Federal Court Decisions

Date: 20050506

Docket: IMM-4923-04

Citation: 2005 FC 643

Ottawa, Ontario, May 6, 2005

PRESENT:    THE HONOURABLE MADAM JUSTICE MACTAVISH

BETWEEN:

YUGAN IRLISHA MADARA AMARASINGHE

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

REASONS FOR ORDER AND ORDER

[1]       Yugan Amarasinghe is a young Sinhalese citizen of Sri Lanka. He claims to fear members of the Liberation Tigers of Tamil Eelam ("LTTE"), who have allegedly targeted him for reprisal because he told the police that Tamil gunmen were hiding near a friend's house.

[2]       The Refugee Protection Division of the Immigration and Refugee Board rejected Mr. Amarasinghe's refugee claim, finding that his story was not credible. The Board further found that Mr. Amarasinghe failed to rebut the presumption that state protection would be available to him in Sri Lanka.

[3]       Mr. Amarasinghe seeks to have the Board's decision set aside, asserting that two of the Board's credibility findings were based upon a mistaken appreciation of the evidence. He further contends that the Board erred in its treatment of the question of state protection.

Mr. Amarasinghe's Allegations

[4]       Mr. Amarasinghe claims that he was playing cricket one day in January of 2003, when the ball was hit onto the roof of a neighbouring house, which was being rented to Tamils. When he was climbing onto the roof to retrieve the ball, he looked into a window and saw six Tamils with guns in the house.

[5]       Mr. Amarasinghe says that he told his father what he had seen, and his father reported the matter to Sunil Thabrew, a friend who was a detective at the Dehiwala police station. Two of the Tamils were subsequently arrested, based upon Mr. Amarasinghe's report.

[6]       Mr. Amarasinghe says that because of this, he was threatened with death, and his family was also threatened by members of the LTTE. As a result, the family fled their home, going to live with relatives. Mr. Amarasinghe says that he later learned that Detective Thabrew had been killed by a LTTE member. Mr. Amarasinghe says that he believes that this was done to avenge the arrests of the two LTTE members. In support of this contention, Mr. Amarasinghe produced an article from a Sri Lankan newspaper, reporting the death of Detective Thabrew. According to Mr. Amarasinghe, this article corroborates his story.

Was the Board'sConclusion That Mr. Amarasinghe Was Not Credible Patently Unreasonable?

[7]       The Board had several reasons for finding that Mr. Amarasinghe's story was not credible. One reason was that, in the Board's view, the newspaper article produced by Mr. Amarasinghe did not in fact support his story.

[8]       In coming to this conclusion, the Board noted that the article appeared to connect the detective's death to an incident which occurred seven or eight months before January of 2003, which is when Mr. Amarasinghe states that he observed the Tamil gunmen.

[9]       It is clear that the Board erred in this regard. The article is dated June 29^th, 2003. As a result, the time frame for the incident leading to the detective's death fits much more closely with the story told by Mr. Amarasinghe than the Board seemed to appreciate.

[10]     However, this was not the only reason cited by the Board for discounting the probative value of the article. As the Board noted, the article makes no mention of Mr. Amarasinghe. Indeed, there is nothing in the article that would seem to connect Detective Thabrew's death to Mr. Amarasinghe in any way. While the article does refer to the detective having arrested Tamils in the past, there is nothing in the article that would tie the January arrests to the detective's death.

[11]     Mr. Amarasinghe's counsel also made submissions with respect to an alleged finding of inconsistency on the part of the Board with respect to the location of the police station where the complaint was made versus the station where the detective's killing took place. However, a review of the decision discloses that the Board did not draw any negative inferences in this regard.

[12]     In addition, as previously noted, the Board had a number of reasons for finding Mr. Amarasinghe not to be credible. I have carefully reviewed the record, including the transcript of the hearing, and Mr. Amarasinghe's Personal Information Form (or 'PIF'). In my view, the balance of the Board's negative credibility findings were reasonably open to it on the evidence before it.

[13]     As a consequence, while I am satisfied that the Board did err in its interpretation of the timing of the events referred to in the article, I am not satisfied that this error, by itself, is sufficiently material as to warrant setting aside the Board's decision.

State Protection

[14]     The Board found that Mr. Amarasinghe had not established that he had been targeted by the LTTE. I have concluded that there is no basis for interfering with the Board's finding in this regard. As a consequence, it is not necessary to address the issue of state protection.

Conclusion

[15]     For these reasons, the application is dismissed.

Certification

[16]     Neither party has suggested a question for certification, and none arises here.

ORDER

THIS COURT ORDERS that:

1.          This application for judicial review is dismissed.

2.          No serious question of general importance is certified.

                                     "Anne L. Mactavish"