Brailko v. Canada ( Minister of Citizenship and Immigration )
IMM-5164-94
Reed J.
30/6/95
7 pp.
Judicial review of Board's decision applicants not Convention refugees-At time Board's decision rendered, nine months after hearing, one member having ceased to hold office -- Applicants submitting further evidence in support of claim one month after former member ceasing to hold office-Issue proper application of Act, ss. 63(2) and 69.1(8) -- Requirement to explain member's inability to take part in final decision (Weerasinge v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 330 (C.A.)) not intending to render operation of s. 63(2) dependent on particular form evidence of inability expressed-S. 63(2) term "unable" not including situation where member knowing when term ending, participating in hearing, but simply not getting around to making decision before expiration of term-S. 63(2) term "unable" to be read in association with companion circumstance "or has died": unable to take part in decision referring to something unexpected and beyond control of member rendering person "unable"-Additional factor in present appeal: totality of evidence not presented until after member ceasing to hold office; thus absent member not participating in reception of part of evidence -- S. 63(2) not applying to situation where all evidence not adduced, even if oral evidence complete, as hearing of matter not completed until all evidence filed and submissions made -- S. 69.1(8) provision allowing one member to hear and determine claim only applying on consent of applicants -- As no consent given, Board lacking jurisdiction -- Fact additional evidence filed within s. 63(1) eight-week period not relevant as reasons indicating former member not available during same -- Application allowed -- Questions certified: (1) whether member, making disposition pursuant to s. 63(2), lacking jurisdiction when further documentary evidence submitted after member's term expired but within s. 63(1) eight-week period; and (2) whether absence of detailed reasons regarding member's inability to participate in disposition of matters during s. 63(1) eight-week period relevant -- Immigration Act, R.S.C., 1985, c. I-2, ss. 63(1),(2) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 52), 69.1(8) (as enacted idem).