Docket: IMM-2350-15
Citation:
2016 FC 100
Ottawa, Ontario, January 28, 2016
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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SULFICAR ALI
LIYAKAT ALI
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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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JUDGMENT AND REASONS
I.
Introduction
[1]
This is the judicial review of a Refugee
Protection Division [RPD] decision rejecting a refugee protection application
on the grounds of credibility. Only in the rarest of cases should a court
overturn such a finding – this is one of those cases because the Court is
uncertain that, had the RPD not been confused about a material incident, the
RPD would have made the same credibility finding.
II.
Facts
[2]
The Applicant is a Tamil speaking Muslim from
Sri Lanka. He attended the Main Street Mosque in Colombo – known as the Al
Jamaiul Alfar Masjid Mosque. He served on the board of that mosque and helped by
cleaning and performing other odd jobs.
[3]
Central to this case is the alleged attacks on
two different mosques. The Applicant claimed that in August 2013, the Sinhalese
group Bodu Bala Sena [BBS] attacked the Grandpass Mosque – also known as the
Deen Ul Islam Mosque - when the Applicant was present.
[4]
In July 2014, the BBS attacked the Main Street
Mosque, also while the Applicant was present. The Applicant says that he used a
loudspeaker during the attack to call on community members to protect the
mosque. As a consequence, community members fought off the BBS.
[5]
A central finding by the RPD was that the
Applicant was not present at either attack.
[6]
The Applicant claimed that he was threatened by
the BBS on 7-8 occasions, abducted by them, held and beaten. He further
contended that the police did not respond to his several complaints.
[7]
The RPD did not accept that the Applicant had
been targeted by the BBS after the Main Street Mosque attack.
[8]
While there were other instances of credibility
concerns, the Applicant’s involvement in these attacks on the two mosques was
the pivotal matter in his claim.
[9]
The RPD did not accept the Applicant’s narrative
because of what it found to be inconsistencies in his description of his
location at the time of the attacks. For example, the Applicant’s testimony was
inconsistent relating to whether he was on the second floor or outside the
mosque at the time of the attack.
[10]
This judicial review turns on the credibility
determination. As such, it is subject to the reasonableness standard of review
(Aguebor v Canada (Minister of Employment and Immigration), [1993] FCJ
No 732 (Fed CA), 42 ACWS (3d) 886) with considerable deference owned to the
trier of fact who observed the witness and who had expertise in the subject
matter.
III.
Analysis
[11]
The Court is mindful of the deference owed to
the RPD but in this case, the Board’s conclusion cannot be supported.
[12]
A review of the reasons and the transcript
confirms that the RPD was confused by the Applicant’s narrative. It confused
circumstances of the Main Street Mosque with those of the Grandpass Mosque.
Whether
this confusion arose from the Applicant’s words, the translation or the member’s
comprehension or combinations thereof is not clear.
[13]
The Respondent admitted in oral argument that
the RPD was confused about the Applicant’s location during the relevant events.
It is clear that the RPD mixed up critical events.
[14]
Therefore, this decision cannot stand. Its
foundation is too uncertain.
IV.
Conclusion
[15]
The judicial review will be granted, the
decision quashed and the matter remitted back to be determined by a different
member of the RPD.
[16]
There is no question for certification.
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