Date: 19990927
Docket: IMM-6279-98
BETWEEN:
KLODIAN AGASTRA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for leave and judicial review of a decision of the Immigration and Refugee Board (Refugee Division) dated October 26, 1998, wherein the panel determined that the applicant was not a Convention refugee.
[2] Counsel for the applicant has raised one point which has to be addressed. The question raised by the applicant was whether the Refugee Division could have considered all the evidence between the close of the hearing and the time that it rejected the applicant"s claim. At the very end of the hearing, one of the members, the member Rossi said:
and immediately started:
| I think at this time, Mr. Agastra, this panel is ready to make an finding with respect to your claim.1 |
[3] After reviewing the transcript I realize that the panel had recessed fifteen to twenty minutes prior. After they resumed, other questions were asked to the applicant by the RCO, the applicant"s counsel and the two members of the panel.
[4] When the presiding member started to render a decision at page 306 he never consulted the other member of the panel. The members did not reserve or even leave the room once the evidence was finished; instead, the presiding member launched into the reasons without even consulting with the other panel member.
[5] There are two possibilities, one is that the presiding member started to render the decision without verifying with the other member of the panel if he or she would agree with the decision and waited at the end to check whether the other member would agree with his opinion.
[6] The other possibility is that the two members had consulted each other at the recess, fifteen to twenty minutes prior, and made their decision already.
[7] In any case, the situation raised major concerns: if the Refugee Division members had made their decision at the recess, fifteen minutes before the hearing was concluded, this is a mistake.
[8] In the other case, it does not make sense to consider that the presiding member will start to render a decision on behalf of the panel and wait till the end to ask the second member of the panel whether he or she agrees with the decision.
[9] The reading of the transcript shows that the presiding member never asked the other member"s opinion neither when he started to render the decision nor at the very end when he said only
| Thank you, this hearing is concluded.2 |
[10] In my view, there is a clear appearance of lack of fairness from the panel. The panel must consult especially since a disagreement between them would favour the applicant. The panel must not have the appearance of having already decided the case before hearing all the evidence and consulting, even though the hearing might not have brought anything new. These actions tarnish the integrity of the system.
[11] The applicant has convinced me that the panel has made a reviewable error.
[12] For this reason, the application for judicial review is granted. The panel"s decision is set aside and the matter is referred back to a differently constituted panel of the Refugee Division for rehearing and redetermination.
[13] Neither party has suggested a question to be certified.
Pierre Blais
Judge
OTTAWA, ONTARIO
September 27, 1999
__________________
1 Tribunal Record, p. 306.
2 Tribunal"s Decision, p. 7.
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