Date: 20000721
Docket: IMM-3441-99
BETWEEN:
SUBODH KUMAR CHANDA,
Applicant,
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER AND ORDER
HENEGHAN, J.
[1] Mr. Subodh Kumar Chanda ("the Applicant") applied for admission to Canada as a Convention Refugee on December 18, 1998. Following a hearing before the Immigration and Refugee Board, Convention Refugee Determination Division ("the Board"), on April 7, 1999, his claim was refused. The Board delivered its reasons orally on April 29, 1999 and in writing on June 17, 2000. Mr. Chanda has applied for judicial review of that decision. Leave to commence the application for judicial review was granted on April 25, 2000.
[2] Mr. Chanda is a citizen of Bangladesh. He is a Hindu. He claims a well-founded fear of persecution on the basis of political, but primarily, religious grounds. He also claims that state protection is not available.
[3] The Board did not find the Applicant"s evidence credible and gave reasons to support its findings. The Applicant argues that the Board erred in its findings of credibility and that the Board was tainted by bias. The Respondent replies that findings of credibility are within the jurisdiction of the Board and entitled to a high degree of deference, and denies any allegations of bias.
[4] While I recognize the high degree of deference due to a Board in making its findings, the Board is to exercise its power to make findings of credibility in a fair and objective manner.
[5] Without commenting on the credibility findings made by the Board, I will comment on the process leading to these findings. A review of the transcript of the proceedings before the Board raises a concern about a lack of objectivity by the Board in dealing with this claim. At one point the Board says:
| Well, I"m not, from my position on the dais, Mr. Norfolk, and to the Claimant, Mr. Chanda, I have no concern that this hearing at this stage may have become tainted in any way, even by a failure of objectivity. I think there may be a failure of language and I am going to suggest an either further refinement, if I may, Mr. Sharma, in that respect, that your language be one of "help me understand"; "help me understand because it seems implausible" for example, in terms of a question put.1 |
[6] The transcript reveals an atmosphere of animosity. The conduct of the hearing, including exchanges with an applicant"s counsel and a refugee claimant officer, are within the control of the Board.
[7] Although the Board later comments that no final decision has yet been made2, I am of the opinion that the quoted comments give rise to a reasonable apprehension of loss of objectivity.
[8] In the result, this application for judicial review is allowed and the matter is remitted to a different Board for redetermination.
ORDER
The application for judicial review is allowed and the matter is remitted to a different Board for redetermination.
(Sgd.) "E. Heneghan"
Judge
July 21, 2000
Vancouver, British Columbia
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: Subodh Kumar Chanda
v.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: July 19, 2000
REASONS FOR REASONS FOR ORDER AND ORDER OF HENEGHAN, J.
APPEARANCES:
| Mr. A. Norfolk For the Applicant |
| Ms. E. Pech For the Respondent |
SOLICITORS OF RECORD:
Anthony Norfolk
Barrister and Solicitor
| Vancouver, BC For the Applicant |
Morris Rosenberg
Deputy Attorney
| General of Canada For the Respondent |
__________________
1 Tribunal Record, p. 313.
2 Tribunal Record, p. 338.
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