Prasad v. Canada (Minister of Citizenship and Immigration)

Prasad v. Canada (Minister of Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2002-02-21
Neutral citation
2002 FCT 191
File numbers
IMM-1442-01
Decision Content
Date: 20020212
Docket: IMM-1442-01
Toronto, Ontario, Tuesday, the 12th day of February, 2002
PRESENT: The Honourable Mr. Justice McKeown
BETWEEN:
JUSTIN MARSHALL PRASAD
Applicant
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review is granted. The decision of the Board dated February 28, 2001 is quashed. The matter is returned for redetermination by a differently constituted Board.
"W. P. McKeown"
J.F.C.C.
Date: 20020221
Docket: IMM-1442-01
Neutral citation: 2002 FCT 191
BETWEEN:
JUSTIN MARSHALL PRASAD
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
The applicant seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated February 28, 2001, in which the Board determined the applicant was not a Convention Refugee.
The issues are: (1) whether the applicant was identified as a Fijian of Indian heritage; (2) whether the applicant was credible and (3) whether the Board erred in its alternative finding that there was not more than a mere possibility that the applicant would be persecuted.
Analysis
The parties agreed that the Board had erred in its finding that there was not more than a mere possibility that the applicant would be persecuted if the applicant were to return to Fiji.
However, the respondent took the position that the identity of the applicant as a Fijian of Indian heritage was flagged as an issue at the hearing and that the Board, in concluding that it doubted the applicant's veracity in every respect, decided that he was not a Fijian of Indian heritage.
In my view there is nothing in the Board decision which would lead to the conclusion that he was not a Fijian of Indian heritage. The Board made no finding directly on the matter. However, the Board commenced its decision by identifying the applicant as a 24-year old citizen of Fiji.
The Board, in discussing the credibility findings stated that:
The claimant's story, quite frankly, can be substantiated by country condition material and this makes it necessary for the panel to be even more careful.
The Board is even more clear on this point when it states in respect of the alternative finding on persecution:
The panel acknowledges that in many circumstances Indo-Fijians are in serious jeopardy.
If the Board was not accepting that the identity of the applicant was as a Fijian of Indian heritage, there would be no need to concern itself as to whether the documentary evidence supports the position of the Indo-Fijians. I cannot accept that the Board's conclusion "that the claimant has revealed a pattern of fabrication that gives rise to doubts, generally about the claimant's veracity in every regard" overcomes the above findings by the Board. In my view there is nothing in the Board's decision related to the applicant's identification which would lead to the conclusion that he is not a Fijian of Indian heritage.
Furthermore, it would be unfair for a matter which the Board itself stated at the start was an issue at the hearing to be decided on a very indirect reference to the issue. The respondent stated that his submissions were based on the fact that "the Board made a determination that the Applicant failed to put forward clear and convincing evidence regarding his identity" and that the respondent would succeed only if the Court found that the applicant had not established his identity before the Board. I do not have to decide whether "it was not necessary or even possible for the Board to examine the Applicant's risk of persecution" since the submissions on identity failed.
It is not necessary for me to go into details on the credibility findings, however, the credibility findings did lack clarity and some of the credibility findings were based on misapprehension of the evidence or ignoring the evidence.
The application for judicial review is granted. The decision of the Board dated February 28, 2001 is quashed. The matter is returned for redetermination by a differently constituted Board.
"W.P. McKeown"
JUDGE
TORONTO, ONTARIO
February 21, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1442-01
STYLE OF CAUSE: JUSTIN MARSHALL PRASAD
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, FEBRUARY 12, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: McKEOWN J.
DATED: THURSDAY, FEBRUARY 21, 2002
APPEARANCES BY: Mr. Ronald Poulton
For the Applicant
Mr. John Loncar
For the Respondent
SOLICITORS OF RECORD: MAMMAN & ASSOCIATES
Barristers & Solicitors
74 Victoria Street
Suite 303
Toronto, Ontario
M5C 2A5
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020221
Docket: IMM-1442-01
BETWEEN:
JUSTIN MARSHALL PRASAD
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER