Federal Court Decisions

Date: 20020328

Docket: IMM-2038-01

Neutral citation: 2002 FCT 357

BETWEEN:

                                               KHEMRAJH BARSATI BALKISSOON

                                                                                                                                                       Applicant

                                                                              - and -

                             THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

McKEOWN J.

[1]                 The applicant seeks judicial review of a decision of the Immigration Appeal Division of the Immigration and Refugee Board ("the IAD") dated March 12, 2001, wherein the Board dismissed the appeal of the applicant from the removal order made March 23, 1999.

[2]                 The issues are: 1) whether the IAD erred in assessing the evidence and 2) whether the lack of a transcript prejudiced the applicant in light of the adverse credibility findings.

[3]                 While I have some concerns about the IAD's finding that the applicant is likely to re-offend and that the possibility of rehabilitation is poor, I am unable to decide this matter in light of the lack of a transcript. The IAD notified the Administrator of the Federal Court January 28, 2002 that: "the Board is unable to provide a transcript as the tapes of the hearing are blank." The Board found:

the appellant's testimony to be contrived, self-serving and neither credible nor trustworthy.

It went on to state:

Indicative of his lack of credibility at this hearing are his many contradictory statements respecting the offence in question.

In light of the IAD's credibility findings on the issues of re-offending and rehabilitation, in my view the matter must be returned to the IAD for a redetermination by a different panel.

[4]                 The Minister relied on Hatami v. Canada (Minister of Citizenship and Immigration) [2000] F.C.J. No. 402 (T.D.) where Justice Lemieux stated at paragraph 19:

At the hearing and in a supplementary memorandum, the respondent accepted the applicant's affidavit as constituting the evidence which was before the tribunal when it made its decision. On this basis, the respondent submits this Court knows what went on at the hearing for the purposes of this review. I agree. In this case, there are no issues of credibility and no findings of contradictions, inconsistencies or implausibilities relating to primary facts which would turn on a detailed consideration of the evidence to determine whether there was proof before the tribunal upon which it could reasonably conclude in the manner it did.

Unlike in the Hatami case, in the case before me there are issues of credibility and there were findings of contradictions relating to primary facts. While I agree that some of the primary facts are not in issue, the testimony of the applicant is very important.

[5]                 Denault J. in Shang v. Canada (Minister of Citizenship and Immigration) [1999] F.C.J. No. 1467, stated at paragraph 8:

In Canadian Union of Public Employees v. Montreal, [1997] 1 S.C.R. 793 the Supreme Court laid down the principles which govern the absence or inadequacy of the transcript of a hearing with respect to the rules of natural justice. In short, the Supreme Court held in that case that when a court of law has before it an application for judicial review on this ground, it need not order a new trial unless there is a serious possibility of an error in the missing portion of the transcript, or that the omission deprived the appellant of a ground of appeal.

In this case the omission may have deprived the appellant of a ground of judicial review. As I stated earlier the findings of credibility go to the heart of the IAD's reasoning, particularly with respect to rehabilitation and re-offending.

[6]                 The application for judicial review is allowed. The decision of the IAD dated March 12, 2001 is quashed. The matter is returned to a differently constituted panel of the IAD for redetermination.

[7]                 The applicant proposed two questions dealing with the issue of rehabilitation and re-offending and in light of the fact that my decision does not deal with these matters, there will be no questions certified.

                                                                                      "W.P. McKeown"

                                                                                                       JUDGE

OTTAWA, ONTARIO

March 28, 2002