CITIZENSHIP AND IMMIGRATION |
Immigration Practice |
Mahendran v. Canada (Minister of Citizenship and Immigration)
IMM-604-03
2004 FC 255, Gibson J.
20/2/04
14 pp.
Judicial review of Refugee Protection Division of Immigration and Refugee Board's (Board) decision determining applicant not Convention refugee and not person in need of protection within meaning of Immigration and Refugee Protection Act, ss. 96 and 97--Failure to produce anything other than photo of tractor allegedly extorted from applicant by Liberation Tigers of Tamil Eelam affecting credibility--Board anticipated counsel for applicant would submit post-hearing corroborative evidence, written submissions and perhaps supplementary country conditions documentation--Within one week following hearing, applicant provided to Board supplementary submissions, evidence relating to country conditions and to ownership of tractor--Documentation returned to applicant because submitted without following requirement for submission of post-hearing documents pursuant to Refugee Protection Division Rules (Rules), r. 37(1)--Five days later, applicant resubmitted documents under cover of letter requesting acceptance as application in accordance with r. 37--Board's reasons for decision make no specific reference to applicant's post-hearing documentation--Board's conclusion applicant lacking in credibility open to it--Application dismissed on this basis alone--As to allegation Board erred in assessment of change of country conditions, Board's finding one of fact, not central to decision and open to it--As to whether Board erred in failing to rule on application to submit post-hearing evidence and in failing to consider such evidence, incumbent on Board to provide reasons for decision to accept or reject post-hearing evidence, particularly where post-hearing evidence might have been determinative--Board appearing to have neither reached decision on application nor to have taken post-hearing evidence into account if it decided to accept evidence, resulting in breach of fairness--Notwithstanding breach of fairness, Court not obliged to set aside decision under review where to refer matter back would inevitably result in no change in decision, as was case herein-- Application dismissed--Immigration and Refugee Protection Act, S.C. 2001, c. 27, ss. 96, 97--Refugee Protection Division Rules, SOR/2002-228, r. 37(1).