Date: 19991020
Docket: IMM-428-99
BETWEEN:
FRANKLINE JOHN BEBONDAS
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.:
[1] The heart of this judicial review is the second-last paragraph of the CRDD"s decision respecting the applicant"s refugee claim which reads as follows:
| After hearing the testimony of the witness the panel is convinced that the claimant fabricated the answer to question 37. It is unfortunate that the claimant fell upon a counsel who, instead of listening to the story of the claimant and preparing the PIF in consequence put words in the claimant"s mouth and remembered things for him. The panel thus concludes that the claimant"s story was a complete fabrication. |
[2] To reach the conclusion that the claimant fabricated an answer in his PIF, the primary finding made by the panel is that portions of the applicant"s PIF are the same as that of three other refugee claimants. With respect to this conclusion, evidence was called before the panel to explain that counsel for the applicant who drew the PIF followed a standard form for such documents for claimants from Sri Lanka who shared similar experiences of persecution.
[3] With respect to this practice, the panel asked the applicant for an explanation as to why there were similarities, and despite the fact that the evidence before the panel clearly showed that any similarities were the responsibility of counsel, found that the applicant did not provide an adequate answer to the question. As a result, the panel concluded that the applicant was not credible.
[4] There are two problems with this decision. First, the conduct complained of regarding the completion of the PIF was not that of the applicant, thus he could not properly be made to account for it. In addition, there is ample evidence before the panel contradicting the finding that the "claimant fabricated" any answers. Second, there is an unwarranted leap from this finding to a finding "that the claimant"s story was a complete fabrication".
[5] In the decision-making process in the present case there was no attempt by the panel to assess the actual evidence provided by the claimant to support his refugee claim. Regardless of the view to be taken about any discrepancies found in the PIF, I find that the panel had a duty to consider the actual merits of the applicant"s case and its failure to do so constitutes a reviewable error.
ORDER
[6] Accordingly, I hereby set the panel"s decision aside and refer the matter to a differently constituted panel for redetermination.
"Douglas R. Campbell"
J.F.C.C.
TORONTO, ONTARIO
October 20, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-428-99 |
STYLE OF CAUSE: FRANKLINE JOHN BEBONDAS
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: WEDNESDAY, OCTOBER 20, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| REASONS FOR ORDER AND ORDER BY: CAMPBELL, J. |
DATED: WEDNESDAY, OCTOBER 20, 1999
APPEARANCES: Mr. Micheal Crane
For the Applicant
Mr. Marcel Larouche
For the Respondent
SOLICITORS OF RECORD: Micheal T. Crane
Barrister & Solicitor
200-166 Pearl St.,
Toronto, Ontario
M5H 1L3
| For the Applicant |
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19991020
Docket: IMM-428-99
Between:
| FRANKLINE JOHN BEBONDAS |
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
AND ORDER