Singh v. Canada ( Minister of Employment and Immigration )
92-T-2148
Reed J.
20/2/94
5 pp.
Application to quash decision no credible basis to refugee claim -- Credible basis hearing commenced on February 14, 1992 before Adjudicator and IRB member -- Substantial evidence heard before hearing adjourned -- When resumed IRB member no longer available as term expired and not reappointed -- Immigration Regulations, 1978, s. 35(5) providing inquiry may be resumed by any other adjudicator and any other member of Refugee Division where claimant consenting or where no substantive evidence introduced -- S. 35(6) providing where Adjudicator or member or both cannot resume inquiry, inquiry shall be recommenced -- Applicant choosing to recommence hearing -- Adjudicator referring to "resumption" of hearing with new IRB member -- Request for new Adjudicator refused, Adjudicator stating would "take into considera[ho]tion ... explanations for any discrepancy" between what applicant said previously and subsequently -- Act, Regulations silent re: procedure in such circumstances -- Not prohibiting member of panel who was part of incomplete hearing from sitting as member of reconstituted panel -- Application allowed -- Absence of express prohibition in statute not meaning procedure authorized if offending common law rules of natural justice -- Issue not whether Adjudicator biased or could be perceived as biased because member of first panel, but whether hearing in fact recommenced -- Panel composed of one member who heard additional (different) evidence to that of other member -- Continuing member expressly indicating intention to treat earlier evidence as part of record of subsequent hearing -- Board's normal practice when case recommenced to start anew with completely new panel not followed -- Applicant's hearing not properly recommenced -- Immigration Regulations, 1978, SOR/78-172, s. 35(5) (as am. by SOR/89-38, s. 13), (6) (as am. idem).