Date: 20020716
Docket: IMM-3996-01
Neutral citation: 2002 FCT 795
BETWEEN:
HAROLD CHARLES MANI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
[1] The Applicant is a citizen of Fiji who based his Convention refugee claim on a well-founded fear of persecution due to his perceived race, namely the perception that he is Indo-Fijian. In fact, the Applicant is Polynesian.
[2] The Convention Refugee Determination Division of the Immigration and Refugee Board ("CRDD") concluded that, on the basis of his present physical, cultural, religious and language indicia, there is less than a mere possibility that the Applicant would be persecuted if he returned to Fiji and, thus, determined that the Applicant is not a Convention refugee. The Applicant brings this judicial review challenging this decision.
[3] The Applicant submits that the CRDD erred in assessing his perceived ethnicity. With regard to the factor of the Applicant's physical appearance, the CRDD said as follows:
I have heard many Fijian claims. We have a great deal of Fijian applicants right now. Fiji has become one of our major source countries in Vancouver. So we at the Board, particularly myself and two other colleagues, are hearing many of the Fijian claims, and so we have had an opportunity to observe what native-Fijians look like and what Indo-Fijians look like. But that is not an altogether reliable measurement. I do have specialized knowledge of what an Indo-Fijian person looks like and what cultural and social distinctions there are between their group and the native-Fijian group.
You do not look to me at all Indo-Fijian.
(Applicant's Record, p.5)
[4] The Applicant submits that the above passage indicates the CRDD based its decision on its own "specialized knowledge" without revealing the content of this knowledge before the decision was rendered. I agree.
[5] I accept the Respondent's submission that, since the Applicant put the issue of his physical appearance to the CRDD to support his claim, an assessment of his features is permissible. However, in my opinion, where subjective "specialized knowledge" is to be used in reaching a conclusion on a factor of critical importance such as the Applicant's physical appearance in the present case, it is incumbent on the CRDD to first disclose the content of the specialized knowledge to the Applicant before reaching a decision. By doing so, it becomes possible for the Applicant to argue whether the "specialized knowledge" is based on erroneous assumptions or is contrary to evidence on the record, and, thus, should not be relied upon.
[6] In the present case, since no such notice was given to the Applicant and, thus, he had no reason to suspect that the decision-maker would apply a purely subjective analysis to a determination on the Applicant's physical appearance, I find that the decision was reached in an error of due process.
O R D E R
Accordingly, the CRDD's decision is set aside and the matter is referred back to a different panel for redetermination.
(Sgd.) "Douglas R. Campbell"
Judge
Vancouver, B.C.
July 16, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3996-01
STYLE OF CAUSE: HAROLD CHARLES MANI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Vancouver, B.C.
DATE OF HEARING: July 16, 2002
REASONS FOR ORDER: CAMPBELL J.
DATED: July 16, 2002
APPEARANCES:
M. Lawrence Leung for Applicant
Pauline Anthoine for Respondent
SOLICITORS OF RECORD:
M. Lawrence Leung for Applicant
Surrey, B.C.
Morris Rosenberg for Respondent
Deputy Attorney General of Canada