Federal Court Decisions

                                     IMM-3947-96

BETWEEN:

FADI TIRAWI

Applicant

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent.

REASONS FOR ORDER

GIBSON J.:

These reasons arise out of an application for judicial review of a decision of the Convention Refugee Determination Division (the "CRDD") of the Immigration and Refugee Board wherein the CRDD determined the applicant not to be a Convention refugee within the meaning of subsection 2(1) of the Immigration Act.1 The decision of the CRDD is dated the 30th of September, 1996. It is signed by a single member of the CRDD.

The reasons for decision of the CRDD provide the following explanation for the fact that the decision is signed by one member only:

At the hearing, the panel consisted of Members George A. Griffith and Doug Millar. At the conclusion of the hearing the panel reserved its decision and later determined that the claimants [sic] were not Convention refugees. Since that determination, Member Millar has resigned from the Refugee Board and is unable to sign the written reasons. These reasons constitute the decision of the panel in this claim, in accordance with section 63(2) of the Immigration Act.

The CRDD determined the applicant not to be a Convention refugee on the basis that it found his evidence not to be credible and trustworthy. It wrote:

The claimant was not forthright in presenting his evidence, and he seemed to be making up responses as he went along, in order to explain discrepancies that were pointed out to him.

     Two issues were argued before me. First, counsel for the applicant urged that the finding against the applicant on the basis of credibility was not open to the CRDD. Second, counsel argued that the decision by one member constituted an error of law.

     The first issue is easily disposed of. On the basis of the totality of the material before me and of arguments of counsel, I conclude that the finding against the applicant on the ground of credibility was reasonably open to the CRDD.

     I reach a different conclusion with respect to the issue of a one-member panel.

     In Weerasinge v. Canada (Minister of Employment and Immigration),² Mr. Justice Mahoney wrote:

As a matter of law and to ensure that justice is seen to have been done, when subs. 63(2) is properly engaged a complete statement of the material circumstances should be put on the record. Such statement may, of course, be included in the reasons for decision.

                             [underlining added by me for emphasis]

Section 63 of the Immigration Act reads as follows:

63.      (1)      Any person who has resigned or otherwise ceased to hold office as a member of the Refugee Division... may, at the request of the Chairperson, at any time within eight weeks after that event, make, or take part in, the disposition of any matter previously heard by that person and, for that purpose, the person shall be deemed to be such a member.

     (2)      Where a person to whom subsection (1) applies or any other member by whom a matter has been heard is unable to take part in the disposition thereof or has died, the remaining members, if any, who heard the matter may make the disposition and, for that purpose, shall be deemed to constitute the Refugee Division... .

Section 63 must be read together with subsection 69.1(8) which reads as follows:

(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.

                         [underlining added by me for emphasis]

     The hearing of the applicant's claim to Convention Refugee status took place on May 11, 1995 and November 8, 1995. The reasons are dated September 30, 1996. Following the November 8, 1995 sitting, the CRDD requested that the Refugee Claim Officer make further enquiries with respect to the claim with a view to corroborating the applicant's testimony about attending high school, and information concerning the authenticity of his Palestinian identity. The requested information was obtained and provided to counsel under cover of correspondence dated January 24, 1996. On February 23, 1996, applicant's counsel provided the CRDD with written submissions. On March 28, 1996, applicant's counsel was served with observations of the Refugee Claim Officer. On March 29, 1996, applicant's counsel provided further written submissions. Thus, all of the evidence and submissions relevant to the determination of the applicant's claimed Convention refugee status was not in the hands of the CRDD until March 29, 1996 or sometime shortly before that date.

     In Odameh v. Minister of Employment and Immigration,³ Mr. Justice MacGuigan clarified the reference to "... a complete statement of the material circumstances..." in the quotation from Weerasinge above. He wrote:

If s. 63(2) is invoked by that [a single continuing] member, ... that invocation carries with it the clear implication that the departed member ... did not in fact participate in the decision either then or earlier.

That implication simply cannot stand on the facts of this matter. As appears from the quotation from the reasons of the CRDD that appears earlier in these reasons, the continuing member indicates that the "panel" determined the applicant not to be a Convention refugee and that, "...[since] that determination, Member Millar has resigned from the Refugee Board and is unable to sign the written reasons."

    

     There is nothing on the record in respect of this matter that would indicate the date on which the two members of the CRDD determined the applicant not to be a Convention refugee. It is clear from the quotation from the reasons above that that date was after the conclusion of the hearing. It is not clear that it was after the date on which all evidence and submissions were finally before the CRDD, that is to say, on or about March 29, 1996. It is not even clear from the record that the date of resignation of Mr. Millar was after March 29, 1996. In the result then, it is impossible to determine from the record that, when Mr. Millar participated in the decision, he had before him all of the evidence and submissions that were eventually before the CRDD.

     In the result then, and by reference to the words of Mr. Justice Mahoney from Weerasinge quoted above, as a matter of law and to ensure that justice is seen to have been done, the explanation provided for the invocation of subsection 63(2) of the Immigration Act to justify a one-member decision is simply inadequate. The explanation provided is entirely consistent with a conclusion that subsection 69.1(8) of the Immigration Act rather than subsection 63(2) applies on the facts of this matter since it may well be that only one member of the CRDD fully heard the applicant's claim. If that were to be the case, consent of the applicant would be required. There is no indication whatsoever that the applicant consented to a one-member hearing and determination.

     In Brailko v. Canada (Minister of Citizenship and Immigration),⁴ Madame Justice Reed wrote:

In my view, the hearing of a matter is not completed until all evidence has been filed and submissions made thereon and "the disposition of a matter" does not include the reception of evidence. Thus as I interpret section 63(2) it does apply to the circumstances of this case. Subsection 69.1(8), not subsection 63(2) governs. Since no consent was given by the Applicant, the Board lacked jurisdiction and its decision must be quashed.

I adopt the reasons of Madame Justice Reed. While, on the facts of this matter, I cannot say with certainty that subsection 63(2) does not apply and that subsection 69.1(8) governs, it is sufficient that that may be the case. In the absence of a sufficient statement on the record to establish that subsection 63(2) and not subsection 69.1(8) governs, I simply cannot determine that the CRDD has not erred in law, nor can I ensure that justice has been done let alone can be seen to have been done by providing the applicant with a one-member decision.

     For the foregoing reasons, this application for judicial review will be allowed, the decision of the CRDD will be set aside and the matter will be referred back to the Immigration and Refugee Board for rehearing and redetermination by a differently constituted panel.

     Neither counsel recommended certification of a question in this matter. No question will be certified.

                 _________________________

                     Judge

Ottawa, Ontario

September 16, 1997

__________________

     ¹      R.S.C. 1985, c. I-2

     ²      (1993), 22 Imm. L. R. (2d) 1(F.C.A.)

     ³      (1995), 185 N.R. 9 (F.C.A.)

     ⁴      [1995] F.C.J. No. 1011, June 30, 1995 (F.C.T.D.)