Ottawa, Ontario, September 16, 2005
PRESENT: THE HONOURABLE MR. JUSTICESHORE
BETWEEN:
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
OVERVIEW
[1] If in a decision of the Immigration and Refugee Board, the findings of fact are patently unreasonable as per the standard of review, it is necessary to discern the facts themselves anew, through a review of the entire record underlying the findings, both the personal evidence of the Applicant and the country condition evidence.
It is a process, not unlike pentimento, meaning to find the original brush strokes and images of the narrative which struggle to emerge to present the composite picture from the repainted or the erroneously reinterpreted canvas of facts.
[2] "Where the finding of a lack of credibility is based upon implausibilities identified by the panel, the Court may intervene on judicial review and set aside the finding where the reasons that are stated are not supported by the evidence before the panel, and the Court is in no worse position than the hearing panel to consider inferences and conclusions based on criteria external to the evidence such as rationality, or common sense..."[1]
[3] "Whether or not the applicant was a credible witness, and I have already indicated that the Board's reasons for finding him not credible are based in error, that does not prevent him from being a refugee if his political opinions and activities are likely to lead to his arrest and punishment."[2]
JUDICIAL PROCEDURE
[4] This is an application for judicial review pursuant to subsection 72(1) of the Immigration and Refugee Protection Act[3] (IRPA) of the decision of the Immigration and Refugee Board, Refugee Protection Division (Board) which, on November 3, 2004, dismissed the Applicant's claim for "refugee" status pursuant to section 96 and also that of a "person in need of protection" pursuant to subsection 97(1) of IRPA.
BACKGROUND
[5] Mr. Ujitha Sanjaya Rathnayaka is a citizen of Sri Lanka. He fears persecution based on his membership in the youth Peace Alliance. Mr. Rathnayaka received threats from Sinhalese persons (Sinhalese were implicated in an attack on a camp) warning him to leave the group.[4]
[6] The Board accepted that Mr. Rathnayaka worked with the National Youth Group and the Peace Alliance, but it had credibility concerns as to whether he was in fact at a risk of persecution.[5]
ISSUES
[7] Whether the Board erred in its credibility assessment to the point that its decision is patently unreasonable?
ANALYSIS
[8] The Board stated that Mr. Rathnayaka reported to the police that thugs had harassed his mother at her home in May 2003, before he went into hiding.[6]
[9] Based on the evidence, the Board concluded that "The fact that he felt free to make this report to the police indicates that the claimant was not afraid of the police."[7]
[10] In fact, Mr. Rathnayaka did not report this incident to the police. The Board misconstrued evidence. Mr. Rathnayaka clearly indicated that he reported an earlier incident to the police, but not this one. The PIF states: "I was scared to go to the police again and report the incident because at that time..."[8]
[11] Mr. Rathnayaka's last report to the police was in April 2003 in reference to a different incident.[9]
[12] This error is significant because the Board rested its finding of credibility on Mr. Rathnayaka's having approached the police in May 2003. This finding was integral to the Board's rejection of overall credibility. Had the Board not misconstrued this evidence, it could not have drawn negative inference on this point.[10]
[13] Mr. Rathnayaka went into hiding at a colleague's place. The Board concluded that the security forces could have found Mr. Rathnayaka even if he had stayed inside.[11]
[14] Without adequate explanation, the Board made a perverse finding that between May and August 2003, the security forces could have found Mr. Rathnayaka while he hid at a friend's residence which was located in a region other than that of his home.[12]
[15] The Board further determined that that "if the security forces were after him, they could have easily stopped him from leaving, at the airport".[13]
[16] This, in and of itself, is mere speculation on the part of the Board. There was nothing in evidence cited by the Board to show that the security forces at the airport would have known of Mr. Rathnayaka's background.
[17] The only remaining concern on the part of the Board is that of delay. The Board's decision would not stand if based on delay alone.[14]
CONCLUSION
[18] Based on its analysis, the Board, in its finding of fact, was patently unreasonable.
ORDER
THIS COURT ORDERS
1. The matter be returned to the Board to be reheard by a differently constituted panel.
2. No question be certified.
JUDGE
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-9700-04
STYLE OF CAUSE: UJITHA SANJAYA RATHNAYAKA
v.
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: September 7, 2005
AND ORDER BY: The Honourable Mr. Justice Shore
APPEARANCES:
Ms. Maureen Silcoff FOR THE APPLICANT
Mr. Tamrat Gebeyehu FOR THE RESPONDENT
SOLICITORS OF RECORD:
MAUREEN SILCOFF FOR THE APPLICANT
Toronto, Ontario
JOHN H. SIMS Q.C. FOR THE RESPONDENT
Deputy Minister of Justice and
Deputy Attorney General
[1] Yada v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 37 (QL), Mr. Justice MacKay.
[2] Attakora v. Canada (Minister of Employment and Immigration) (F.C.A.), [1989] F.C.J. No. 444 (QL), JJ. Heald, Mahoney and Hugessen as per Mr. Jusstice Hugessen.
[3] S.C. 2001, c. 27.
[4] Application Record, Affidavit of Applicant, Personal Information Form (PIF) narrative and Reasons, based on both the subjective or personal evidence as well as evidence in respect of the youth Peace Alliance.
[5] Application Record, Reasons, pp. 4-5.
[6] Application Record, Reasons, p. 6.
[7] Supra.
[8] Application Record, Affidavit of Applicant, Exhibit "A", PIF narrative.
[9] Application Record, Affidavit of P. Vettraino, Transcript, pp. 16-17.
[10] Application Record, Reasons, p. 6.
[11] Application Record, Reasons, p. 5.
[12] Supra.
[13] Supra.
[14] Page 215 of the Transcript in regard to the six month visa as explained.