Date: 19991022
Docket: IMM-507-99
BETWEEN:
ANTON PHILLIP
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.:
[1] The question to be answered is whether the jurisdictional requirements of s. 69(7) of the Immigration Act have been complied with on the particular facts of the present case. That provision reads as follows:
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(7) Presiding Member Where Proceedings Adjourned - 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. |
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[2] On October 6, 1998, in a hearing commenced before panel members Mr. Luciuk and Mr. Knevel, the claimant"s PIF was filed. Although neither counsel nor the claimant were present at that time, it is agreed that the panel composed of Mr. Luciuk and Mr. Knevel were thus seized of the claimant"s case. The matter was adjourned to October 30, 1998 for further hearing.
[3] On October 30th, the hearing was resumed and again neither counsel nor the claimant were present. The claimant"s reason for not being present is contained in a letter dated October 28th , received by the panel on October 29th as an attachment to a letter from the claimant"s counsel, to the effect that he had a medical reason for his non-appearance. In his letter, counsel for the claimant indicated that on October 30th he would be unavailable.
[4] On October 30th, the panel displayed substantial skepticism about the medical reason supplied by the claimant, and even went to the extent of having a phone call made to the claimant"s home with a warning that it intended to proceed that afternoon, even in his absence. The claimant could not be reached. After further consideration, the panel decided to adjourn the hearing. The result was a decision to have the complainant account for his non-appearance on the further resumption of the hearing.
[5] There is ample evidence that the panel members present on October 30th took special interest in the claimant"s case, and certainly wished to continue to deal with him. There was, however, also mention that Mr. Luciuk would be withdrawing from the panel and that he would need to be replaced.
[6] When the case did come on for hearing again on November 26, 1998 in the presence of the claimant and his counsel, Mr. Luciuk had withdrawn. The panel was then composed of Mr. Knevel and a new member Mr. Jackson. Without any reference to all that which had gone on before in the previous appearances, on November 26th the documents filed on October 6th were re-filed with new exhibit numbers and the proceeding continued, without objection, to completion.
[7] The question is: did the newly constituted panel have jurisdiction?
[8] Section 69(7) of the Immigration Act requires that when panel members are seized of a particular case, a hearing can only be resumed before a newly constituted panel with the consent of the claimant. The question in the present case is whether the November 26th hearing was a resumption.
[9] The case of Hernandez v. Canada (Minister of Employment and Immigration) (1993), 162 N.R. 391 (F.C.A.) is authority for the proposition that, where consent is requested to resume before a newly constituted panel but not obtained, a new proceeding can immediately be commenced before the newly constituted panel, thus allowing the newly constituted panel to act within jurisdiction. The respondent"s counsel argues that this is what happened in the present case. I disagree.
[10] On the facts of the present case, I find Hernandez is distinguishable because no consent to resume the hearing before the newly constituted panel was sought, and, indeed, no mention was ever made of a new hearing being commenced. As a result, I find as a fact that on November 26th there was a resumption of the hearing from October 30th, and not the commencement of a new hearing. The mere re-filing of the PIF without a clear statement of the purpose for so doing does not change this fact.
[11] Because the procedure required by s. 69(7) of the Immigration Act was not followed in the present case, I find that the newly constituted panel lacked jurisdiction to render its decision.
ORDER
[12] Accordingly, the decision is set aside.
"Douglas R. Campbell"
J.F.C.C.
TORONTO, ONTARIO
October 22, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
STYLE OF CAUSE: ANTON PHILLIP
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: WEDNESDAY, OCTOBER 20, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER AND ORDER BY: CAMPBELL, J. |
DATED: FRIDAY, OCTOBER 22, 1999
APPEARANCES: Mr. Micheal Crane
For the Applicant
Ms. Marianne Zoric
For the Respondent
SOLICITORS OF RECORD: Micheal T. Crane
Barrister & Solicitor
200 - 166 Pearl St.,
Toronto, Ontario
M5H 1L3
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19991022
Docket: IMM-507-99
Between:
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
AND ORDER
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