No. 2)
[1975] 3 All E.R. 190 (CJ.E.C.). The effect on this area of the International
199
REFUGEES AND THE IMMIGRATION ACT
by all nations, this underlying premise has allowed Canada, as an
immigrant receiving country, skilled manpower resources which
greatly exceed the expenses of our various foreign aid programs.
It would seem that the millions of refugees throughout the world
should be able to share significantly in Canadian good fortune. We
can afford to be guided solely by humanitarian concerns.
The problems surrounding the admission of refugees to Canada
remain to a large extent dependent upon executive prerogative
power. Cabinet initiatives are a precondition to any mass refugee
admission program. Individual refugees must also be escapees
from their country of origin in order to qualify under present
definitional criteria and to be eligible for Foreign Branch admission
consideration. Away from the watchful eyes of the Canadian ju-
diciary or any domestic adversarial review process, the success of
overseas individual refugee applications is subject to potential
“despotic consular absolutism”.155 Within Canada
the refugee
claimant is faced with a complex procedural maze, a heavy onus of
proof, and unnecessary secrecy.
Canadian immigration policy seems to be entering a phase of
restriction and increased selectivity. Current projected immigration
levels will see a reduction in the annual immigrant flow as per-
ceived by the regional demographic needs and labour market con-
siderations.’56 The perception of immigrants as a source of na-
Covenant on Economic, Social and Cultural Rights and the International
Covenant on Civil and Political Rights (1967) 61 Am. J. Int’l L. 861 and 870
remains to be seed. Generally see Fischer, supra, note 5, and Pharand, Annual
Survey of Canadian Law: International Law (1977) 9 Ottawa L. Rev. 505,
536-52.
165 See Note, Judicial Review of Visa Denials: Re-examining Consular Non-
reviewability (1977) 52 N.Y.U. L. Rev. 1137. These terms were originally
coined by Profs. Jaffe and Hart in 1952. They said: “[I]t is indefensible to
give to any man, acting in secret in a remote land, autocratic power to
grant or withhold a privilege of such enormous value as that of entrance to
this country”: House Committee on the Judiciary, 82d Congress, 2d Sess.,
Hearings Before the President’s Commission on Immigration and Naturaliz-
ation 1575, 1578 (1952).
156Minister of Employment and Immigration, Annual Report to Parlia-
ment on Immigration Levels (Oct. 24, 1978) indicates that the target level for
1979 will be 100,000 persons. Canada is expected to become the new home of
up to 50,000 Indochinese refugees within a few years. The program is a
major undertaking of the federal government, but relies heavily on the
private sector to make it successful. Transportation, housing and health
services have been made available. General information can be gathered
from Employment and Immigration Canada, Newsletter, Indochinese Re-
fugees (1979) vol. 1. Recent information indicates that over 10,000 Vietna-
mese & Laotian refugees have already arrived: ibid., No. 13 (Oct. 18, 1979),
App. I.
McGILL LAW JOURNAL
[Vol. 25
tional strength and cultural diversity has become secondary to
other issues. Yet immigration procedure deals with many indivi-
duals composing a disadvantaged minority –
from
poverty, lack of opportunity, and persecution who lack language
skills, knowledge of institutions, and economic and political power.
Immigration policy must also reflect the country’s needs. Although
rarely comprising the root causes of internal domestic problems,
it frequently receives the blame:
escapees
In times of economic or political stress [immigrants] present a ready
and defenseless target not only for the demagogues but also for con-
cerned citizens seeking simplistic answers to complex social and eco-
nomic problems. 157
It is to the advantage of all concerned parties to refuse to let re-
fugees become a casualty of this debate.
157 Roberts, The Board of Immigration Appeals: A Critical Appraisal
(1977) 15 San Diego L. Rev. 29, 33. Mr Roberts is the retired Chairman of
the U.S. Board of Immigration Appeals.
