Date: 20110121
Docket: IMM-3857-10
Citation: 2011 FC 66
Ottawa, Ontario, January 21, 2011
PRESENT: The Honourable Mr. Justice Shore
BETWEEN:
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Michael
Reginold Anthonipillai (a.k.a. Reginold Michae Anthonipillai)
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Overview
[1]
“And
Truth has her throne on the shadowy back of doubt” (Sri Aurobindo from Savitri,
Book 1, Canto 1, page 5, verse 4).
II. Introduction
[2]
This
is an application pursuant to the Immigration and Refugee Protection Act,
SC 2001, c 27 (IRPA), for judicial review under the Federal Courts Act,
RSC 1985, c F-7, to review and set aside a decision of the Refugee Protection
Division (RPD) of the Immigration and Refugee Board, wherein the RPD determined
that the Applicant was not a Convention refugee or person in need of
protection.
III. Background
[3]
The
RPD determined that the Applicant’s account was not credible.
IV. Issue
[4]
Did
the RPD err in its credibility assessment?
V. Analysis
[5]
To
satisfy the deferential standard of review, the Applicant would have had to,
and did demonstrate that (a) it is tainted by an immediately apparent defect
that demands intervention, (b) is unreasonable on its face, and (c) unsupported
by evidence, or vitiated by failure to consider the proper factors.
[6]
The
Applicant did meet this test as demonstrated in the Applicant’s pleadings which
had born out his position.
[7]
The
Applicant has countered every single finding the RPD made in its brief reasons
on the Applicant’s credibility in a manner that casts serious doubt on the
essence and substantiation of the findings. In addition, the Court recognizes
that in the past the Applicant had been held and tortured by Sri Lankan
government forces for almost two years which, in and of itself, could have
created a pervasive fear of authorities in his country, that would have
impacted on his fear of authorities in Canada and, thus, on his responses. The
fact that the Applicant had been compensated and given his salary for that
period of his detention and torture demonstrates the extent of the Applicant’s
abuse and torture for the timeframe in question.
VII. Conclusion
[8]
It
is trite law, on an application for judicial review, that this Court is not to
substitute its decision for that of the Refugee Division. In any judicial
review of the factual determinations of a lower tribunal such as the RPD, the
primary question to be asked is whether the finding was one that could
reasonably have been made on the evidence before the RPD. If the finding is
reasonable, it must stand, and review must only take place where the findings
of fact may be construed as perverse, capricious or made without regard to the
material before it (Federal Courts Act, at para 18.1(4)(d)).
In this case, the material as analyzed in the RPD decision, subsequent to this
Court applying the Dunsmuir
v New-Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 decision criteria in regard to the test for
reasonableness, does not meet the reasonableness standard.
[9]
In
this matter, the RPD did make core findings that were unsubstantiated by the
evidence before it (Aguebor v Canada (Minister of Employment and
Immigration) (1993), 160 NR 315, 42 ACWS (3d) 886 (FCA)).
[10]
For
all of the above reasons, the Applicant’s application for judicial review is
allowed and the matter is remitted for redetermination by a differently
constituted panel.
JUDGMENT
THIS COURT’S JUDGMENT is that the application for
judicial review be allowed and the matter be remitted for redetermination by
a differently constituted panel. No question for certification.
“Michel M.J. Shore”
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