Date: 19980615
Docket: IMM-4193-97
BETWEEN:
ILLANDARIDEVAGE KULATUNGA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
MULDOON, J.
[1] The applicant seeks leave to institute judicial review, certiorari, against the decision of the CRDD (U95-00701) dated September 12, 1997, wherein that tribunal determined that he is not a Convention refugee. In this instance, despite the CRDD's reasoning, the applicant should have leave ex debito justitiae, for the CRDD failed to comply with subsection 69(7) of the Immigration Act.
[2] Subsection 69(7) runs:
| 69.(7) Proceedings before the Refugee Division that are adjourned may be resumed before any member or members of the Refugee Division other than the member or members who presided at the adjourned proceedings if the person who is the subject of the proceedings and the Minister, if taking part in the proceedings, consent thereto or if no substantive evidence was adduced before the adjournment. |
| (emphasis not in text) |
[3] The applicant's hearing opened on April 17, 1996. Documentary evidence was entered, including the applicant's personal information form (PIF), which was changed in some respects at the hearing, and exhibit numbers were assigned. The applicant solemnly affirmed that he would testify truthfully, and he testified that the contents of his PIF, including the changes were true. Although that session on April 17, 1996 is not recorded on the cover page of the CRDD's decision, its proceedings were clearly discussed at the next session on May 13, 1997 as shown in exhibit B to Roxanna Escobar's affidavit at tab 5 of the applicant's record (AR), a transcript of the second session, p. 054-59. The transcript clearly shows that counsel who was present objected to the absence of the second CRDD member who had been present on April 17, 1996, and to the presence of a different second member, Ms. Coyne, at the May 13, 1997 session. His objection was overridden by the presiding member as shown by counsel's own affidavit filed at tab 4 of the AR, page 024-30. The applicant by his counsel did not consent to the new second member. Moreover when counsel sought to make further amendments to the applicant's PIF, that request was dismissed because, according to the presiding member, the PIF, having been adduced as evidence, could not be further changed.
[4] The applicant cites and relies on Hernandez v. M.E.I., (1993) 162 N.R. 391, (F.C/A). There, the original members of the CRDD received the PIF and other documentary evidence, the claimant testified that PIF amendments were true, as was the whole PIF. However, in that case the Refugee Division terminated the hearing upon its purported resumption, because the claimant refused consent to continuing with new members. That newly constituted CRDD panel then commenced the claimant's hearing (again) on the spot. The Federal Court of Appeal approved that procedure as a means of not running afoul of subsection 69(7), and held that if the hearing had continued, instead of starting again, de novo, the CRDD would have run afoul of subsection 69(7).
[5] In these circumstances, the respondent, by counsel, consents to the granting of leave and gives as the cogent reason for such, "that the Refugee Division has breached s.69(7) of the Immigration Act" citing paragraphs 9 to 20 of the applicant's memorandum of fact and law. Although this is a matter of public law, the Minister's consent, bolstered, as it is, by a cogent reason, is accepted by the Court.
[6] Accordingly, leave is granted.
Judge
Ottawa, Ontario
June 15, 1998