The appellants were all convention refugee claimants landed in Canada. The Minister, on the advice of the Refugee Status Committee, had determined they were not convention refugees. The appellants all applied to the Immigration Appeal Board for a redetermination hearing, however they were not referred for an oral hearing as the board determined based on the materials submitted that there were no grounds on which they could establish their claims.
The appellants applied to the Federal Court of Appeal for review, alleging a violation of s. 7. The Court dismissed the applications, and they appealed to the Supreme Court.
- How do you determine whether an individual is entitled to an oral hearing?
Wilson - writing for herself, the Chief Justice, and Justice Lamer - found it was clear that the statute did not intend for refugee status applicants to be entitled to an oral hearing. Thus, in order for the appellants to succeed, the court must find that s. 7 overrides this section.
The first concern was the threshold issue; was s. 7 engaged? This was easily passed; everyone physically present in Canada is entitled to Charter protection. Although Singh had no constitutional right to remain in Canada, he had the right to have his claim determined in accordance with the principles of fundamental justice.
She determines that Singh and the other applicants were entitled to oral hearings, primarily on the basis that the Minister's determination depended significantly upon the applicants' credibility, which cannot be easily assessed (or assessed at all) through written submissions, stating:
I find it difficult to conceive of a situation in which compliance with fundamental justice could be achieved by a tribunal making significant findings of credibility solely on the basis of written submissions.
This violated principles of fundamental justice, and thus s. 7.
Wilson states that resort to the Charter should be reserved for cases in which ordinary statutory interpretation cannot provide a remedy. Here, the principles of fundamental justice in the context of determining refugee status require an oral hearing, and the statute itself expressly barred some refugee claimants from receiving such a hearing. She also held that a balance of administrative convenience does not override the need to adhere to principles of fundamental justice.
Beetz, concurring in the result, based his finding on s. 2(e) of the Bill of Rights rather than the Charter.
- Where serious issues of credibility are involved, fundamental justice requires that credibility be determined on the basis of an oral hearing.
- Issues of credibility are almost always at stake in determining refugee status.
- Administrative convenience does not override the need to adhere to the principles of fundamental justice.