Sheikh v. MEI (1990), 112 N.R. 61 (FCA)
MLB headnote and full text
In The Matter Of the Immigration Act, 1976, as amended, S.C. 1988, c. 35 and Regulations thereto;
And In The Matter Of a decision of an adjudicator and a member of the Convention Refugee Determination Division of the Immigration and Refugee Board with respect to the credible basis of the claim to Convention Refugee status of Abdulhakim Ali Sheikh;
And In The Matter Of the Canadian Charter of Rights and Freedoms Abdulhakim Ali Sheikh (appellant) v. The Minister of Employment and Immigration (respondent)
(A-521-89)
Indexed As: Sheikh v. Minister of Employment and Immigration
Federal Court of Appeal
Iacobucci, C.J., MacGuigan and Desjardins, JJ.A.
July 4, 1990.
Summary:
The Refugee Determination Division (first-level panel) held that an alien failed to establish a credible basis for his claim to be a Convention Refugee. The alien was, therefore, precluded from having a full hearing before the Refugee Division (second-level panel). The alien applied under s. 28 of the Federal Court Act to set aside the decision.
The Federal Court of Appeal dismissed the application.
Aliens – Topic 1323.4
Admission – Refugees – Credible basis for claim – A Convention Refugee claimant was not entitled to a full Refugee Division hearing (second-level panel) unless he first established to the Refugee Determination Division (first-level panel) that he had a “credible basis” for his claim – The Federal Court of Appeal discussed the standard or threshold for establishing a credible basis – The court stated that a first-level panel could assess and weigh oral and documentary evidence, but not in a manner appropriated only to a full Refugee Division hearing – The court rejected the submission that a credible basis was established if there was any evidence on which the second-level panel might find the claimant to be a Convention Refugee.
Aliens – Topic 1330
Admission – Refugees – Right to counsel – Effective assistance by – [See Civil Rights – Topic 4620.1].
Civil Rights – Topic 4620.1
Right to counsel – Right to effective assistance by counsel – An alien appearing before the Refugee Determination Division to establish a credible basis for his claim to be a Convention Refugee claimed prejudice because his court-appointed counsel allegedly fell asleep several times during the proceedings – The Federal Court of Appeal held that it would be prepared to hold that a sleeping counsel was inherently prejudicial and actual prejudice need not be proved – However, the court stated that the alien failed to adduce sufficient evidence of the scope of the problem for the court to rule in his favour.
Cases Noticed:
Noor v. Minister of Employment and Immigration of Canada, [1989] R.J.Q. 967 (Que. S.C.), disagreed with [para. 6].
Strickland v. Washington (1984), 466 U.S. 668, refd to. [para. 14].
R. v. Garofoli et al. (1988), 27 O.A.C. 1; 41 C.C.C.(3d) 97 (C.A.), refd to. [para. 14].
Javor v. United States of America (1984), 724 F. 2d 831 (9th Circ.), refd to. [para. 15].
Statutes Noticed:
Federal Court Act, R.S.C. 1985, c. F-7, sect. 28 [para. 1].
Immigration Act, R.S.C. 1985, c. I-2, sect. 2(1)(a)(i), sect. 46(1)(c), sect. 46(2) [para. 2]; sect. 46(4) [para. 6]; sect. 46.01(6) [para. 2]; sect. 82.1(1) [para. 1].
Counsel:
Pia Zambelli, for the appellant;
Donald MacIntosh, for the respondent.
Solicitors of Record:
Jackman, Zambelli and Silcoff, Toronto, Ontario, for the appellant;
John C. Tait, Q.C., Deputy Attorney General for Canada, Ottawa, Ontario, for the respondent.
This application was heard on June 18, 1990, at Toronto, Ontario, before Iacobucci, C.J., MacGuigan and Desjardins, JJ.A., of the Federal Court of Appeal.
On July 4, 1990, MacGuigan, J.A., delivered the following judgment for the Federal Court of Appeal.
