Date:20000504
Docket:A-54-97
CORAM: STONE, J.A.
EVANS, J.A.
MALONE, J.A.
BETWEEN:
PAVLA CIHAL
Appellant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
Heard at Toronto, Ontario, Thursday, May 4, 2000
Judgment delivered from the Bench at
Toronto, Ontario,
on Thursday, May 4, 2000
| REASONS FOR JUDGMENT OF THE COURT BY: EVANS J.A. |
Date: 20000504
Docket: A-54-97
CORAM: STONE, J.A.
EVANS, J.A.
MALONE, J.A.
BETWEEN:
PAVLA CIHAL
Appellant
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR JUDGMENT
EVANS J.A.
[1] This is an appeal from a decision of Rothstein J., dated January 10, 1997, dismissing an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board, dated July 31, 1992, in which the Board dismissed the claims of the appellant, her son and a family friend to be recognised in Canada as refugees.
[2] There are two grounds for the appeal. First, the Motions Judge erred in failing to find that the time that it took for the claims to be heard by the Board was unreasonable, particularly in view of the age of the appellant, who is now 91 years old, and the frail state of her emotional and physical health; in these circumstances, to reject her refugee claim would constitute a denial of the principles of fundamental justice contrary to section 7 of the Charter. Second, the Motions Judge erred in upholding the Board"s finding that the appellant"s fear of persecution was not well founded.
[3] It is only necessary to provide a brief account of the facts. The appellant, who is of Czech nationality, arrived in Canada in April 1989, and made a claim for refugee status shortly thereafter. Her claim was based on the harsh treatment that she and her husband had received at the hands of the Czech authorities after the Communist Party came to power in 1948, including: the confiscation of their business, Mr. Cihal"s imprisonment, police interrogation and searches of their home, public vilification as "enemies of the state", educational and employment restrictions, and the imposition of a tax that effectively deprived the appellant of her earnings.
[4] However, by the mid 1950s they were both working in restaurants or taverns. And while they never regained the social or economic position that they had enjoyed before 1948, their lives improved considerably after 1953 when Mr. Chihal was released from detention and they were appointed to managerial positions in better establishments.
[5] However, the police continued to take an interest in them. There was evidence that in 1968 the appellant was required by a workplace tribunal to refrain from criticising Communists. In addition, the appellant"s son testified that the police continued to visit his parents" home, perhaps once or twice a year, until 1979. There was no evidence of surveillance after this date and, indeed, the appellant and her son left the country to visit western European countries in 1987, and then returned to Prague, without experiencing any interference from Czech officials.
[6] The appellant"s husband died in1980. The appellant herself had a stroke in 1981 and was treated for cancer which, it was subsequently discovered, she did not have. In addition, she has suffered from depression and was too emotionally unstable to appear before the Board.
[7] The appellant made her refugee claim in April 1989 and the Board started the hearing in June 1991, which was held over seven days and ended in December 1991. The Board rendered its decision on July 31, 1992.
Issue 1: Unreasonable delay
[8] We are prepared to assume for the purpose of argument in this case that an unreasonable delay on the part of the Board in commencing the hearing of a refugee claim can justify quashing a negative decision as being in breach of section 7 of the Charter. However, such an argument will hardly ever succeed (Hernandez v. Canada (Minister of Employment and Immigration) (1993), 154 N.R. 231 (F.C.A.)), and this is not one of those rare cases.
[9] The delay from the date when the appellant made her claim until the start of the hearing by the Board was a few days more than two years. While this is certainly far from expeditious, the delay was not so long as, without more, to be constitutionally suspect. More important, much of it could not be attributed to dilatoriness by the Board. For example, the first hearing was scheduled for September 1989, but was postponed for a month at the request of the claimants; the hearing scheduled for the following month was postponed because one of the claimants needed a sign language interpreter, a need of which the Board had not been advised. Further delays were occasioned because this claimant understand only European sign language. One hearing was postponed at the request of the appellant"s son because his mother was ill; the appellant"s counsel requested another postponement to enable her properly to prepare.
[10] It is not necessary to find the appellant to have been at fault in causing these delays, which in all accounted for about half of the total time taken to get the matter on. Ms. Jackman estimated that no more than six months were the responsibility of the claimants. However, it would be equally inappropriate to blame the Board for the time that it took to get the hearings under way. The claimants" difficulty in retaining a lawyer with whom they were satisfied, the appellant"s poor health, and the various problems of interpretation, made this a particularly challenging case to schedule.
[11] We cannot accept the argument that the appellant"s age and health made the Board"s delay unreasonable. The Board has a very large case load. Ensuring that it is handled in an efficient, orderly and fair manner presents the Board with a considerable managerial challenge. To require the Board to single out cases for early hearings because of the personal circumstances of some claimants would unduly complicate its task, and almost certainly cause injustice to others.
[12] It was suggested that if the appellant"s claim had been heard before the "velvet revolution" in Czechoslovakia in 1990, it would in all probability have succeeded. However, the Court has never accepted that claimants are prejudiced by delay because they would probably have been found to be refugees if their claim had been heard earlier when the state of affairs giving rise to a well founded fear of persecution still existed.
Issue 2: Well-foundedness of the claim
[13] The appellant"s argument was that the Board erred in failing to consider the harsh treatment that the appellant and her husband had suffered in the late 1940s and the early 1950s as part and parcel of the ongoing police surveillance to which they were subject. The Board, counsel submitted, had not viewed the conduct cumulatively or in the context of the earlier repression. Further, the Board erred in law by characterising the earlier events as discriminatory, rather than persecutory.
[14] Had it not made these errors, Ms. Jackman maintained, the Board might well have found that in April 1989 the appellant had a well founded fear of persecution. In that event, the Board would have had to consider whether, as a result of the Communist Government"s fall from power, the appellant had ceased to be a Convention refugee by virtue of paragraph 2(2)(e ) of the Immigration Act R.S.C.1985, c. I-2. If she had, then the Board would have had to determine pursuant to subsection 2(3) whether there were compelling reasons arising out of past persecution for the claimant to refuse to avail herself of the protection of the country that she left.
[15] Despite Ms. Jackman"s eloquence, and the sympathy that we have for her client, we are not able to accept her argument. It is true, as Rothstein J. pointed out, that in its reasons the Board made no express finding that the treatment that the Cihals received in the years 1948 to 1953 was persecution, although plainly it was.
[16] It is not clear to us whether the Board"s references to "the discriminatory acts of the past"(Appeal Book, p. 651) are to the events of the mid 1950s or to the earlier period. However, the reference to the discriminatory acts after 1951 suggests that the Board accepted that the pre-1951 events constituted persecution. On the other hand, the Board goes on to deny that the appellant had suffered past persecution (Appeal Book, p. 653).
[17] Nonetheless, despite this ambiguity, the Board considered the facts as a whole and concluded that in April 1989 the appellant had no well founded fear of persecution: police interference had greatly diminished over the years since 1948 and ended altogether in 1979, ten years before the appellant claimed refugee status.
[18] Whether the admitted facts satisfied the statutory standard is a question of mixed fact and law within the expertise of the Board: Nina v. Canada (Minister of Citizenship and Immigration) (F.C.T.D.; A-735"92; November 24, 1994), para 28. On such a question, the Board is entitled to a measure of judicial deference and the Court should not intervene unless satisfied that the Board was clearly wrong: Pushpanathan v. Canada (Minister of Citizenship and Immigration) , [1998] 1 S.C.R. 982.
[19] Unlike the issue in dispute in Pushpanathan, supra, the legal question involved here in determining whether the appellant suffered persecution within the meaning of the Act is not "easily separable from the undisputed facts of the case" and will not "have a wide precedential value" (para 47).
[20] Since the Board committed no reviewable error when it found that the appellant was not a Convention refugee in April 1989, it was not required to consider whether past persecution constituted compelling reasons under subsection 2(3) for her refusal to return to what is now the Czech Republic.
[21] For these reasons we would dismiss the appeal from the Motions Judge"s decision upholding the Board"s rejection of the appellant"s claim to be a refugee. We are of the view that an application to the Minister to remain in Canada on humanitarian and compassionate grounds is a more appropriate avenue of relief for the appellant, although we also understand that, even if successful in making an application under subsection 114(2), she may not qualify for medical coverage.
"John M. Evans"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: PAVLA CIHAL |
Appellant
- and -
| THE MINISTER OF CITIZENSHIP |
& IMMIGRATION
Respondent
DATE OF HEARING: THURSDAY, MAY 4, 2000
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
| OF THE COURT BY: EVANS, J.A. |
Delivered at Toronto, Ontario on Thursday, May 4, 2000
APPEARANCES: Ms. Barbara Jackman
Mr. Ian Hicks
| SOLICITORS OF RECORD: Jackman, Waldman & Associates |
Barristers & Solicitors
281 Eglinton Ave. E.
Toronto, Ontario
M4P 1L3
| Deputy Attorney General of Canada |
FEDERAL COURT OF APPEAL
Date: 20000504
Docket: A-54-97
BETWEEN:
Appellant
- and -
THE MINISTER OF CITIZENSHIP
& IMMIGRATION
Respondent
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