Federal Court Decisions

     IMM-46-97

BETWEEN:

     ABDULRIZAK MOHAMMED

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

CULLEN J.:

     This is an application for judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division [hereinafter, "CRDD" or the "Tribunal"], dated November 19, 1996, in which it was determined that the applicant is not a Convention refugee.

     The applicant requests that the Tribunal's decision be set aside and the matter be referred back for determination before a differently constituted panel of the CRDD.

THE FACTS

     The applicant is a citizen of Somalia. His claim to Convention refugee status was heard on February 2, 1995 and March 28, 1995. The decision of the CRDD concerning this claim was rendered approximately twenty-one months after the hearing.

     The Tribunal rejected the applicant's claim to Convention refugee status on the basis of adverse findings of credibility. These adverse findings of credibility were due to at least eleven inconsistencies and implausibilities that the Tribunal notes as arising from the applicant's evidence. These findings are adequately summarized in the respondent's Memorandum of Argument.

     It is noteworthy that the applicant was ten years of age when many of the events relating to his refugee claim took place, and that he was fifteen years of age at the time of the hearing before the CRDD. He was about seventeen when he received the Tribunal's decision.

     The Presiding Member of the CRDD at the hearing was Douglas Miller. The other second Member was John Morrison. The reasons of the decision were written solely by John Morrison. The concluding paragraph of the decision explains the reason for this, and reads as follows:

While rendering this decision, I note that the Presiding Member is no longer a Member of the Refugee Division. However, this decision was made prior to the Presiding Member's departure from the Immigration and Refugee Board and the reasons for the decision were discussed by the Members. These reasons are based in part on a draft set of reasons prepared by the Presiding Member prior to his departure.

     According to counsel to the applicant, Douglas Miller ceased to be a Member of the CRDD in June of 1996.

THE ISSUES

     Issues going to credibility are best determined by the CRDD, which has considerable and commendable expertise in this area. Normally, this Court is loathe to interfere in this Tribunal's findings regarding credibility, and, in any event, this issue was not engaged at this hearing by counsel to the applicant.

     In order for the Tribunal's decision to stand, it must have been made well within the Tribunal's jurisdiction. To my mind, the only issue that is determinative of this case is whether or not the Tribunal was acting within its jurisdiction when, without the consent of the applicant, only one Member rendered the decision that was originally heard by two Members.

DISCUSSION

     The jurisdictional issue pertinent to this case was considered thoroughly and carefully by Lutfy, J. in Mohammad Nadeem Latif et al. v. The Minister of Citizenship and Immigration (1996) 123 F.T.R. 201, (1996) 36 Imm. L.R. (2d) 182 (Fed. T.D.) [hereinafter, "Latif"]. In Latif, Lutfy J. found that the Tribunal's decision was jurisdictionally deficient because the decision was rendered, without the applicant's consent, by only one Member, rather than the two Members who had been present at the refugee hearing. In those circumstances, it became unnecessary to consider the other arguments raised by the applicants. The Tribunal's decision was set aside and remitted for rehearing by a differently constituted panel of the CRDD.

     The case at Bar is on all fours on the jurisdictional issue with Latif. Here, as in Latif, the Tribunal's decision was rendered, without the applicant's consent, by only one Member, rather than the two Members who had been present at the refugee hearing. This decision was rendered approximately twenty-one months after the applicant's hearing. The failure to hand down the decision within the eight weeks provided for in subsection 63(1) was not explained. As already set out in Weerasinge v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 330 [hereinafter, "Weerasinge"] by the Federal Court of Appeal, relied upon in Latif, subsection 63(2) is properly engaged when a complete statement of the material circumstances is placed on the record; i.e., in the Tribunal's decision. There has been no statement, at all, of the material circumstances surrounding the inability of the second Member to sign the Tribunal's decision.

     If, in any event, my interpretation of section 63, founded on the reasoning in Latif, is wrong, I would nevertheless find in favour of the applicant on the jurisdictional issue. The statement of material circumstances included in the reasons signed by John Morrison as required by Weerasinge is, in my view, incomplete. When he states in his reasons that "... this decision was made prior to the Presiding Member's departure from the Immigration and Refugee Board," he likely refers to when he and Douglas Miller 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) v. Canada (Minister of Citizenship and Immigration) (1995), 104 F.T.R. 312 at page 317: "As judges know, decisions often change with the writing of reasons." According to subsection 63(2), John Morrison alone was deemed to be the Tribunal on the date of the decision, which is said to be November 19, 1996. This date is five or six months after the date of Douglas Miller's departure from the IRB. The applicant has a right to a less ambiguous statement of circumstances for the decision not having been signed by the usual quorum of two members.

     The reasoning in Latif was recently employed by McKeown, J. in Eryilmazli v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 884 (Fed. T.D.).

     Accordingly, this application for judicial review is allowed. This matter is to be returned to a differently constituted panel of the CRDD for redetermination.

     At the conclusion of this hearing, counsel to the respondent proposed the following question for certification as a matter of general importance:

Is the expiration of a Board member's term sufficient grounds to invoke subsection 63(2) of the Immigration Act?

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An identical question was posed in the formal Order of December 12, 1995 by Reed, J. in Brailko v. Canada (Minister of Citizenship and Immigration) (1995), 97 F.T.R. 129, as was certified by Lutfy, J. in Latif. I shall do likewise, and hereby certify the above question.

OTTAWA, ONTARIO      B. Cullen

    

September 18, 1997.      J.F.C.C.