Date: 20020626
Docket: IMM-4042-01
Neutral citation: 2002 FCT 719
Toronto, Ontario, Wednesday, the 26th day of June, 2002
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
KALENTHIRAN SANTHANAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
- [1] This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "CRDD"), dated July 17, 2001, wherein the Applicant was determined not to be a Convention refugee.
- [2] On the evidence on the record, the CRDD found that the Applicant is Sri Lankan, being born in the Jaffna District, and is a Tamil. However, for reasons well described by the CRDD, the Applicant was not found to be credible and, as a consequence, his evidence was effectively disbelieved.
- [3] Were the CRDD to have simply dismissed the Applicant's claim on the basis that, because he was not a credible witness and, therefore, no subjective fear could be proved, it would be difficult to find a reviewable error in the decision rendered. However, in its decision, the CRDD makes the following statement:
However, given the finding that the claimant is not a credible witness, the panel cannot conclude on a balance of probabilities that the claimant is a Sri Lankan Tamil recently arrived from the north of Sri Lanka ...Given that the panel cannot determine the claimant's identity as being a Sri Lankan Tamil recently arrived from northern Sri Lanka, it cannot assess his risk of harm, should he return to Sri Lanka. (Emphasis added).
- [4] It is agreed between counsel for the Applicant and Respondent that the emphasized statements are ambiguous. On their face, it is uncertain whether the CRDD is stating a finding of fact or law. That is, I cannot resolve whether the statements are simply factual findings that the Applicant's testimony cannot be accepted as given, or they show a misunderstanding of the legal test for proving a Convention refugee claim by requiring the Applicant to prove that he is a Tamil from the north of Sri Lanka.
- [5] It is agreed by both counsel for the Applicant and Respondent that the CRDD has a duty to make it clear that it is rejecting a refugee claim either on a question of fact or on a question of law. In my opinion, this duty has not been met in the decision rendered in the present case, and, therefore, I find that the decision rendered is made in reviewable error of law.
ORDER
1. Accordingly, I set aside the CRDD's decision and refer this matter to a different panel for redetermination.
"Douglas R. Campbell"
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4042-01
STYLE OF CAUSE: KALENTHIRAN SANTHANAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: WEDNESDAY, JUNE 26, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: WEDNESDAY, JUNE 26, 2002
APPEARANCES: Mr. Robert I. Blanshay
For the Applicant
Mr. Brad Godkin
For the Respondent
SOLICITORS OF RECORD: Robert Blanshay
Barrister & Solicitor
49 St. Nicholas Street
Toronto, Ontario.
M4Y 1W6.
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020626
Docket:IMM-4042-01
Between:
KALENTHIRAN SANTHANAM
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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