Date: 20040211
Docket: IMM-1478-03
Citation: 2004 FC 221
Toronto, Ontario, February 11th, 2004
Present: The Honourable Mr. Justice Campbell
BETWEEN:
ALVITA VIJAYASINGHA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The Applicant in the present case is Sinhalese from Sri Lanka who claims refugee protection from both the Sri Lankan authorities and the LTTE. The Applicant's evidence of persecution is extensive and contains details of detention, torture, bribery by the police, and death threats by the LTTE. The IRB did not believe the Applicant on the basis of six precise credibility findings. The Applicant argues that at least 3 of these findings are based in manifest errors of fact.
[2] In reply, the Respondent relies on the following passage from Botros v. M.C.I. 2002 FCT 1298:
A close reading of the decision shows that the CRDD did not believe a good part of the applicant's story. This consistent trend in the decision clearly affected the perception the CRDD had of her testimony. Her testimony did not impress the CRDD. Counsel for the applicant did a microscopic analysis of the decision and was successful in identifying some errors made by the CRDD. However, these errors have to be assessed in relation to the decision as a whole. I find that the errors are not consequential to the general finding of non-credibility and do not make this decision a patently unreasonable one. [Emphasis added]
[3] On the face of the decision, the IRB found that each of the credibility findings were consequential. Thus, it seems to me that, if the IRB thought that each issue was consequential, I should consider them to be consequential as well.
[4] There is no doubt on the face of the tribunal record that at least three of the IRB's consequential findings were made in manifest error of fact. In particular, the findings with respect to the place of the Applicant's detention, the circumstances of a bribe paid, and the reference to the documentary evidence with respect to a finding about the Applicant's release from detention, are simply wrong.
[5] With respect to the other three credibility findings, there is a high level of debate as to where the findings can be supported by the evidence. In my opinion, on a complicated fact pattern such as the one in the present case, it is simply not good enough to found a decision on six features of a fact scenario and then to misquote and misinterpret the evidence on at least three. As a result, I find that the errors render the decision as patently unreasonable.
ORDER
Accordingly, I set the IRB's decision aside and refer the matter to a differently constituted panel for re-determination.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-1478-03
STYLE OF CAUSE: ALVITA VIJAYASINGHA
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
DATE OF HEARING: FEBRUARY 11, 2003
PLACE OF HEARING: TORONTO, ONTARIO.
APPEARANCES BY:
Mr. Michael Korman For the Applicant
Mr. Jeremiah Eastman For the Respondent
SOLICITORS OF RECORD:
Mr. Michael Korman
Otis, Korman For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada For the Respondent
FEDERAL COURT
TRIAL DIVISION
Date: 20040211
Docket: T-1478-03
BETWEEN:
ALVITA VIJAYASINGHA
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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