[1] Tunver Avci, a citizen of Turkey of Kurdish ethnicity, claimed to be recognized in Canada as a refugee. A panel of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board") rejected his claim. He applied to the Federal Court for judicial review of this decision, but the Judge dismissed his application (2002 FCT 1274). Mr. Avci appeals to this Court from the Judge's decision.

[2] There is only one live issue in this appeal: did the Applications Judge err in holding that, having reserved a decision, the Board becomes functus officio when the panel members sign the written reasons for decision and transmit the document to the registrar?

[3] We are all of the opinion that the Judge's conclusion on this point was correct: see Tambwe-Lubemba v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 511 (T.D.), aff'd. (2000), N.R. 382 (F.C..A.).

[4] Counsel for the Minister attempted to distinguish these decisions by arguing that, when members of a panel have dictated on to a recording machine the reasons for decision in their chambers, they are at that point functus. She submitted that recording reasons in this manner is a sufficiently clear indication that the members have completed their deliberations and rendered their decision within the meaning of section 69.1(9) of the Immigration Act, R.S.C. 1985, c. I-2, and are thus functus. Hence, a panel may not consider any submissions made to the Board respecting a matter after reasons have been recorded in this way.

[5] In our opinion, the case law does not support the Minister's position. The cases cited to us for the proposition that the Board is functus as soon as it has given its reasons or its decision orally deal with situations where the reasons or decision were delivered from the Bench, in the presence of the participants in the hearing: see, in particular, Isiaku v. Canada (Minister of Citizenship and Immigration) (1998), 150 F.T.R. 143, aff'd. (1999), 247 N.R. 292 (F.C.A.); Thanni v. Canada (Minister of Citizenship and Immigration), 2001 FCT 353.

[6] The oral delivery of reasons or a decision in this manner is a sufficiently formal act marking a panel's final decision, after which members cannot be permitted to change their minds. Accordingly, we reject counsel's argument that the dictation of reasons on to a recording machine in chambers is to be equated with the delivery of reasons from the Bench.

[7] Counsel for the Minister conceded that, if she did not persuade us, as she has not, that the panel was functus on November 7, 2001 when it dictated its reasons, the Board's decision must be set aside. She agreed with counsel for Mr. Avci that, if the panel were not functus on November 7, the Board breached the duty of fairness when it failed to consider, or to refer in its reasons to, material submitted to the Board on behalf of Mr. Avci on November 20, 2001, two days before it signed its written reasons for decision. Counsel for the Minister conceded that this material was sufficiently important to issues in dispute in the refugee determination proceeding that the failure of the panel to consider it or to refer to it in its written reasons warranted quashing the Board's decision to reject Mr. Avci's refugee claim. We do not disagree with this concession.

[8] For these reasons, the application for judicial review will be allowed, the decision of the Applications Judge reversed, the decision of the Board set aside and the matter remitted to it for redetermination by a differently constituted panel.

[9] The Applications Judge certified the following question pursuant to subsection 83(1) of the Immigration Act:

"When after the completion of a hearing, a Board determines that a claimant is not a Convention refugee, and provides its reasons orally in chambers, 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, R.S.C. 1985 c.I-2, and is the decision final as of the date it is rendered in chambers?"

I would answer the certified question as follows. If the Board reserves its decision at the end of a refugee determination hearing, it renders its decision and becomes functus officio when it signs written reasons for decision and transmits them to the registrar.

"John M. Evans"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-8-03

STYLE OF CAUSE: TUNCER AVCI

Appellant

(Applicant in the Trial Division)

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

(Respondent in the Trial Division)

PLACE OF HEARING: TORONTO, ONTARIO

DATE OF HEARING: SEPTEMBER 30, 2003

REASONS FOR JUDGMENT

OF THE COURT: LINDEN J.A.

EVANS J.A.

MALONE J.A.

DELIVERED FROM THE BENCH

ON SEPTEMBER 29, 2003 BY: EVANS J.A.

DATED: SEPTEMBER 30, 2003

APPEARANCES: Ms. Hillary Cameron

FOR THE APPELLANT

Ms. Sally Thomas

Ms. Rhonda Marquis

FOR THE RESPONDENT

SOLICITORS OF RECORD: Vandervennen Lehrer

Toronto, Ontario

FOR THE APPELLANT

Morris Rosenberg

Deputy Attorney General of Canada

FOR THE RESPONDENT

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Avci v. Canada (Minister of Citizenship and Immigration), 2003 FCA 359

Citations2003 FCA 359

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2003 FCA 359