Federal Court Decisions

IMM-3900-96

BETWEEN:

ALI HAMAD

Applicant,

- and -

THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

Respondent

REASONS FOR ORDER

JEROME A.C.J.:

     This application for judicial review of a decision of the Convention Refugee Determination Division ("CRDD") of the Immigration and Refugee Board, dated October 4, 1996, came on for hearing before me at Toronto, Ontario, on June 10, 1997. At the close of oral argument, I took the matter under reserve and indicated that written reasons would follow.

     The applicant arrived in Canada in January, 1995, and claimed refugee status on February 2, 1995 on the basis that he feared political persecution in Tanzania. A refugee determination hearing was held in March and April of 1996. The panel was made up of Elda Thomas and Douglas Millar. Mr. Millar resigned from his position on June 28, 1996, and was permitted to take part in decisions up to July 4, 1996.

     On October 4, 1996, the CRDD released its decision finding that the applicant was not a refugee because the evidence presented was not credible. The reasons for decision, signed by Elda Thomas alone, explain that the decision was arrived at by both of the original panelists:

On June 18, 1996, Mr. Millar and I signed the Hearing Disposition Record; each of us indicated on the Hearing Disposition Record the conclusion that the claimant was not a Convention refugee. The reasons set out below reflect not only my own thinking on the claim, but also that expressed by Mr. Millar prior to his departure from the Board. The situation is similar to that which was considered in Garrison, in which Mr. Justice Muldoon characterized the decision as a decision made by both members, not just the remaining member. [footnote omitted]1

The applicant submits that the decision of the CRDD should be set aside because he did not consent to a hearing by one panelist only.

     The Immigration Act provides as follows:

63. (1) Any person who has resigned or otherwise ceased to hold office as a member of the Refugee Division, Adjudication Division or Appeal 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 or the Appeal Division, as the case may be.

...

69. (7) Subject to subsection (8), two members constitute a quorum of the Refugee Division for the purposes of a hearing under this section.

69. (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.

The leading case dealing with subsection 63(2) is Weerasinghe v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 330. In that case, the record indicated that the absent member did not take part in any way in the final disposition of the refugee claim. Mr. Justice Mahoney wrote at page 335 that,

[a]s a matter of law and to ensure that justice is seen to have been done, when subsection 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.

As noted by the CRDD in its decision, subsection 63(2) was also interpreted by Mr. Justice Muldoon in Garrison v. Canada (Minister of Citizenship & Immigration), (1995) 28 Imm. L.R. (2d) 113. The decision of the CRDD in that case contained a statement that the member who had ceased to hold office participated in the disposition of the refugee claim, although only one member wrote and signed the decision. I find the reasons of Mr. Justice Muldoon compelling when he writes at page 118:

It is very clear to this court that not only were the circumstances clearly set out on the record, but also that the decision was unanimous on the part of both members, although signed by only one. The court can hardly evince such paranoia as to disregard the statement, so clearly and thoroughly set out in the reasons, on the basis that member Sarzotti [the remaining member] was an incompetent or a liar. There is no valid reason to go behind that clear statement.

     In the case at bar, there is no reason to doubt the statement of member Thomas, contained in her decision, that she and Mr. Millar agreed that the applicant's evidence lacked credibility and that he did not qualify as a Convention refugee. As a result, I find that the CRDD satisfied the requirement set out in Weerasinghe and that the applicant received a fair hearing. This application for judicial review is dismissed.

     At the hearing into this matter, I indicated to counsel that they would have the opportunity to present a question for certification. Should they wish to do so, they should submit their questions to the Registry within 15 days of today's date.

O T T A W A

August 29, 1997                      "James A. Jerome"

                             A.C.J.

__________________

     ¹CRDD decision, October 4, 1996, p.1.