Date: 19990331
Docket: IMM-2586-98
BETWEEN:
THEDCHANAMOORTH SHANMUGABARATHY
SIVAMALAR SHANMUGABARATHY
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED J. (an expanded and edited version of reasons given orally)
[1] There are many errors in the Board's decision. Some are minor in nature and could not lead to a setting aside of that decision. There are others, however, that are fundamental, central, to the decision.
[2] I have thought about the evidence one finds in the transcript in the context of the reasons given by the Board for its decision. The difficulty I have is that in order to uphold the decision, I have to rewrite it. Judges, on judicial review, are not entitled to rewrite a decision in order to reach a decision different from that given by a Board. Equally, they are not entitled to rewrite a decision to support a decision that has been given by a Board. In order to uphold this decision I have to read it microscopically, I have to read it very selectively, discounting the misconstructions of the evidence found therein. This is not the proper approach when reviewing a decision.
[3] The Board misstated the evidence concerning the theft of the equipment. It stated that the male applicant had been informed by his superior that "under no circumstances would any action be taken against him." This is completely contrary to his evidence, which was that while Jaffna was under the control of the LTTE, the government was in no position to take action against him, but his superior had told him that should the Sri Lankan government, in future, gain control of the territory, it was possible that action would be taken. The applicant and his wife left the area in 1995 (i.e. five years later) after their house had been shelled, his brother-in-law and sister-in-law killed, and the Sri Lankan army was advancing. It finally did gain control of the area.
[4] The Board invented a reason for discounting the male applicant's evidence concerning the scar on his arm. I could not find in the record any direct question being put to the male applicant as to why that particular scar - its size? - its shape? (as indicative of injury by a particular weapon?) would lead to the conclusion that he was a Tiger supporter, and that he had been fighting on their behalf. Yet the Board relied on the fact that the scar did not resemble the Tiger logo as reason for finding the male applicant's evidence implausible. It stated that when asked about such resemblance the male applicant's response had been "extremely vague and inconclusive". The transcript reveals that the applicant had never suggested that any such resemblance existed, and when a Board member put this hypothesis to him, he answered "no" in unambiguous terms.
[5] There is no dispute that the Board misinterpreted the evidence when it analysed a potential IFA for the applicants in Jaffna, rather than Colombo.
[6] There is no dispute that the Board misinterpreted the evidence when it stated that the applicants had waited one year after applying for a passport before leaving Sri Lanka and that it had taken the agent one year to get the passport. The applicants left Sri Lanka in May, 1996. The evidence was that the passport(s) was (were) received in April 1996.
[7] There are numerous additional errors in the reasons that have not been referred to above.
[8] An applicant is entitled to find in reasons given for a decision some indication that he has been listened to, that his evidence has been understood, even though the decision may not be in his favour. An applicant reading the reasons of the Board in this case would not have that assurance.
[9] In summary the numerous and fundamental errors found in the decision lead to the conclusion that it was made without regard to the material before the Board.
[10] For the reasons given, the decision under review is set aside and will be referred back for rehearing.
"B. Reed"
Judge
TORONTO, ONTARIO
March 31, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-2586-98 |
| STYLE OF CAUSE: THEDCHANAMOORTH SHANMUGABARATHY |
SIVAMALAR SHANMUGABARATHY
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: WEDNESDAY, MARCH 31, 1999 |
| PLACE OF HEARING: TORONTO, ONTARIO |
| ORDER AND REASONS FOR ORDER BY: REED J. |
DATED: WEDNESDAY, MARCH 31, 1999
APPEARANCES: Mr. Toni Schweitzer
For the Applicant
Ms. Marianne Zoric
For the Respondent
SOLICITORS OF RECORD: Jackman, Waldman & Associates
| Barristers & Solicitors |
| 281 Eglinton Avenue East |
| Toronto, Ontario |
| M4P 1L3 |
| For the Applicant |
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990331
Docket: IMM-2586-98
Between:
| THEDCHANAMOORTH SHANMUGABARATHY |
SIVAMALAR SHANMUGABARATHY
Applicants
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER