Date: 20000928
Docket: IMM-1828-99
BETWEEN:
MAHMOUD ES-SAYY JABALLAH
HUSNAH MOHAMMAD AL-MASHTOULI
AHMAD MAHMOUD JABALLAH
ASH-SHAYMAA ES-SAYYID
AL-MUNZIR ES-SAYYID
AFNAN MAHMOUD ES-SAYYID
Applicants
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(Delivered from the Bench at Toronto, Ontario
on Thursday, September 28, 2000)
HANSEN J.
[1] Section 69.1 (7) of the Immigration Act requires that a Convention refugee hearing be heard by a two member panel. In the absence of a consent by the claimant, as contemplated under s. 69.1(8), the Board lacks the jurisdiction to hear the claim.
[2] Where the claimant does consent, he or she no longer has the benefit of any disagreement between the two members hearing the claim as provided in s. 69.1(10).
[3] As the absence of consent goes directly to the jurisdiction of the Board to hear the claim and given the benefit being waived, the consent must be on the record in clear and unequivocal terms.
[4] In this case, there is no consent in writing nor was there verbal consent at the hearing, accordingly the single member lacked the jurisdiction to hear the matter.
[5] For these reasons, the judicial review will be allowed, the decision dated March 14, 1999 will be set aside and the matter will be remitted back for rehearing by a differently constituted panel.
[6] Neither party submitted a question for certification.
ORDER
[7] It is hereby ordered that the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated March 14, 1999 is set aside and the matter is remitted back for rehearing by a differently constituted panel.
"Dolores M. Hansen"
J.F.C.C.
Toronto, Ontario
September 28, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-1828-99 |
| STYLE OF CAUSE: MAHMOUD ES-SAYY JABALLAH |
| HUSNAH MOHAMMAD AL-MASHTOULI |
| AHMAD MAHMOUD JABALLAH |
| ASH-SHAYMAA ES-SAYYID |
| AL-MUNZIR ES-SAYYID |
| AFNAN MAHMOUD ES-SAYYID |
Applicants
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| DATE OF HEARING: WEDNESDAY, SEPTEMBER 28, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR ORDER
| AND ORDER BY: HANSEN J. |
| DATED: WEDNESDAY, SEPTEMBER 28, 2000 |
| APPEARANCES BY: Mr. Rocco Galati |
| For the Applicants |
| Mr. David Tyndale |
| For the Defendant |
| SOLICITORS OF RECORD: Galati, Rodrigues & Associates |
| Barristers & Solicitors |
| 637 College Street, Suite 203 |
| Toronto, Ontario |
| M6G 1B5 |
| For the Applicants |
| Morris Rosenburg |
| Deputy Attorney General of Canada |
| For the Defendant |
FEDERAL COURT OF CANADA
Date: 20000928
Docket: IMM-1828-99
BETWEEN:
| MAHMOUD ES-SAYY JABALLAH |
| HUSNAH MOHAMMAD AL-MASHTOULI |
| AHMAD MAHMOUD JABALLAH |
| ASH-SHAYMAA ES-SAYYID |
| AL-MUNZIR ES-SAYYID |
| AFNAN MAHMOUD ES-SAYYID |
Applicants
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| REASONS FOR ORDER |
| AND ORDER |