Date: 19980618
Docket: IMM-2264-97
Ottawa, Ontario, the 18th day of June 1998
PRESENT: THE HONOURABLE MR. JUSTICE WETSTON
BETWEEN:
RABIU MOHAMMED ISIAKU
a.k.a. BAYO ISOLA OLASUPO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review is dismissed.
The following question is certified:
Where, after the completion of a hearing, a Board has determined that a claimant is not a Convention refugee, and provides its reasons for decision orally, which are later reduced to writing and sent, along with the written notice of decision to the claimant, has the Board complied with ss. 69.1(9) & 69.1(11)(a) of the Immigration Act?
Howard I. Wetston
Judge
Date: 19980618
Docket: IMM-2264-97
BETWEEN:
RABIU MOHAMMED ISIAKU
a.k.a. BAYO ISOLA OLASUPO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
WETSTON J.:
[1] The Applicant seeks judicial review of a decision dated 13 November 1996, wherein the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") determined that the Applicant was not a Convention refugee.
[2] The Board heard the Applicant's case on 13 November 1996. At the conclusion of the hearing, the Board delivered oral reasons for decision, indicating that written reasons would follow, subject to revisions to correct errors of syntax and style.
[3] The recording equipment normally used to provide a transcript of the hearing was not functioning during the time at which the Board delivered its oral reasons. As such, the Board did not have the benefit of a transcript of oral reasons to use in preparing written reasons for decision.
[4] On 13 May 1997, the Board issued a written notice of decision to the Applicant which included a paragraph advising the Applicant about his right to seek judicial review of the decision under s. 82.1(1) of the Act. The written notice of decision was signed by the Registrar, as required under s. 30 of the Convention Refugee Determination Division Rules (SOR/93-45). Attached to the written notice of decision were written reasons that were dated 4 April 1997. The word "AMENDED" appears at the top of the cover sheet which accompanied the written reasons. Also, the cover sheet indicates that, although the written reasons were dated 4 April 1997, the date of decision was 13 November 1996.
[5] In its written reasons, the Board stated that it had relied on the Board's recollection of what was stated in the oral reasons. While the Applicant submits that the oral and written reasons differ substantially, on the evidence before me, I see no reason to prefer his recollection of the oral reasons over that of the Board.
[6] At issue is whether the Board erred in giving oral reasons for its decision, prior to providing written reasons for decision to the Applicant, contrary to paragraph 69.1(11)(a) of the Immigration Act.
[7] Subsections 69.1(9) and 69.1(11), currently read as follows:
(9) The Refugee Division shall determine whether or not the person referred to in subsection (1) is a Convention refugee and shall render its decision as soon as possible after the completion of the hearing and send a written notice of the decision to the person and the Minister
(11) The Refugee Division may give written reasons for its decision on a claim, except that
(a) if the decision is against the person making the claim, the Division shall, with the written notice of the decision referred to in subsection (9), give written reasons with the decision...
Immigration Act, R.S.C. 1985, c. 1-2
[Emphasis Added]
[8] Prior to 1992, subsection 69.1(11) read:
The Refugee Division may give written reasons for its decision on a claim, except that
(a) if the decision is against the claimant, the Division shall give written reasons with the decision;...
[9] The Applicant argues that the decision of the Court of Appeal in Hussain v. M.E.I. (1994) 174 N.R. 76, is determinative of the matter before this Court. In Hussain, the Board delivered oral reasons, which it indicated may be subject to revisions for grammar and content. At a later date, the Board provided the Applicant, Hussain, with a formal record of decision, dated the day of the delivery of the oral reasons, along with written reasons practically identical to those which had been rendered orally.
[10] The Applicant argues that in Hussain, supra, the Court of Appeal found that paragraph 69.1(11)(a) of the Act requires that a claimant must be provided written reasons with the decision, if the decision is negative. He submits that the Court of Appeal decided that, since the Board's written reasons were provided on a date subsequent to delivering its negative decision along with oral reasons, subsection 69.1(11) was breached. The Applicant also submits that the Court of Appeal found that the Board cannot provide oral reasons in most if not all circumstances.
[11] The Applicant argues that in the present case, notwithstanding a recent amendment to s. 69.1(11), the Board has breached subsection 69(11) by failing to provide written reasons with the negative decision, and by delivering oral reasons prior to delivering written ones.
[12] The Respondent contends that there has been no breach of s. 69.1. It is submitted that the amendment made to paragraph 69.1(11)(a) cures the procedural anomaly considered by the Court of Appeal in Hussain, supra, by no longer requiring the Board to give reasons at the time of giving its oral decisions. The effect of the amendment is argued to be that the Board can now make negative determinations and provide oral reasons, subject to the requirement that the written reasons which necessarily follow should not differ substantially from the oral reasons: Vaszilyova v. M.E.I. (IMM-3321-93, 4 July 1994, F.C.T.D.).
[13] As presently drafted, what does paragraph 69.1(11)(a) require? In my opinion, the issue is a matter of statutory construction. In other words, paragraph (11)(a) must be given a purposive interpretation in the context of the remainder of section 69.1.
[14] A comparison on the face of paragraph (11)(a) shows that the amendment as between the old and the new version consists primarily in the insertion of the clause: "with the written notice of the decision referred to in subsection (9)". The effect to be given to this amendment must be in accordance with the purpose of section 69.1.
[15] The purpose of the former section 69.1, as stated by the Court of Appeal in Hussain, supra, at 77, was to allow a claimant "to know in good time the precise reasons why a claim is rejected and thereby enable him to assess his chances before incurring the trouble and expense of further proceedings". There is nothing in the amendments to suggest that this purpose has changed.
[16] As to the intent of paragraph (11)(a), a review of the authorities suggests that it ensures that the adjudication of Convention Refugee claims occurs in a manner which allows unsuccessful claimants to plan their affairs in an efficient and timely manner. The provision ensures that an Applicant's planning is facilitated in two respects.
[17] First, paragraph 11(a) ensures that an Applicant can know why his or her claim failed so that he or she can properly assess the merits of seeking judicial review. The provision accomplishes this by requiring written reasons. Second, it provides an Applicant with formal notice of the decision. This facilitates planning in that an Applicant can know when to seek leave for judicial review.
[18] Paragraph (11)(a) now incorporates subsection (9), and thus must be read together in a manner consistent with that subsection. It is clear from the wording of subsection (9) that two separate matters are contemplated as part of the decision-making process of the Board: (i) the rendering of a decision, to be followed, "as soon as possible", by (ii) the provision of written notice of the decision.
[19] In my opinion, in amending paragraph (11)(a), Parliament did not intend that the written reasons be provided both "with the written notice of the decision" and "with the decision", because, as indicated in subsection (9), written notice of the decision is to follow the rendering of the Board's decision.
[20] Therefore, in order to give effect to the clear intent of Parliament to provide for an efficient and procedurally predictable process by the Board, the second "with" in subsection 69.1(11) can only be construed as meaning that the Board shall, with the written notice of the decision referred to in subsection (9), give written reasons for its decision.
[21] This interpretation is also suggested by considering that it is the written notice of decision, rather than the making of the decision itself, which triggers the time period within which a claimant must decide whether to seek judicial review of the Board's decision. In this regard, subsection 82.1(1) of the Act provides:
An application under this section for leave to commence an application for judicial review shall be filed with the Federal Court - Trial Division and served within fifteen days after the day on which the applicant is notified of the decision or order ...
[22] Written notice of the decision and reasons thus serves to establish when the time for filing an application for leave to appeal begins. Subsection 69.1(11) is significant because it provides that, in cases where written reasons are not given at the time of the decision and are provided later, the time for filing an application for leave to commence an application for judicial review will not commence until the applicant is notified in accordance with the Act and Regulations.
[23] I therefore agree with the Respondent that the amendment to subsection 69.1(11) had the effect of curing the anomaly that previously existed such that the Board is no longer required to deliver written reasons simultaneously with their oral decisions. The Board can provide written reasons after a decision has been made, by providing them in conjunction with the written notice of the decision. While the practice of providing oral reasons may lead to some difficulties where differences arise between the oral reasons and written reasons, these problems can be addressed on a case-by-case basis, as in: Vaszilyova, supra.
[24] I note that the Applicant also raised the Supreme Court of Canada's recent decision in Pushpanathan v. M.C.I., [1998] S.C.J. No. 46 at para. 47 (Q.L.), as well as the Federal Court of Appeal's decision in Weerasinge v. Canada (1993) 22 Imm. L.R. (2d) at 6, to support his position that subsection 69.1(11) requires the Board to do more than give oral reasons and later provide a transcript of those reasons. I do not agree that these decisions provide further support for the Applicant's proposed interpretation of s. 69.1. As stated, the issue is essentially a question of statutory construction.
[25] I turn to the question as to whether the Board was in breach of paragraph 69.1(11)(a) in this case. On 13 November 1996, the Board rendered its decision upon the completion of the hearing by providing oral reasons to the Applicant. The Applicant received a written notice of the Board's decision, dated 13 May 1997, with the written reasons. As such, the Applicant was immediately advised of the Board's decision and later had the opportunity to consider whether to seek judicial review, which commenced when he received the written notice and written reasons for the Board's decision. Moreover, as I have not found that any material difference has been demonstrated between the oral and written reasons, I do not find that there has been a breach of procedural fairness in this case.
[26] The rules of procedural fairness do not require the Board to reserve all of its decisions, in order to ensure that adequate written reasons are provided for each claimant. Adequate reasons are certainly required, i.e. reasons that are sufficiently clear, precise and intelligible so that a claimant can know why his or her claim failed: Mehterian v. M.E.I. (A-717-90, 17 June 1992, F.C.A.). However, by providing reasons orally, with written reasons to follow along with the Board's written notice of decision, the Board is also complying with the requirement of 69.1(9) that it render its decision "as soon as possible".
[27] At the hearing, the Applicant proposed a question for certification which was opposed by the Respondent. The Respondent later provided an alternative question for certification. I have considered the positions of the parties, and I shall certify the following question:
Where, after the completion of a hearing, a Board has determined that a claimant is not a Convention refugee, and provides its reasons for decision orally, which are later reduced to writing and sent, along with the written notice of decision to the claimant, has the Board complied with ss. 69.1(9) & 69.1(11)(a) of the Immigration Act?
[28] Accordingly, the application for review shall be dismissed, and the above question shall be certified.
Howard I. Wetston
Judge
Ottawa, Ontario
18 June 1998
FEDERAL COURT OF CANADA TRIAL DIVISION
NAME'S OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: IMM-2264-97
STYLE OF CAUSE:Rabiu Mohammed Isiaku a.k.a. Bayo Isola Olasupo v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 29, 1998
REASONS FOR ORDER BY: The Honourable Mr. Justice Wetston
DATED: June 18, 1998
APPEARANCES
Mr. Micheal Crane and
Ms. Wendy Lack for the Applicant
Ms. Susan Nucci for the Respondent
SOLICITORS OF RECORD:
Mr. Micheal Crane
Toronto, Ontario for the Applicant
Mr. George Thomson
Deputy Attorney General of Canada for the Respondent
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