Antonio v. Minister of Employment and Immigration, (1994) 85 F.T.R. 241 (TD)

• Judge: Nadon, J.
• Court: Federal Court (Canada)
• Case Date: September 27, 1994
• Jurisdiction: Canada (Federal)
• Citations: (1994), 85 F.T.R. 241 (TD)

Antonio v. MEI (1994), 85 F.T.R. 241 (TD)

MLB headnote and full text

Pacato Joao Antonio (applicant) v. The Minister of Employment and Immigration (respondent)

(IMM-1072-93)

Indexed As: Antonio v. Minister of Employment and Immigration

Federal Court of Canada

Trial Division

Nadon, J.

September 27, 1994.

Summary:

Antonio applied under s. 82.1 of the Immigration Act for judicial review of a decision of the Convention Refugee Division of the Immigration and Refugee Board holding that Antonio was not a Convention refugee. The lawyers for both parties also submitted certain questions for certification pursuant to s. 83(1) of the Immigration Act.

The Federal Court of Canada, Trial Division, dismissed Antonio's application for judicial review and rejected the request for certification.

Aliens - Topic 1322

Admission, refugees - Grounds, well-founded fear of persecution - Antonio, a native of Cabinda in Angola, worked as telex agent for the Angolan government's telecommunications facility - He used his position to deliver crucial government troop location information to Cabinda separatists and UNITA rebels - Antonio was arrested for treason and sentenced to death but escaped before the punishment could be carried out - He fled to Canada where he claimed Convention refugee status - The Refugee Division determined that Antonio was not a Convention refugee because the punishment Antonio was to receive for his actions was justifiable "prosecution" as opposed to "persecution" for his political opinions - The Federal Court of Canada, Trial Division, affirmed the decision - See paragraphs 9 to 40.

Aliens - Topic 4062

Practice - Judicial review - Powers of review court - [See third Aliens - Topic 4069 ].

Aliens - Topic 4069

Practice - Judicial review - Appeals, certification of serious question of general importance by trial division - Antonio invoked the certification procedure provided by s. 83(1) of the Immigration Act (Can.) and applied for the certification of a question by which he challenged the certification procedure itself as being contrary to the Canadian Charter of Rights and Freedoms - The Federal Court of Canada, Trial Division, dismissed the application for certification because Antonio did not notify the Attorney General of Canada nor the Attorneys General of each province that the constitutional validity, applicability or operability of an Act of Parliament was raised - See paragraphs 41 and 42.

Aliens - Topic 4069

Practice - Judicial review - Appeals, certification of serious question of general importance by trial division - Antonio was sentenced to death for treason against the Angolan government - Before the punishment could be carried out, Antonio escaped to Canada where he claimed Convention refugee status - The Refugee Division determined that Antonio was not a Convention refugee because the punishment Antonio was to receive for his actions was justifiable "prosecution" as opposed to "persecution" for his political opinions - The Federal Court of Canada, Trial Division, affirmed the decision - Antonio's lawyer asked the court to certify the following question: "Whether a death sentence can ever be justified as a law of general application for 'political crimes' under the refugee definition?" - The court refused - See paragraphs 41, 46 to 49.

Aliens - Topic 4069

Practice - Judicial review - Appeals, certification of serious question of general importance by trial division - The Refugee Division determined that Antonio was not a Convention refugee because the punishment he was to receive in his country of origin for his actions -- the death penalty for treason -- was justifiable "prosecution" as opposed to "persecution" for his political opinions - The Federal Court of Canada, Trial Division, on a judicial review application, affirmed the decision - The Minister's lawyer asked the court to certify this question: "Does the Federal Court Trial Division have jurisdiction to declare that a claimant is/is not a Convention refugee and/or direct the Refugee Division to arrive at a particular result?" - The court refused because of lack of jurisdiction to answer the question accordingly - See paragraphs 50 to 53.

Civil Rights - Topic 8588

Canadian Charter of Rights and Freedoms - Practice - Notice to Attorney General - [See first Aliens - Topic 4069 ].

Cases Noticed:

Musial v. Minister of Employment and Immigration, [1982] 1 F.C. 290; 38 N.R. 55 (F.C.A.), consd. [para. 22].

Padilla v. Minister of Employment and Immigration (1991), 160 N.R. 156; 13 Imm. L.R.(2d) 1 (F.C.A.), consd. [para. 27].

Dan-Ash v. Minister of Employment and Immigration (1988), 93 N.R. 33 (F.C.A.), consd. [para. 31].

Bovbel v. Minister of Employment and Immigration (1994), 167 N.R. 10 (F.C.A.), refd to. [para. 45].

Zolfagharkhani v. Minister of Employment and Immigration (1993), 155 N.R. 311; 20 Imm. L.R.(2d) 1 (F.C.A.), refd to. [para. 46].

Sharbdeen v. Minister of Employment and Immigration (1994), 167 N.R. 158 (F.C.A.), consd. [para. 51].

Statutes Noticed:

Criminal Code, R.S.C. 1985, c. C-46, sect. 7(3.71) [para. 36]; sect. 46, sect. 47 [para. 34].

Federal Court Act, R.S.C. 1985, c. F-7, sect. 57 [para. 42].

Immigration Act, R.S.C. 1985, c. I-2, sect. 65(2)(c) [para. 31]; sect. 82.1 [para. 1]; sect. 83(1) [para. 41].

National Defence Act, R.S.C. 1985, c. N-5, sect. 74, sect. 75 [para. 34].

Official Secrets Act, R.S.C. 1985, c. O-5, generally [para. 34].

Authors and Works Noticed:

United Nations, Handbook on the Procedures and Criteria for Determining Refugee Status, 1988, paras. 56, 84, 85 [para. 20].

Counsel:

Rocco Galati, for the applicant;

Cheryl Mitchell, for the respondent.

Solicitors of Record:

Rocco Galati, Toronto, Ontario, for the applicant;

John C. Tait, Q.C., Deputy Attorney General of Canada, Ottawa, Ontario, for the respondent.

These applications were heard at Toronto, Ontario, on March 28, 1994, by Nadon, J., of the Federal Court of Canada, Trial Division.

Nadon, J., delivered the following decision at Toronto, Ontario, on September 27, 1994.