IMM-824-96
BETWEEN:
MOHAMMAD NADEEM LATIF
DILSHAD BEGUM
RUKSHAR DILSHAD
Applicants
- AND -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.
The Convention Refugee Determination Division ("the Tribunal") of the Immigration and Refugee Board determined the applicants not to be Convention refugees. The applicants' first issue in this application for judicial review is that the decision of the Tribunal was made without jurisdiction.
The facts concerning the jurisdictional issue are straightforward. The Tribunal was composed of a panel of two members, Messrs. Mike Douglas and Martin Wakim. Both members participated in the hearing which took place on June 2, 1995. Mr. Douglas ceased to hold office as a member of the Tribunal on October 3, 1995. It was only Mr. Wakim who signed the reasons on February 16, 1996 which is indicated on the cover page as being the "Date of Decision".
The applicants challenge the decision on the basis that two members heard the case and only one member made the decision. Subsection 69.1(7) of the Immigration Act, R.S.C. 1985, c. I-2 ("the Act"), stipulates that two members constitute a quorum of the Tribunal for the purposes of a hearing into refugee claims. Subsection 69.1(8) provides that one member of the Tribunal may hear and determine a claim with the consent of the person seeking refugee status. The applicants never consented to a one member Tribunal.
Section 63 of the Act provides a procedure in the event one member ceases to hold office while a matter is pending. The section came into force in 1978 and has remained substantially intact with only transitional and grammatical changes. It is useful to recite section 63 in both official languages:
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.
63. (1) Le membre de la section du statut, de la section d'appel ou de la section d'arbitrage qui a cessé d'exercer sa charge par suite de démission ou pour tout autre motif peut, à la demande du président et dans un délai de huit semaines après la cessation de ses fonctions, participer aux décisions à rendre sur les affaires qu'il avait préalablement entendues. Il conserve à cette fin sa qualité de membre.
(2) En cas de décès ou d'empêchement du membre visé au paragraphe (1), ou de tout autre membre y ayant participé, les autres membres qui ont également entendu l'affaire peuvent rendre la décision, et sont, à cette fin, réputés constituer la section d'appel ou du statut, selon le cas.
Section 63 has been considered by the Appeal Division1 and the Trial Division2 of this Court in more than several reported decisions but none prior to 19933. The reasons underlying these different decisions vary. This divergence was well summarized by Reed, J. in Brailko at p. 131:
| As counsel suggested, two lines of authority appear to have developed after the decision in Weerasinge: one indicates that as long as an explanation is placed on the record, stating that the member's inability arose because that member ceased to hold office, this is sufficient to meet the purposes of 63(2). The other indicates that in circumstances where Board members know, at the time they participate in hearings, that they will not be available to take part in the decisions, there will be a breach of natural justice. Concomitantly, when it is clear from the record that Board members anticipate taking part in decisions before the expiration of their term, and then do not do so, a fuller explanation respecting the reason for that inability is required. A mere statement that the individual's term of office had expired will not suffice. |
This situation will shortly be clarified as two of the trial decisions are currently under appeal4.
In this proceeding, Mr. Wakim explained his being the only member to sign the reasons in the following terms:
| Mike Douglas ceased to hold office as a Member of the Convention Refugee Determination Division on October 3, 1995. He participated in the disposition of the claim in accordance with section 63(1) of the Act. We discussed the reasons and the ultimate disposition. The Hearing Disposition Sheet was signed by both members. My colleague, Mr. Douglas, prepared the summary of facts, pertaining to the male claimant's oral testimony, which appear below. The remainder of the present reasons, written and signed by the remaining Member, reflect the thinking of the panel when the decision was made. Accordingly, the reasons signed by the remaining Member who heard the claim are deemed to be the reasons of the Refugee Division.5 |
The applicants characterize the Tribunal decision as one being made without the two member quorum required by subsection 69.1(7).
Décary, J.A. in IBM Canada Ltd. v. Minister of National Revenue, [1992] 1 F.C. 663, summarized the importance that the courts have traditionally placed on the strict compliance with quorum requirements at pages 673-4:
| ... in setting a quorum and requiring that a minimum number of persons participate in a decision, Parliament reposes its faith in collective wisdom, does so for the benefit of the public as well as for the benefit of those who might be affected by the decision, and expects those who participate in the decision either as members of the majority or as dissenting members to act together up to the very last moment which is the making of one united, though not necessarily unanimous decision [footnote omitted]. Having the proper quorum at all relevant times, from the beginning up to the very last moment is a question of principle, or public policy and of sound and fair administration of justice. |
The Court of Appeal first considered section 63 in Weerasinge. The only Refugee Division member to sign the reasons in that case noted in the final decision that:
| The hearing was held before myself and my colleague, Vara Singh. Ms. Singh ceased to hold office as a member of the Refugee Division and is therefore unable to take part in the disposition of this matter. Accordingly, pursuant to section 63(2) of the Immigration Act, my decision shall constitute the decision of the Refugee Division in this case.6 |
The final decision was signed by the remaining member some seven months after the hearing. The failure to hand down the decision within the eight weeks provided for in subsection 63(1) was not explained. The Court of Appeal held that reliance upon subsection 63(2) was not justified (pages 334-5):
| There is nothing else on the record that explains why only one member made the decision. By [the date the decision was issued], the presiding member had, it is clear, been out of office for more than eight weeks and was disqualified from participating in the decision. |
| ... |
| The rights assured by section 7 of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] are put in issue when a claim to be a Convention refugee is made. Absent consent, a claimant is entitled to a hearing by a two-member panel and is entitled to the benefit of any disagreement between them. Recourse to subsection 63(2) is a serious matter which denies a claimant a right accorded by the Act. A decision made by a single member is prima facie made without jurisdiction. When a claimant consents to or requests a hearing by a single member, that must be, as it invariably has been, clearly put on the record. It should be likewise when recourse has been had to subsection 63(2). |
| As 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. [emphasis added] |
There are several important principles set out in this extract from Weerasinge. The claimant's Charter rights are at issue in the refugee hearing. The claimant, absent consent, has the right to a panel of two members. A decision made by only one of those members is prima facie jurisdictionally deficient. A decision made in any other circumstance can only be for reasons clearly placed on the record.
Were it not for section 63, no decision could be made after one of the two members ceases to hold office. That member becomes disqualified and a quorum no longer exists. Subsection 63(1) provides a procedure which deems a member who has ceased to hold office to be a member for a further period of eight weeks. This should only occur at the request of the Chairperson of the Immigration and Refugee Board.
Similarly, as a general rule, the deemed member and the other member must dispose of the matter within the eight weeks stipulated in subsection 63(1). As stated in Weerasinge, recourse to subsection 63(2) is a serious matter which denies a claimant the right to a decision signed by two members. It was clear in Weerasinge that the member who did not sign the decision had been out of office for more than eight weeks. To repeat the words of the Court of Appeal, the departed member had "... been out of office for more than eight weeks and was disqualified from participating in the decision." If the Court of Appeal had thought that one member being out of office for more than eight weeks was sufficient in and of itself for relying upon subsection 63(2), it would not have required "a complete statement of the material circumstances".
In my view, the statement of material circumstances must relate to the member being unable to take part in the disposition of the matter for reasons other than the lapse of eight weeks.7 This is one interpretation that gives substantive meaning to the words "at any time within eight weeks after that event, make, or take part in, the disposition of any matter" used by Parliament in subsection 63(1). Other interpretations put into question the purpose and necessity of subsection 63(1) as regards both the Chairperson's discretion and the eight week period. Parliament does not enact words for no purpose.
In reasons delivered orally by the Court of Appeal in Odameh, a decision appears to have been reached which may not be consistent with my interpretation of Weerasinge. In Odameh, the Court of Appeal confirmed a decision signed by only one member because the other had ceased to hold office. At page 10:
| Although it would not be undesirable for details to be provided by the continuing Board member, we believe it is not strictly necessary. If s. 63(2) is invoked by that member, with the explanation that the other member has ceased to hold office as a member, that invocation carries with it the clear implication that the departed member was not requested by the chairman to participate in the decision of the matter within eight weeks of departure and did not in fact participate in the decision either then or earlier. In our view, this is a sufficiently complete statement of the material circumstances in accordance with the Weerasinge rule.8 |
This appears to be a different application and interpretation of section 63 than in Weerasinge. According to Odameh, subsection 63(1) is discretionary. If the Chairperson does not request the departing member to participate in the decision or if the request is made and that member does not do so within eight weeks, the remaining member shall, by simply so stating these facts, be deemed to constitute the Tribunal in accordance with subsection 63(2). This interpretation does not appear to give sufficient importance to subsection 63(1) and greatly facilitates recourse to subsection 63(2). The Court of Appeal in Weerasinge may not have intended the outcome in Odameh when it stated that recourse to subsection 63(2) "... is a serious matter which denies the claimant a right accorded by the Act."
In the present case, if the Chairperson had requested him to do so, Mr. Douglas could have participated in the making of and signed the decision at any time prior to the expiration of eight weeks beyond October 3, 1995, the date he ceased to hold office. The record does not indicate explicitly whether the Chairperson had made such a request of Mr. Douglas. In the reasons, the remaining member Martin Wakim states that Mr. Douglas participated pursuant to subsection 63(1).
Mr. Wakim advises that Mr. Douglas discussed the reasons and the ultimate disposition. Mr. Douglas prepared the summary of facts concerning the oral testimony of one claimant. Both signed the Hearing Disposition Sheet. This document has not been made available to the Court and its contents are not known.
Mr. Wakim asserts that Mr. Douglas "... participated in the disposition of the claim in accordance with section 63(1) of the Act." He further advises that the portion of the reasons he himself wrote reflect "... the thinking of the panel when the decision was made." A proper understanding of these statements requires some speculation as to when Mr. Douglas participated in the disposition. However, even assuming an interpretation of the facts most consistent with the requirements of subsection 63(1), in my view the decision cannot be saved.
As I understand section 63 and its interpretation by the Court of Appeal in Weerasinge, the member who has resigned or otherwise ceased to hold office must have been rendered "unable to take part in the disposition" of the case or have died within the eight week period referred to in subsection 63(1). In the event the member has become unable to take part in the disposition of the matter within the eight week period, a statement of the material circumstances explaining this inability should be placed on the record or be included in the reasons for decision.
This was not done in this case. The remaining member's recitation of the nature of the departed member's participation in and agreement with the decision is not relevant in the absence of a statement of the material circumstances which prevented the matter being disposed of within eight weeks of the deemed member having ceased to hold office.
If my interpretation of section 63 is wrong, I would nevertheless find in favour of the applicants on the jurisdictional issue. The statement of material circumstances included in the reasons signed by Mr. Wakim as required by Weerasinge is, in my view, incomplete and unclear. Mr. Douglas cannot have "... participated in the disposition of the claim in accordance with section 63(1)." If he had, he would have signed the reasons as a deemed member.
In this case, Mr. Wakim purportedly acted pursuant to subsection 63(2) without properly stating so. When he states that his reasons reflect the "... thinking of the panel when the decision was made", he likely refers to when he and Mr. Douglas agreed that the applicant should not be accepted as a refugee. However, that is not when the decision was made in any juridical sense. As Reed, J. aptly said in Singh (Ricki) at p. 317: "As judges know, decisions often change with the writing of reasons." According to subsection 63(2), Mr. Wakim alone was deemed to be the Tribunal on the date of decision which is said to be February 16, 1996 on the cover page of the reasons. The applicants have the right to a less ambiguous statement of circumstances for the decision not having been signed by the usual quorum of two members.
Accordingly, the Tribunal's decision was jurisdictionally deficient. In the circumstances, it is unnecessary to consider the other arguments raised by the applicants. The decision will be set aside and remitted for rehearing by a differently constituted panel.
Upon representations by counsel for both parties pursuant to section 83 of the Act, I certify that the following serious question of general importance is involved in this matter:
| Is the expiration of a Board member's term sufficient grounds to invoke subsection 63(2) of the Immigration Act? |
An identical question was posed in the formal Order of December 12, 1995 by Reed, J. in Brailko.
_______________________________
Judge
OTTAWA, ONTARIO
November 22, 1996
__________________
1 Weerasinge v. Canada (Minister of Employment and Immigration) (C.A.), [1994] 1 F.C. 330; and Odameh v. Minister of Employment and Immigration (1995), 185 N.R. 9
2 Mehael v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 838, Court File No. A-1534-92; Soukhaniouk et al. v. Minister of Employment and Immigration (1994), 85 F.T.R. 55; Zivkovic v. Minister of Employment and Immigration (1994), 88 F.T.R. 192; Vega-Solis v. Canada (Ministre de la Citoyenneté et de l'Immigration) (1995), 93 F.T.R. 211; Garrison v. Canada (Minister of Citizenship and Immigration) (1995), 90 F.T.R. 60; Kutovsky-Kovaliov et al. v. Canada (Secretary of State) (1995), 93 F.T.R. 293; Quintero v. Canada (Minister of Citizenship and Immigration) (1995), 90 F.T.R. 251; Sinishin v. Canada (Minister of Citizenship and Immigration) (1995), 96 F.T.R. 8; Brailko v. Canada (Minister of Citizenship and Immigration) (1995), 97 F.T.R. 129; Mirzaei v. Canada (Minister of Citizenship & Immigration) (1995), 32 Imm. L.R. (2d) 69; De Arce v. Canada (Minister of Citizenship and Immigration) (1995), 103 F.T.R. 72; Singh (Ricki) v. Canada (Minister of Citizenship and Immigration) (1995), 104 F.T.R. 312; Ashraf v. Canada (Minister of Citizenship and Immigration) (1996), 107 F.T.R. 289; Sereguine v. Canada (Minister of Citizenship and Immigration) (1996), 108 F.T.R. 133; Sommariva v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 410, Court File No. IMM-54-95
3 Unless otherwise indicated, the citations of the Court of Appeal and Trial Division decisions referred to in these Reasons are at footnotes 1 and 2 respectively.
5 Similar wording was used in other reasons signed by only one member: Garrison (p. 64) and Singh (Ricki) (p. 317). In other cases, the sole remaining members used substantially different language which referred explicitly to subsection 63(2) and made no reference to subsection 63(1): Mehael (para. 6); Soukhaniouk (p. 56); Zivkovic (p. 193); Kutovsky-Kovaliov (p. 294); Sinishin (p. 9); Brailko (p. 133); Mirzaei (p. 70); De Arce (p. 73)
6 This extract is taken from p. 243 of the Appeal Book in Weerasinge . Contrary to what is suggested in the reported decision, this passage was included in the final decision, and not only the draft decision, of the remaining member. The Court of Appeal dismissed an application for reconsideration of its Order after this oversight was brought to its attention.
7 A similar view was adopted in Singh (Ricki) (p. 316) and in Brailko (p. 132). See also Zivkovic, Mirzaei and Ashraf to the same effect.
8 The rationale in Odameh appears to have been followed in the trial decisions in De Arce and Sereguine.