Toronto, Ontario, February 7th, 2005
Present: The Honourable Madam Justice Mactavish
BETWEEN:
SRITHARAN SINNATHAMBY
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] At the conclusion of Sritharan Sinnathamby's refugee hearing, the presiding member rendered an oral decision dismissing Mr. Sinnathamby's claim. When the presiding member went to prepare his written reasons, the tape recording of the member's oral reasons could not be found. As a consequence, the member endeavoured to reconstruct his oral reasons in his written decision, based upon his notes and his recollection of what he had said at the hearing.
[2] Shortly before this application for judicial review was heard, the Refugee Protection Division of the Immigration and Refugee Board located the missing tape recording, which has since been transcribed.
[3] Mr. Sinnathamby now seeks judicial review of the Board's decision, asserting that there are material differences between the Board's oral and written reasons. As a result, Mr. Sinnathamby says, it is impossible to know with any certainty why the presiding member dismissed his refugee claim.
[4] Mr. Sinnathamby also asserts that the Board erred in its assessment of his credibility.
Functus Officio Argument
[5] The respondent contends that once the presiding member rendered his oral decision, he was functus officio. As a consequence, counsel says, the member had no power to issue a written decision, and the Court should simply disregard the second set of reasons. Instead, the respondent submits that the application should be decided solely on the basis of the Board's oral decision.
[6] In support of this argument, the respondent relies on the decision of the Federal Court of Appeal in Acvi v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1424.
[7] I do not accept this argument.
[8] When a decision is rendered with nothing to be completed, the adjudicator is functus officio. Any further action taken by the adjudicator would be taken without authority: Slaight Communications Inc. v. Davidson, [1985] 1 F.C. 253 (C.A.), affirmed [1989] 1 S.C.R. 1038.
[9] Can it be said here that the member had nothing to complete once he rendered his oral decision? In addressing this question, it is necessary to have regard to the provisions of the Immigration and Refugee Protection Act (IRPA) and the Refugee Protection Division Rules (the "Rules").
[10] Section 169(d) of IRPA says that where the Refugee Protection Division rejects a refugee claim, the Board must provide written reasons for its decision to the claimant and to the Minister.
[11] This requirement is reflected in the Rules. While section 63(2) of the Rules provides that an oral decision rejecting a claim takes effect when the decision is pronounced, section 61(2) of the Rules mandates that written reasons must also be provided where refugee claims are rejected.
[12] Thus it is clear that not only does a member of the Board have the power to render a written decision after delivering an oral reasons for his or her decision: where the member rejects the claim, the member will in fact have the obligation to do so.
[13] In my view, Acvi does not assist the respondent. Acvi does not say that a member is functus officio once he or she has rendered an oral decision. What the Court said in Acvi was that the oral delivery of reasons is a sufficiently formal act marking the Board's final decision that the presiding member or members cannot be permitted to change their minds once the oral decision has been rendered.
[14] It does not follow from this that the presiding members may not reduce their oral decisions to writing after the hearing. Indeed, if I were to accept the respondent's argument, the Board would be incapable of complying with its statutory obligation to provide written reasons for rejecting a claim where an oral decision is rendered.
[15] I am therefore satisfied that the presiding member had both the power and the obligation to reduce his oral decision to writing after the hearing was over.
[16] This leaves the question of the extent to which the written decision must conform to the oral reasons.
To What Extent must the Written Reasons of the Board Conform to the Oral Reasons?
[17] It is clear from the Federal Court of Appeal's decision in Acvi, and from other decisions such as Thanni v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 582, Vaszilyova v. Canada (Minister of Citizenship and Immigration), [1994] F.C.J. No. 1027, Islamaj v. Canada (Minister of Citizenship and Immigration) and Isiaku v. Canada (Minister of Citizenship and Immigration) (1998), 46 Imm. L.R. (2d) 79 (F.C.T.D.), aff"d [1999] F.C.J. No. 1452 (F.C.A.), that while the Board does have the power to render written reasons after orally rejecting a refugee claim, the written reasons must accord with the oral reasons.
[18] Reasons for rejecting a refugee claim must be sufficiently clear, precise and intelligible that the claimant may understand why his claim has failed: see Mehterian v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 545 (F.C.A.).
[19] From the jurisprudence referred to above it is clear that where there are significant or substantial differences between the oral and written reasons for rejecting a refugee claim, the decision will be set aside, as the claimant will not be able to know, with certainty, why his claim has been rejected.
[20] The question, then, is whether there were substantial or significant differences between the Board's oral and written reasons.
How Different Are the Two Sets of Reasons?
[21] A review of the oral and written reasons discloses substantial differences between the two. For example, the oral reasons make no mention of an internal flight alternative for Mr. Sinnathamby, whereas the written reasons state that if Mr. Sinnathamby were to return to Sri Lanka, he could find a safe haven in Colombo.
[22] This inconsistency is particularly troubling as the oral reasons seem to suggest that the Board was of the view that Mr. Sinnathamby could safely return to his family home in Batticaloa. In contrast, the discussion of an internal flight alternative in the written reasons suggests that the panel may have had concerns about Mr. Sinnathamby's safety in Batticaloa.
[23] A review of the two sets of reasons reveals a number of other inconsistencies in relation to the Board's assessment of Mr. Sinnathamby's credibility, the significance that the Board attached to Mr. Sinnathamby's ability to obtain a student visa enabling him to leave Sri Lanka and whether Mr. Sinnathamby was a person in need of protection as contemplated by section 97 of IRPA.
[24] In my view, these differences are sufficiently significant that it is not possible to know, with certainty, why Mr. Sinnathamby's refugee claim was rejected. As a result, the decision of the Board cannot stand.
[25] Given my conclusion on the first issue, it is unnecessary to address Mr. Sinnathamby's submissions with respect to what he says were the errors in the Board's assessment of his credibility.
Conclusion
[26] For these reasons, the application for judicial review is allowed.
Certification
[27] Counsel for Mr. Sinnathamby has proposed a question for certification in the event that I were to conclude that the presiding member was functus officio once he had rendered his oral decision. According to counsel, this would represent a departure in the law, and would raise an important question of general application.
[28] I am of the view that the law in this area is well settled, and therefore decline to certify a question.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is allowed, and the matter is remitted to a differently constituted panel for redetermination.
2. No serious question of general importance is certified.
"A. Mactavish"
J.F.C
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2589-04
STYLE OF CAUSE: SRITHARAN SINNATHAMBY
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: FEBRUARY 3, 2005
REASONS FOR ORDER
AND ORDER BY: MACTAVISH, J.
DATED: FEBRUARY 7, 2005
APPEARANCES BY:
Barbara Jackman FOR THE APPLICANT
Ladan Shahrooz FOR THE RESPONDENT
SOLICITORS OF RECORD:
Jackson & Associates
Toronto, Ontario FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT