Date: 19981026
Docket: IMM-1166-98
BETWEEN:
MOHAMED HANIFA KAMAL
MALEBAGE INDIKA D. SIGERA
Applicants
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
ROTHSTEIN, J.
[1] The applicants' refugee claims were rejected by the panel of the Immigration Refugee Board on the ground of credibility. The applicants are from Sri Lanka. They are Muslims. They alleged that the male applicant inadvertently became implicated in an LTTE attempt to bomb the World Trade Center (WTC) in Sri Lanka in 1996, and that he was arrested, detained and tortured. It was also alleged that the applicants received a death threat from the LTTE for providing information about members of the LTTE to the police.
[2] The panel did not believe the applicants' account of the attempted WTC bombing in 1996 or the male applicant's connection to it. However, contrary to the panel's express finding that it was "inconceivable that such significant discovery would not be reported by the Sri Lankan media", it was reported. Indeed, many of the details provided by the applicants to the panel about the incident were exactly as reported in the media. The respondent concedes that the panel erred with respect to the 1996 incident. It is obvious the panel ignored the documentary evidence and made its credibility finding against the applicants with respect to the 1996 incident without regard to that evidence.
[3] Respondent's counsel argues that the other credibility findings made by the panel are independent of the erroneous finding it made with respect to the 1996 incident. He says that the panel's findings that led it to not believe that the applicant was associated with the incident are reasonable and are based on evidence before the Board. While respondent's counsel has made a persuasive argument, I am unable to accede to it. When a panel bases its credibility findings on a number of examples of implausibility, factual errors with respect to a few examples will often not be fatal. However, where a panel's error is fundamental and arises from an ignoring of evidence as in this case, it cannot be overlooked by the Court.
[4] While the respondent attempts to disassociate the erroneous finding of the panel with its other findings, I am not satisfied they are independent. I cannot tell from the panel's reasoning to what extent it was influenced in not believing that the male applicant was involved in the attempted 1996 WTC bombing by its erroneous finding that the incident never occurred.
[5] In this case, in view of the fundamental error made by the panel with respect to the 1996 attempted WTC bombing, I think it would be unsafe to rely on the panel's implausibility findings with respect to the applicant's involvement with the incident. The judicial review is allowed and the matter is remitted to a different panel of the Immigration and Refugee Board for redetermination.
"Marshall Rothstein"
Judge
Toronto, Ontario
October 26, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1166-98
| STYLE OF CAUSE: MOHAMED HANIFA KAMAL |
MALEBAGE INDIKA D. SIGERA
- and -
| THE MINISTER OF CITIZENSHIP AND |
IMMIGRATION
DATE OF HEARING: THURSDAY, OCTOBER 22, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: ROTHSTEIN, J.
DATED: MONDAY, OCTOBER 26, 1998
APPEARANCES:
Mr. Michael Crane
For the Applicants
Mr. Godwin Friday
For the Respondent
SOLICITORS OF RECORD:
Mr. Michael Crane
Barrister & Solicitor
166 Pearl Street, Suite 200
Toronto, Ontario
M5H 1L3
For the Applicants
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19981026
Docket: IMM-1166-98
Between:
MALEBAGE INDIKA D. SIGERA
Applicants
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
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