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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"

line

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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