Zivkovic v. Canada ( Minister of Employment and Immigration )
IMM-592-94
Reed J.
8/12/94
6 pp.
Application to set aside decision applicant not Convention refugee-Two IRB members hearing refugee claim August 11 and 30, 1993-Decision rendered January 17, 1994 by one member relying on Immigration Act, s. 63(2), although applicant not consenting to such procedure-S. 63(2) providing where person to whom s. 63(1) applies, remaining members who heard matter may make disposition-S. 63(1) providing member ceasing to hold office may within eight weeks thereof take part in disposition of matter previously heard-S. 69.1(10) providing decision favourable to applicant prevailing where split decision-Both members aware of imminent departure from Board-Must have anticipated only one of them would be rendering decision-Decision by one member breach of fundamental justice-Weerasinge v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 330 (C.A.) applied-Since Convention refugee hearing engaging Charter, s. 7 claimant entitled to two-member panel and to benefit of any disagreement between them-Recourse to s. 63(2) serious matter denying claimant right accorded by Act-Purposeful action by panel member denying individual that right rendering decision invalid-Immigration Act, R.S.C., 1985, c. I-2, ss. 63(1) (as am. by S.C. 1992, c. 49, s. 52), (2) (as am. by R.S.C., 1985 (4th Supp.), c. 28, s. 18), 69.1 (7) (as am. idem), (8) (as am. idem), (10) (as am. by S.C. 1992, c. 49, s. 60)-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.