CITIZENSHIP AND IMMIGRATION |
Immigration Practice |
Kankanagme v. Canada (Minister of Citizenship and Immigration)
IMM-1317-04
2004 FC 1451, Mactavish J.
20/10/04
10 pp.
Judicial review of decision of Refugee Protection Division of Immigration and Refugee Board (Board) rejecting applicant's claim for protection because of lack of credibility--Whether Board made errors serious enough to set aside decision--Applicant, Sinhalese male citizen of Sri Lanka, claiming tortured by Sri Lankan police--Board erred in making findings of fact completely unsupported by evidence--One example of erroneous finding of fact pertaining to burns sustained on lower part of applicant's body--Board not believing burns result of being intentionally set on fire and speculated result of work as welder and use of dangerous equipment--Board also taking improper judicial notice when finding that person suffering injuries as described would have probably lost consciousness whereas applicant did not make that claim--Board also taking improper judicial notice of fact speech impediments tending to be congenital after testimony speech impediment result of electric shocks administered while in police custody--Principle that cannot simply take judicial notice of extent to which injury will interfere with individual's functioning and that nature, extent of injury and injured person's circumstances to be considered applying--R. v. Find, [2001] 1 S.C.R. 863 establishing that judicial notice dispensing with need for proof of facts clearly uncontroversial or beyond reasonable dispute--Supreme Court also establishing that fact to be either so notorious or generally accepted or capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy to be admissible--Applicant also submitting reasonable apprehension of bias based on presiding Board member's harassing questioning and sarcastic and demeaning tone--Test to determine existence of reasonable apprehension of bias whether informed person viewing matter realistically and practically can conclude bias exists--Tone, impatience, aggressive questioning of presiding member not demonstrating member lost impartiality--Conduct of presiding member alone not basis for finding of bias--Board's decision rendered orally in unstructured manner by presiding member immediately after conclusion of submissions and taking some 90 minutes to deliver--Decision reflecting remarkable degree of disdain for applicant as person and referring to him in unflattering manner--In decision, Board also making disrespectful comment on testimony regarding applicant's alleged political involvement--Board's comment viewed in light of other disparaging remarks in reasons and level of hostility demonstrated by Board member towards applicant in course of hearing--Informed person viewing matter realistically and practically, thinking matter through, would conclude existence of reasonable apprehension of bias on part of presiding member--Full extent of member's animus vis-à-vis applicant not entirely evident until decision rendered--Therefore, failure to object to Board member's conduct in course of hearing not fatal to right to argue existence of bias--Application allowed.