Date:20010420
Docket: IMM-4594-00
Neutral citation:2001 FCT 368
BETWEEN:
MURALY MOHAN KUNJAPPAN NAIR
Applicant
- and -
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
Respondent
[1] Mr. Muraly Mohan Kunjappan Nair (the "Applicant") seeks judicial review of a decision of the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board") dated August 9th, 2000. In its decision, the Board determined that the Applicant is not a Convention refugee.
[2] The Applicant is a citizen of Sri Lanka. He claimed to have a well-founded fear of persecution resulting from the membership of his brother in the Liberation Tigers of Tamil Eelan ("LTTE").
[3] The Board rejected the Applicant's claim on the basis of a general lack of credibility, finding his evidence to be contradictory, implausible and inconsistent.
[4] In his application for judicial review, the Applicant raised four issues. The first related to an alleged breach of procedural fairness arising from remarks made by the Board at the conclusion of the Applicant's hearing when the Board indicated that it wished to receive some documentation on the question of treatment of "so called LTTE families or family". The second issue raised by the Applicant relates to the manner in which the Board made its credibility findings. As the third issue, the Applicant says that the Board applied the wrong legal test for determining whether he satisfied the criteria of a Convention refugee. Finally, the Applicant says that the Board failed to consider membership in a particular social group as a grounds for determining him to be a Convention refugee.
[5] In my opinion, this application can be disposed of on one issue and that is in respect of the credibility findings made by the Board.
[6] Upon the hearing of the application, counsel for the Respondent conceded that the Board had erred in making two of the five credibility findings noted in its reasons. These were the adverse credibility findings made by the Board against the Applicant on the basis that he had claimed to be a specialist in engine and brake repairs, and that his brother had come to see him in September 1999 to tell him either to join the LTTE or leave the country.
[7] In my opinion, the Board committed a further error when it rejected the credibility of the Applicant on the basis of its review of the evidence relating to the alleged exhibition of photographs of militants to the Applicant. In this regard, the Board made the following statement in its reasons:
In detailing his three days detention, the claimant testified that he was shown several pictures of militants (Tigers). This vital information is missing from his Personal Information Form (PIF)....This missing detail in his PIF raises further questions about his credibility.[1]
[8] There is no evidence in the transcript to support this finding made by the Board.
[9] While there is no doubt that the Board, in determining whether a claimant is a Convention refugee, is charged with the task of weighing the evidence and assessing credibility, there is equally no doubt that findings of fact made by a Board must be supported by the evidence. A finding of fact made in the absence of evidence cannot stand.
[10] Since the Applicant has shown that at least three of the negative findings of credibility made against him by the Board are unsupported by the evidence, doubt has been cast on the remaining findings of credibility made by the Board. In these circumstances, the application for judicial review must be allowed.
[11] It is not necessary for me to comment on the arguments raised by the Applicant and Respondent on the other issues outlined above.
[12] Counsel advised that there was no question for certification arising from the present application.
ORDER
[13] The application for judicial review is allowed and the matter is re-submitted to the Board for determination before a differently constituted board.
"E. Heneghan"
J.F.C.C.
OTTAWA, Ontario
April 20, 2001