CITIZENSHIP AND IMMIGRATION |
Status in Canada |
Convention Refugees |
Canada (Minister of Citizenship and Immigration) v. Cortez
IMM-1908-99
McGillis J.
24/3/00
5 pp.
Application for judicial review of IRB decision finding respondent, citizen of El Salvador, Convention refugee--Issue whether IRB breached principles of natural justice by failing to provide written reasons in support of decision--Claim raised question of whether respondent ought to be excluded from protection of Convention as alleged to be member of Atlacatl battalion "notorious for having committed various international crimes"--Matter heard by one IRB member after other member's mandate expired during hearing--Decision issued over one year later--When representative requested IRB provide written reasons, informed remaining Board member's mandate had expired and no written reasons issued by Board--Application allowed--Immigration Act, s. 69.1(11)(b) providing IRB must provide reasons if Minister requests written reasons within 10 days after notification of decision--Immigration Act, s. 63(1) providing ex-member may, at request of Chairperson, at any time within 8 weeks after ceasing to hold office, take part in disposition of any matter previously heard by that person--In Canada (Minister of Citizenship and Immigration) v. Pinnock (1996), 122 F.T.R. 68 (F.C.T.D.), Motions Judge held failure of Appeal Division to provide reasons in circumstances mandated by statutory provision virtually identical to Act, s. 69.1(11), constituted breach of natural justice on basis it prejudiced applicant in prosecuting application for judicial review--Given lengthy hearing and serious issue raised herein concerning possible exclusion from protection of Convention, Chairperson ought to have requested ex-member to prepare reasons in support of decision--Failure of IRB to provide reasons in such serious and vigorously contested case simply cannot be justified or condoned--Principle enunciated in Pinnock applying equally to facts herein--Immigration Act, R.S.C., 1985, c. I-2, ss. 63(1) (as am. by S.C. 1992, c. 49, s. 52), 69.1(11) (as enacted by R.S.C., 1985 (4th Supp.), c. 28, s. 18; S.C. 1992, c. 49, s. 60).