Date: 20030708
Docket: IMM-4757-02
Citation: 2003 FC 848
Ottawa, Ontario, this 8th day of July, 2003
Present: The Honourable Madam Justice Simpson
BETWEEN:
MUHAMED IRSHAD ABDUL SAMAD
Applicant
and
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] UPON the applicant's application for judicial review (the "Application") of a decision of two members of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") in which the members both concluded that, because he lacked credibility, the applicant is not a convention refugee (the "Decision").
[2] AND UPON noting that one Board member wrote giving six reasons for concluding that there was no credible basis for the applicant's claim.
[3] AND UPON noting further that the other Board member in brief concurring reasons (the "Concurring Member") agreed that the applicant was not a Convention refugee but said as well "I respectfully dissent with my colleague in his opinion that there was no credible or trustworthy evidence on which to determine that the Claimant is a Convention refugee".
[4] AND UPON noting that the Concurring Member did not provide reasons which showed which of her colleague's credibility findings she accepted and which she rejected.
[5] AND UPON asking counsel to address the following two issues:
1. Is the Concurring Member required to indicate which of her colleague's credibility findings she accepted and which she rejected with reasons for her conclusions?
2. Is the applicant prejudiced by the respondent's inability to provide a transcript of the Board's hearing?
[6] AND UPON hearing the submissions of counsel for both parties on the above issues in Toronto on July 3, 2003.
[7] AND UPON determining that, in the circumstances of this case which turned entirely on credibility issues, the applicant was prejudiced by the Concurring Member's failure to give reasons because, if the applicant could have identified the credibility issues on which the Board Members disagreed he might have been able to argue that those findings were weak and, if they were significant findings, he might have been able to argue that the entire Decision should have been set aside.
[8] AND UPON determining as well that, in the circumstances of this case in which the Decision depends entirely on credibility, the court is unable to conduct a fair judicial review proceeding in the absence of a transcript because it cannot assess the validity of the Decision in the following areas:
C The Decision says that the applicant made a highly prejudicial statement which the applicant denies that he made.
C The Decision describes the applicant as evasive and says that a question had to be repeated.
C The Decision also says that another question had to be asked three times and that no response was give to a follow-up question.
C The Decision indicated that, in response to a simple question about his family, the applicant gave an unintelligible response.
[9] AND UPON being advised that no question is posed for certification.
ORDER
NOW THEREFORE THIS COURT ORDERS THAT:
The application is allowed and the matter is referred back for a redetermination.
"Sandra J. Simpson"
JUDGE
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: IMM-4757-02
STYLE OF CAUSE: MUHAMED IRSHAD ABDUL SAMAD v. MCI
DATE OF HEARING: July 3, 2003
PLACE OF HEARING: Toronto, Ontario.
REASONS FOR ORDER BY: Simpson, J.
DATED: July 8, 2003
APPEARANCES BY: Mr. Kumar Sriskanda
For the Applicant
Mr. Michael Butterfield
For the Respondent
SOLICITORS OF RECORD: Mr. Kumar Sriskanada
3852 Finch Ave East,
Unit 209,
Scarboro, Ontario.
M1T 3T9
Tel: 416-321-9739
For the Applicant
Mr. Michael Butterfield
Department of Justice
130 King Street West, Suite 3400, Box 36
Toronto, Ontario
M5X 1K6
Tel:416-954-8227
Fax:416-954-8982
For the Respondent