Judgments

[1994] 1 F.C. 330

A-705-91

Dunstan Weerasinge (Appellant)

v.

The Minister of Employment and Immigration (Respondent)

Indexed as: Weerasinge v. Canada (Minister of Employment and Immigration) (C.A.)

Court of Appeal, Mahoney and Robertson JJ.A. and Henry D.J.—Toronto, August 11; Ottawa, September 9, 1993.

Citizenship and Immigration — Immigration practice — Convention refugee claim heard by two members of Refugee Division, but reasons signed by only one, other having ceased to hold office — Immigration Act, s. 69.1 providing two members constituting quorum for hearing purposes — One member may hear and determine claim if claimant consenting — Absent consent, claimant entitled to hearing by two-member panel — As s. 63(2) (permitting remaining member to make disposition where member who has ceased to hold office unable to participate therein) denying right accorded by Act, express consent of claimant required for recourse thereto — That Board’s lawyers reviewing Refugee Division’s reasons not giving rise to reasonable apprehension of bias — Refugee Division lay tribunal required to decide issues affecting life, liberty and security of person without benefit of legal input — Legal review of reasons desirable, not offending natural justice.

Judicial review — Decisions of Refugee Division reviewed by staff lawyers prior to release — Whether creating appearance offensive to natural justice principles — Question to be approached as if deciding apprehension of bias allegation: whether informed person would think it more likely than not tribunal’s decision influenced by staff lawyer’s review — Staff lawyers not representing party — Minister rarely represented at Refugee Division hearings — RHO, claimants’ representatives not necessarily legally qualified — Lay tribunal deciding claims involving life, liberty security — Legal review of reasons for decision desirable — Natural justice not offended — Review process open to abuse but no basis for concluding abuse herein.

The appellant’s Convention refugee claim was heard by two members of the Refugee Division. The legality of the decision was questioned in that only one member signed the published reasons, the other having ceased to hold office. Immigration Act, subsection 63(2) provides that where a member to whom subsection 63(1) applies (i.e. a member who has ceased to hold office) is unable to take part in the disposition of the matter, the remaining members may make the disposition. Section 69.1 provides that two members constitute a quorum for the purposes of a hearing. One member may hear and determine a claim if the person making the claim consents thereto.

The appellant also argued that the practice of the Board’s staff lawyers reviewing the tribunal’s reasons for decision before publication offended the principles of natural justice.

Held, the appeal should be allowed.

Per Mahoney J.A. (Robertson J.A. concurring): Absent consent, a Convention refugee claimant is entitled to a hearing by a two-member panel. Recourse to subsection 63(2) is a serious matter which denies a claimant a right accorded by the Act. A decision made by a single member is prima facie made without jurisdiction. When a claimant consents to or requests a hearing by a single member, that must be clearly put on the record. It should be likewise when recourse has been had to subsection 63(2). When subsection 63(2) is properly engaged, a complete statement of the material circumstances should be put on the record.

The review by staff lawyers did not involve an interested party participating in the decision making. A tribunal’s staff lawyers do not represent a party. Refugee Division hearings are not usually adversarial. The Minister is rarely represented. The Refugee Hearing Officer is not the Minister’s counsel, but is there to assist the tribunal to elicit the truth. As neither the RHO nor claimants’ representatives need be legally qualified, the panel has not necessarily had any legal input before reaching a decision. The Refugee Division is a lay tribunal required to decide claims which involve the life, liberty and security of the person. It must do so within the framework of extensive, confusing, and sometimes confused, case law. It is required to give written reasons for decisions not favourable to claimants. The desirability of legal review of those reasons is manifest. It does not offend natural justice for the panel to seek advice on legal matters contained in its reasons after it has come to a decision on essentially a question of fact. While there is scope for abuse in the reasons review process, as in any case where a decision maker consults with others before publishing reasons, there was no evidence of abuse either in this case or generally. An informed person, viewing the matter realistically and practically and having thought it through would not think it more likely than not that the tribunal’s decision had been influenced by the review of its reasons by staff lawyers.

Per Henry D.J. (concurring in the result): The Refugee Division has a duty to act judicially in accordance with the principles of natural justice. It determines issues which have significant implications for the life, liberty and security of the individual and it is therefore incumbent upon the tribunal to avoid an appearance of bias or lack of independence and to ensure that it is the tribunal’s own decision and reasons therefor that are communicated to the parties. The circumstances herein leave an unanswered question as to the role, if any, of institutional legal advisors in the tribunal’s decision. A facility for review of the tribunal’s decision was here disclosed and that could give rise to reversible error for breach of the rules of natural justice. The Court has the obligation to supervise this process and to inquire into the circumstances, including the admission of collateral evidence relevant to this issue. Had the appeal not been allowed on the first ground, the proceedings should have been adjourned to permit the Court to undertake an inquiry into this issue.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 7

Federal Court Immigration Rules, SOR/93-22, R. 17.

Federal Court Rules, C.R.C., c. 663, R. 1305.

Immigration Act, R.S.C., 1985, c. I-2, ss. 59(1) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18), 61(1),(2) (as am. idem), 63(1) (as am. idem), (2) (as am. idem), 69.1(7) (as enacted idem), (8) (as enacted idem), (10) (as enacted idem), (11)(a) (as enacted idem).

CASES JUDICIALLY CONSIDERED

DISTINGUISHED:

Re Sawyer and Ontario Racing Commission (1979), 24 O.R. (2d) 673; 99 D.L.R. (3d) 561 (C.A.); Re Emerson and Law Society of Upper Canada (1983), 44 O.R. (2d) 729; 5 D.L.R. (4th) 294; 41 C.P.C. 7 (H.C.).

REFERRED TO:

Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; (1976), 68 D.L.R. (3d) 716; 9 N.R. 115; IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282; (1990), 68 D.L.R. (4th) 524; 42 Admin. L.R. 1; 90 CLLC 14,007; 38 O.A.C. 321; Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952; (1992), 90 D.L.R. (4th) 609; 3 Admin. L.R. (2d) 173; 47 Q.A.C. 169; 136 N.R. 5.

APPEAL from a Refugee Division decision on the ground that it was signed by but one of the two members who heard the claim, and on the ground that the review of the decision by tribunal counsel prior to its publication offended principles of natural justice. Appeal allowed.

COUNSEL:

Rocco Galati for appellant.

Harley R. Nott for respondent.

SOLICITORS:

Rocco Galati, Toronto, for appellant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for judgment rendered in English by

Mahoney J.A.: The respondent was not called upon to address any of the arguments based on the merits of the appellant’s claim to be a Convention refugee. In my opinion, this appeal must be allowed on the basis of one of the objections to the legality of the decision: the fact that it was made by only one of the two members of the Refugee Division who heard the claim.

The Immigration Act [R.S.C., 1985, c. I-2 (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18)] provides:

63. (1) Any person who has resigned or otherwise ceased to hold office as a member of the Refugee Division or Appeal Division may, at the request of the Chairman, 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.

(2) Where a person to whom subsection (1) applies or any other member by whom a matter has been heard is unable to take part in the disposition thereof or has died, the remaining members, if any, who heard the matter may make the disposition and, for that purpose, shall be deemed to constitute the Refugee Division or the Appeal Division, as the case may be.

The claim was heard over three hearing days: January 23, May 2 and August 7, 1990. A draft decision dated December 20, 1990, was prepared. It contained the following:

The presiding member, Vara Singh ceased to hold office as a member of the Refugee Division and is unable to take part in the disposition of this matter. I am therefore signing these reasons ACC. to S. 63(2) as enacted by R.S.C. 1985.

That draft decision was never published. The decision in issue, dated March 1, 1991, is identical to the draft except that it does not contain the recited paragraph. There is nothing else on the record that explains why only one member made the decision. By March 1, 1991, the presiding member had, it is clear, been out of office for more than eight weeks and was disqualified from participating in the decision. It is by no means clear that he was likewise disqualified when the decision was ready for delivery December 20, 1990.

Draft reasons are not among the material which Rule 17 of the Federal Court Immigration Rules, 1993 [SOR/93-22], now permits to be included in a record nor were they among the things that general Rule 1305 [Federal Court Rules, C.R.C., c. 663], which applied to this appeal once leave was granted, permitted to be included without agreement of the parties or an order of the Court. Nothing properly on the record in this appeal supports recourse to subsection 63(2).

Section 69.1 [as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18] of the Act provides, in part,

69.1…

(7) Subject to subsection (8), two members constitute a quorum of the Refugee Division for the purposes of a hearing under this section.

(8) One member of the Refugee Division may hear and determine a claim under this section if the claimant so requests or consents thereto …

…

(10) [as am. by S.C. 1992, c. 49, s. 60] Subject to subsection (10.1), in the event of a split decision, the decision favourable to the claimant shall be deemed to be the decision of the Refugee Division.

Subsection (10.1) is not in play.

The rights assured by section 7 of the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]] are put in issue when a claim to be a Convention refugee is made. Absent consent, a claimant is entitled to a hearing by a two-member panel and is entitled to the benefit of any disagreement between them. Recourse to subsection 63(2) is a serious matter which denies a claimant a right accorded by the Act. A decision made by a single member is prima facie made without jurisdiction. When a claimant consents to or requests a hearing by a single member, that must be, as it invariably has been, clearly put on the record. It should be likewise when recourse has been had to subsection 63(2).

As a matter of law and to ensure that justice is seen to have been done, when subsection 63(2) is properly engaged a complete statement of the material circumstances should be put on the record. Such statement may, of course, be included in the reasons for decision.

Another item which was improperly included in this record is a memorandum to “CRDD Members” from the Immigration and Refugee Board’s Senior Legal Advisor in Toronto. It was not specific to this particular appeal. The full text, with emphasis added, follows.

In the last few months, the number of reasons received for review by legal services in Toronto has been overwhelming. On the average, we have received over 150 files per month. At the same time we have been working with a reduced staff due in part to special assignments in other units, resignations and normal summer vacations. The end result of this is that we have developed a substantial backlog of reasons. The seriousness of the problem has forced us to adopt some temporary changes to the reasons review process. When you receive your reasons back from legal services in the next few weeks you will notice the following changes:

—   fewer and shorter comments

—   no grammatical corrections, although we may circle the error

—   no checking of references , although we will point out difficulties, if any

—   no stylistic changes

—   with respect to legal reasoning, the review will continue to be thorough although the comments will be shorter.

There will, of course, be certain reasons which will require a more thorough review, such as reasons which raise complex legal issues. These files will continue to receive a full review.

We hope that by doing a more cursory review of files for the next few weeks, we can eliminate the backlog and go back to our usual method of reviewing reasons.

Another measure we have adopted is to send a number of files to our Montreal and Ottawa colleagues. Their co-operation in assisting legal services in Toronto cope with the increased workload is greatly appreciated. We trust you will find their comments useful.

We appreciate your understanding and regret any inconvenience his may cause. As a word of caution, we recommend that you exercise extra care in reviewing your final draft.

Lastly, if you receive a set of reasons which has been reviewed in the limited manner outlined above, but you feel it should be thoroughly reviewed, please forward it back to us with an explanatory note and we will do our best to carry out a full review expeditiously.

Thank you again for your understanding.

The review described is far removed from the situations considered in the authorities the appellant cited where an interested party had participated in the decision making. A tribunal’s staff lawyers do not represent a party.

In Re Sawyer and Ontario Racing Commission[1] the tribunal had, after reaching a conclusion and unknown to the accused, requested the prosecuting counsel to prepare written reasons which it adopted. In Re Emerson and Law Society of Upper Canada[2] the Secretary of the Law Society was required by regulation both to initiate a disciplinary proceeding and to draft the report of the Disciplinary Committee. The statute required that a writtten decision of the committee be sent to Convocation, which was empowered to take the actual disciplinary action. The committee adopted the Secretary’s report as its decision.

Hearings by the Refugee Division are not ordinarily adversarial. The Minister is rarely represented. The refugee hearing officer is not his counsel. The RHO is there to assist the tribunal in getting at the truth. The RHO is not necessarily legally qualified. Claimants are entitled to representation by counsel and most choose to be. Counsel need not be legally qualified and many are not; they are frequently friends, relatives, clergymen or immigration consultants. The latter are not always competent. The result is that a panel has not necessarily had any legal input before reaching a decision.

The Refugee Division consists of such number of full and part-time members as the Governor in Council may decide. They are appointed for terms of up to seven years. A minimum of one-tenth are required to be barristers or advocates of a least five years’ standing.[3] It would be pure coincidence if either member of a panel hearing a particular claim were legally qualified.

The Refugee Division is a lay tribunal required to decide claims which, as I have observed, involve the life, liberty and security of the person. It must do so within the framework of extensive, confusing, and sometimes confused, jurisprudence. It is required to give written reasons for decisions not favourable to claimants.[4] The desirability of legal review of those reasons is manifest. Having come to a decision on what is essentially a question of fact: whether the claimant has a well-founded fear of persecution for a reason that engages the Convention refugee definition, a tribunal does not, in my opinion, offend any tenet of natural justice by taking advice as to legal matters contained in its reasons.

While the reasons review process, both in the more limited format described in the memorandum and the full review format suggested, could be abused and result in the reviewing lawyers influencing the decisions to which the reasons relate, there is, in my opinion, simply no foundation for a conclusion that it has been, in fact, abused, either in the case before us or generally. Any consultation by a decision maker before publishing a decision, including consultation by a judge with a law clerk, could be abused. As to whether there is an appearance offensive to our notions of natural justice, it seems to me that the question to be asked is, as in dealing with an assertion of a reasonable apprehension of bias, namely, whether an informed person, viewing the matter realistically and practically and having thought it through, would think it more likely than not that the tribunal’s decision that a claimant was, or was not, a Convention refugee had been influenced by the review of its reasons by its staff lawyers.[5] In my opinion, that person would not think it likely.

I would allow the appeal, set aside the decision of the Refugee Division dated March 1, 1991, and remit the matter for rehearing by a differently constituted panel.

Robertson J.A.: I agree.

* * *

The following are the reasons for judgment rendered in English by

Henry D.J.: I agree with the disposition of this appeal as outlined by Mahoney J.A. upon the grounds of the absence of the second member of the tribunal. I do however have some reservations concerning the analysis in his later paragraphs about the issue raised by the appellant’s counsel that the decision of the tribunal is flawed by a reasonable apprehension of bias.

Apart entirely from the judicial decisions cited by Mahoney J.A., I have considered the recent decisions of the Supreme Court of Canada in IWA v. Consolidated-Bathurst Packaging Ltd., [1990] 1 S.C.R. 282 and Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952. From these decisions it is apparent that the Supreme Court of Canada is in course of defining, on a case-by-case basis, the latitude that administrative tribunals have in taking legal or policy advice from others who are not the actual decision makers, in cases where the tribunal is required in part at least to act judicially. In the case at bar there is no question that the lay tribunal (the Refugee Division) has a duty to act judicially in accordance with the principles of natural justice. It has to determine whether or not an applicant is a “Convention refugee” which is a question of mixed fact and law; in so doing it determines issues having significant implications for the life, liberty and security of the individual and it is therefore incumbent upon the tribunal to avoid, even within the facility or practice of internal consultation with legal advisors, an appearance of bias or lack of independence and to ensure that it is the tribunal’s own decision and reasons therefor that are communicated to the parties.

In the case at bar the circumstances disclosed leave an unanswered question as to the role (if any) in the decision of the tribunal, of institutional legal advisors described by Mahoney J.A. in the memorandum he cites. A facility for review of the tribunal’s decision is here disclosed which can give rise to reversible error for breach of the rules of natural justice. In my opinion this Court has the obligation to supervise this process and to inquire into the circumstances raised by counsel for the appellant including the admission of collateral evidence relevant to this issue.

Had we not allowed the appeal on the first ground I would have adjourned the proceedings to permit the Court to undertake the inquiry into the issue which I have here addressed.

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