Date: 20000324
Docket: IMM-1908-99
BETWEEN:
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Applicant
- and -
JUAN JOSE ELISEO TORRES CORTEZ
Respondent
REASONS FOR JUDGMENT
(Delivered from the Bench at Toronto, Ontario
| on Wednesday, March 22, 2000) |
McGILLIS J.:
[1] The Minister of Citizenship and Immigration ("Minister") has challenged by way of judicial review a decision dated March 26, 1999 of the Immigration and Refugee Board ("Board") in which the respondent was found to be a Convention refugee. The principal question to be determined on the application is whether the Board breached the principles of natural justice by failing to provide written reasons in support of its decision.
[2] The respondent is a citizen of El Salvador who arrived in Canada in August 1994 and made a claim to refugee status.
[3] On November 9, 1995, Charles Dombrady, a hearings officer with the Toronto Hearings and Appeals Office of the Department of Citizenship and Immigration ("Minister"s representative"), filed a Notice of Intent to Participate, indicating that the Minister intended to participate in the hearing of the respondent"s refugee claim before the Board on the basis that the claim raised "...matters involving Article 1(F)(a) of the Convention...". In particular, the Notice alleged that the respondent was a member of the Atlacatl battalion which was "...notorious for having committed various international crimes".
[4] The hearing of the respondent"s claim began on February 16, 1996 and was conducted over the course of five sittings. After the first sitting, the mandate of one of the members of the Board was not renewed and the respondent agreed to have his claim determined by the remaining Board member, Judith Ramirez. The hearing concluded on March 5, 1998 and the Board reserved its decision.
[5] Over one year later, the Board had not yet rendered its decision. On March 30, 1999, the Minister"s representative wrote to the Registrar of the Board inquiring about the status of the case. On April 1, 1999, he was informed that, on March 26, 1999, the Board had determined the respondent to be a Convention refugee. On April 7, 1999, within the time prescribed in paragraph 69.1(11)(b) of the Immigration Act , R.S.C. 1985, c. I-2 as amended, the Minister"s representative requested that the Board provide written reasons. On or about May 12, 1999, the Minister"s representative was informed that the mandate of Ms. Ramirez, the sole member of the Board who made the decision, had expired. No written reasons were issued by the Board.
[6] In order to determine whether the Board breached the principles of natural justice by failing to provide written reasons, it is necessary to consider the legislative provisions and the jurisprudence.
[7] Subsection 69.1(11) of the Immigration Act governs the provision of written reasons by the Board in the following terms:
| 69.1. (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; and
(b) if the Minister or the person making the claim requests written reasons within ten days after the day on which the Minister or the person is notified of the decision, the Division shall forthwith give written reasons.
|
69.1. (11) La section du statut n'est tenue de motiver par écrit sa décision que dans les cas suivants:
a) la décision est défavorable à l'intéressé, auquel cas la transmission des motifs se fait avec sa notification;
b) le ministre ou l'intéressé le demande dans les dix jours suivant la notification, auquel cas la transmission des motifs se fait sans délai.
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[8] In the event that a member of the Board resigns or ceases to hold office, there is nevertheless a statutory mechanism to permit that person, in certain defined circumstances, to complete the disposition of a matter previously heard. In that regard, subsection 63(1) of 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.
|
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.
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[9] The Court has previously considered the effect of the failure of a tribunal to provide written reasons in circumstances similar to the present case. In Canada (Minister of Citizenship and Immigration) v. Pinnock (1996), 122 F.T.R. 68 (T.D.) Gibson J. held that the failure of the Appeal Division to provide reasons, in the circumstances mandated by a statutory provision virtually identical to subsection 69.1(11) of the Immigration Act, constituted a breach of natural justice on the basis that it prejudiced the applicant in prosecuting the application for judicial review. That decision was followed by Cullen J. in Whittingham v. Canada (Minister of Citizenship and Immigration) (1997), 125 F.T.R. 279 (T.D.), a case that was factually identical to the circumstances in Pinnock. In both Pinnock and Whittingham, the members who heard the cases were medically incapacitated.
[10] Counsel for the respondent sought to distinguish Pinnock and Whittingham on the basis that those cases involved members who were incapacitated for medical reasons. In my opinion, those cases cannot be distinguished on that basis. Under subsection 63(1) of the Immigration Act, the Chairperson of the Board had the discretion to request the member who had ceased to hold office to prepare reasons in support of her decision. Given the lengthy hearing that occurred in the present case and the serious issue raised concerning the question of whether the applicant was excluded from the protection of the Convention, the Chairperson ought to have done so. The failure of the Board to provide reasons in such a serious and vigorously contested case simply cannot be justified or condoned. In the circumstances, I am satisfied that the principle enunciated by Gibson J. in Pinnock applies equally to the facts in the present case. The failure of the Board to provide reasons in support of its decision has therefore seriously prejudiced the applicant in contesting the Board"s decision and constitutes a breach of natural justice.
[11] The application is allowed. The matter is remitted to a differently constituted Board for rehearing and redetermination. Counsel agreed that the case raises no serious question of general importance.
OTTAWA, Ontario
| March 24, 2000 D. McGillis |
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