Date: 20061220
Docket: IMM-2894-06
Citation: 2006 FC 1517
BETWEEN:
MOHAMMED ALI AHEMED
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
Pinard J.
[1]
This is an application for judicial review of a decision of
the Refugee Protection Division of the Immigration and Refugee Board (the IRB)
dated May 3, 2006, ruling that the applicant is not a “Convention refugee” or a
“person in need of protection” within the meaning of sections 96 and 97
respectively of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (the Act).
[2]
Mohammed
Ali Ahemed (the applicant) is a Muslim and a citizen of India. He was the owner
of an electrical appliance importing company in Tiruchy, Tamil Nadu state,
India, and he often travelled outside of India on business.
[3]
In
February 2005, the applicant was brought before a rival businessman,
Mr. Kannappan, who told him that he would have to give up his business
because he was Muslim. Kannappan told him that he would have to pay him every
time he or his father went on a business trip and he would have to smuggle for
him (importing goods). The applicant was beaten by Kannappan’s men and
allegedly suffered partial hearing loss in his right ear.
[4]
In
November 2004, the applicant’s father went on a business trip and paid
Kannappan the extortion money.
[5]
In
February 2005, the applicant was threatened by Kannappan once again. On the
advice of his father, the applicant went to live with his father-in-law in
Chennai.
[6]
On
May 12, 2005, the applicant’s father was found dead. According to the
applicant, Kannappan was behind the murder.
[7]
The
applicant arrived in Canada on July 10, 2005.
* * * * * * *
*
[8]
The
IRB accepted the facts on which the applicant’s claim was based, particularly
the fact that he was persecuted by Kannappan and has a well-founded fear in his
village and in the Tamil Nadu state.
[9]
However,
the IRB rejected the applicant’s claim, concluding that he had an internal
flight alternative elsewhere in India, in Delhi, for example, and possibly in
Chennai.
[10] The only
issue in this case is whether the IRB erred in concluding there was an internal
flight alternative available to the applicant in India. The IRB used the proper
test to determine if there was an internal flight alternative in this case,
that test being the two-pronged one set out in Rasaratnam v. Canada (M.E.I.),
[1992] 1 F.C. 706 (C.A.), namely, whether on a balance of probabilities there
is no serious possibility that the applicant would be persecuted in the part of
the country where an internal flight alternative exists, and whether it would
not be unreasonable, in all the circumstances, for him to take refuge there.
[11] However, in
my opinion, the IRB erred in applying the second part of this test.
[12] A
psychological or medical report may constitute objective evidence that it would
be “unduly harsh” to expect an applicant who has already been persecuted in the
past in one region of his or her native country to move to another part of that
same country (Singh v. Canada (M.C.I.), [1995] F.C.J. No. 1044
(T.D.) (QL)). In the case at bar, the applicant submitted a note from a social
worker, Dolorès Denis, indicating that he shows symptoms of depression. He also
submitted a letter from a physician, Dr. Dagher, who states that the
applicant suffers from post-traumatic stress syndrome and depression with
suicidal ideation.
[13] At first
sight, this is a serious psychological condition. On this point, the applicant
underlined the fact that the IRB did not specifically refer to the doctor’s
letter and did not take into consideration the applicant’s psychological
condition in its analysis of whether it was reasonable for him to seek
protection from persecution in another part of India.
[14] In Javaid
v. Canada (M.C.I.), [1998] F.C.J. No. 1730 (T.D.) (QL), Mr. Justice
Rothstein noted that evidence of the psychological condition of an applicant is
important to consider when determining whether an internal flight alternative
exists:
[9] However, a panel does not
immunize itself from judicial review simply because it says it considered
evidence. The circumstances must be taken into account. Where the
evidence is specific and important to the applicant's case, prima facie
credible and persuasive, I think a panel has some obligation, even very
briefly, to explain why it is not persuaded by that evidence. In
this case, I am not satisfied that the panel did have regard for the
psychological assessment in arriving at its conclusion.
[15] Cepeda-Gutierrez
v. Canada (M.C.I.), [1998] F.C.J. No. 1425 (T.D.) (QL), is very
similar to the case at bar, because in that case the IRB determined that the
claimants were credible and had a well-founded fear of persecution. It is
useful to reproduce paragraphs 27 and 28 of this decision:
Finally, I must
consider whether the Refugee Division made this erroneous finding of fact
“without regard for the material before it.” In my view, the
evidence was so important to the applicant’s case that it can be inferred from
the Refugee Division’s failure to mention it in its reasons that the finding of
fact was made without regard to it. This inference is made easier to draw
because the Board's reasons dealt with other items of evidence indicating that
a return would not be unduly harsh. The inclusion of the
“boilerplate” assertion that the Board considered all the evidence before it is
not sufficient to prevent this inference from being drawn, given the importance
of the evidence to the applicant's claim
I am supported in this
conclusion by the decision of Richard J. (as he then was) in Singh v. Canada
(Minister of Citizenship and Immigration) (1995), 30 Imm. L.R. (2d) 226
(F.C.T.D.), where the failure of the Refugee Division to mention a relevant and
credible psychological report respecting the reasonableness of requiring a
refugee claimant to return to his country of origin was held to be an error of
law. There are other cases where the omission of any discussion of similar
reports has been found not to vitiate the decision: Jhutty v. Canada
(Minister of Citizenship and Immigration), [1996] F.C.J. No. 763
(F.C.T.D.); Canizalez v. Canada (Minister of Citizenship and Immigration),
[1997] F.C.J. No. 1492 (F.C.T.D.); Randhawa v. Canada (Minister of
Citizenship and Immigration), [1998] F.C.J. No. 749 (F.C.T.D.). However, in
these cases, unlike the case at bar, the Board did at least specifically
mention or acknowledge the report, so as to justify an inference that the Board
had had regard to it.
[16] In the case
at bar, the IRB found the applicant to be credible and determined that he had a
well-founded fear of persecution. At the hearing, the applicant testified that
he had consulted his doctor about 20 times since his arrival in Canada. When
his counsel asked him why he had consulted the doctor, he answered as follows
(at page 228 of the tribunal record):
You know, due to the incidents which
happened in my home town, and because they had beaten in the ear, my ear then
started aching continuously. Further, in the night I was not able to sleep at
all properly. Two to three hours I would sleep and after that I would suddenly
get a dream as if somebody is coming to strangle me. So even now I’m continuing
to take medicine.
[17] At the end of
the hearing, counsel also referred to the applicant’s psychological condition,
as appears at page 248 of the tribunal record.
[18] In my
opinion, in these circumstances, the IRB should have at least mentioned the
doctor’s report in its reasons, which it failed to do. The IRB might have
attached some weight to this report, but because it did not mention it at all,
it is impossible to know if it even considered it. Therefore, the failure to
mention the doctor’s report in its decision is a serious error warranting
intervention by this Court. Accordingly, the application for judicial review is
allowed; the decision of the IRB dated May 3, 2006, ruling that the applicant
is not a “Convention refugee” or a “person in need of protection” within the
meaning of sections 96 and 97 of the Act, respectively, is set aside; and the
matter is referred back to a differently constituted panel for rehearing and
redetermination.
“Yvon
Pinard”
Ottawa,
Ontario
December
20, 2006
Certified true translation
Michael Palles
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