Docket No.: IMM-4339-01
Neutral Citation: 2002 FCT 1201
Ottawa, Ontario, this 21st day of November, 2002
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
MOHAMAD AKRAMUZ ZAMAN,
Applicant;
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER AND ORDER
(a) The applicant seeks judicial review of a decision of the Immigration and Refugee Board, Refugee Division (the "Refugee Division") dated August 30, 2001, whereby a single member panel determined that the applicant was not a Convention refugee.
(b) The key issue on this application is whether the Refugee Division had jurisdiction to hear the applicant's claim in the absence of an express consent by the applicant to have his claim heard by a single, as opposed to a two, member panel.
(c) Subsection 69.1(7) of the Immigration Act R.S.C. 1985, c. I-2 (the Act) fixes the number of Refugee Division members required to hear Convention refugee claims at two. An exception to the two member quorum is made at subsection 69.1(8):
69.1(8) One member of the Refugee Division may hear and determine a claim under this section if the person making the claim consents thereto, and the provisions of this Part apply in respect of a member so acting as they apply in respect of the Refugee Division, and the disposition of the claim by the member shall be deemed to be the disposition of the Refugee Division.
69.1(8) Si l'intéressé y consent, son cas peut être jugé par un seul membre de la section du statut; le cas échéant, les dispositions de la présente partie relatives à la section s'appliquent à ce membre et la décision de celui-ci vaut décision de la section.
(d) The applicant, represented by counsel, who admittedly raised no objection to the constitution of the panel at the hearing of his claim, contends that he was denied his statutory right to a two member panel.
(e) Subsection 69.1(7) of the Act provides an applicant with the right to be heard by two members. In addition to the obvious benefit of being heard by two independent decision-makers, a claimant is given a distinct advantage in the event of a split decision. Subsection 69.1(10) provides that, in such circumstances, a favourable decision of one member is deemed to be the decision of the Refugee Division. Further, subsection 69.1(9.1) provides that a "no credible basis" determination can only be made when "each" member of a panel so decides. The advantages of proceeding before two members whose decisions carry equal weight cannot be understated. While the statute allows an applicant to relinquish this right, such a relinquishment must be knowing and voluntary.
(f) To ensure that waiver of a significant statutory right was knowing and voluntary, the panel was therefore required to explicitly question the applicant about his election, unless it was manifestly clear from the record that the applicant had given his consent. An applicant's silence or acquiescence to proceed with the hearing is simply not sufficient to establish a knowing and voluntary relinquishment of a statutory right.
(g) In Jaballah v. Canada (Minister of Citizenship and Immigration), (2000), 196 F.T.R. 175, an analogous case, Hansen, J. held that the absence of explicit consent to a single-member panel as required by subsection 69.1(7) goes directly to the jurisdiction of the panel. Since there was no consent verbally or in writing, the single member lacked jurisdiction to hear the matter and the decision was set aside. At paragraph 3 of her reasons, she stated that "[T]he consent must be on the record in clear and unequivocal term".
(h) In summary, I conclude that the applicant did not waive his right to a two member panel. The Refugee Division erred in proceeding with the hearing absent the consent of the applicant. Accordingly, the decision must be vacated and the matter will be remanded to the Refugee Division for re-determination.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review is granted and the matter is referred back to the Refugee Division for re-hearing by a newly constituted panel.
"Edmond P. Blanchard"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4339-01
STYLE OF CAUSE: Mohamad Akramuz Zaman v. MCI
PLACE OF HEARING: Montréal, Québec
DATE OF HEARING: August 8, 2002
REASONS FOR ORDER AND ORDER: BLANCHARD J.
DATED: November 21, 2002
APPEARANCES:
Ms Diane N. Doray FOR APPLICANT
Mr. Guy M. Lamb FOR RESPONDENT
SOLICITORS OF RECORD:
Ms. Diane N. Doray FOR APPLICANT
203-6855 de L'Épée
Montréal, Québec H3N 2C7
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
200 René-Lévesque Blvd. West
Montréal, Québec H2Z 1X4