Federal Court Decisions

Decision Information

Decision Content

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"

line

                                                                                                           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

                                                                           


 You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.