Date: 20040915
Docket: IMM-6239-03
Citation: 2004 FC 1252
Toronto, Ontario, September 15th, 2004
Present: The Honourable Mr. Justice Blais
BETWEEN:
AKED SOLOMON
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review under s.74 of the Immigration and Refugee Protection Act, S.C. 2002 c. 27 (IRPA), of a decision of the Refugee Protection Division of the Immigration and Refugee Board (Board), dated July 25, 2003, in which the Board determined that the applicant was not a Convention refugee nor a person in need of protection.
RELEVANT FACTS
[2] The applicant is a Kurdish citizen of Iraq. He claims refugee status on the basis of political persecution.
[3] The applicant alleges that in 1997, he was arrested in the Kurdish area of Iraq, detained and tortured because he was suspected of having helped two members of the opposition flee to Turkey.
[4] He made his way to Turkey, and then Holland, where he arrived in January 1998 and where he sought refugee protection. His claim was denied in September 2000. He left Holland and entered Canada travelling with a fake Dutch passport.
[5] On the advice of the smuggler who had arranged his trip, he told immigration authorities he was a Dutch citizen, born in Morocco. This ploy failed, since he could not answer any questions in French. He was detained for a day, at which point he claimed refugee protection.
ISSUES
[6] The applicant raises numerous issues; of which two emerge with enough substance to need to be addressed:
1. Did the Board Member base her decision as to credibility on perverse and capricious findings of fact, without regard to the submissions before her?
2. Did the Board Member err in taking into account the psychological report, but ultimately dismissing its findings based on the ill credibility of the applicant?
ANALYSIS
[7] I have considered all the evidence in this file, and I cannot come to the conclusion that the Board's decision was patently unreasonable.
1. Did the Board Member base her decision as to credibility on perverse and capricious findings of fact, without regard to the submissions before her?
[8] The applicant submitted that the Board had made erroneous findings of fact, yet I cannot come to that conclusion. The board stated there were four versions, the applicant says there were only two. As a matter of fact, there were two main stories, each with slight variations, so the total of four is understandable.
[9] Given the two different tales, given the change in stories according to what might be more beneficial (by the applicant's own candid admission), it was reasonably open to the Board member to doubt anything the applicant was claiming.
2. Did the Board Member err in taking into account the psychological report, but ultimately dismissing its findings based on the ill credibility of the applicant?
[10] The only serious issue raised in the judicial review application is the fact that the Board member dealt only briefly with the expert report, which stated that the applicant suffered from post-traumatic syndrome.
[11] This issue has been raised before in numerous judicial review applications before this Court. In Dink v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 471 (T.D.), the Court stated that the Board must explain why it rejected the psychological report. This is not the case here, as the Board does not reject the psychological report, it acknowledges it; but then states that it does not in itself support the underlying story. A similar reasoning is found in Subramaniam v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 1051 (T.D.), where Justice Noël states at paragraph 10:
The Board having considered the psychological report, concluded while taking into account the Applicant's psychological profile, that his testimony was inconsistent as well as incoherent and all of which impacted on the assessment of his credibility. Such an approach shows, as was the case in Dekunle v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1403, that the Board read and considered the psychological report, but concluded that the diagnosis did not alter its findings of fact:
Here the Board did consider the psychological report and decided that it did not influence its analysis of the facts. If the Board had dismissed [the] claim solely on the basis of his demeanour or his inability to recall certain events, the report might have been more central to the Board's evaluation of the evidence. However, it also noted serious contradictions and implausibilities and omissions in [the Applicant's] testimony. In these circumstances, the Board was entitled to assess the impact of the report in light of the whole of the evidence and assign it little weight: Al-Kahtani v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 335 (QL) (TD); Canizalez v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 1492; and Boateng v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 517 (QL) (TD).
As it will be seen, the Board did find contradictions and implausibilities and omissions which were not explained in a satisfactory way.
[12] Again, in Murji v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 211, Justice Kelen writes at paragraph 16:
Contrary to the applicant's assertions, the Board did consider the psychological report. However, it did not accept the report's credibility findings since the underlying facts were in question. In this respect, I adopt the reasoning of Reed J. (as she then was) in Danailov v. Canada (MCI), [1993] F.C.J. No. 1019 at paragraph 2:
With respect to the assessment of the doctor's evidence, to find that that opinion evidence is only as valid as the truth of the facts on which it is based, is always a valid way of evaluating opinion evidence. If the panel does not believe the underlying facts it is entirely open to it to assess the opinion evidence as it did.
[13] The principle involved, as these quotes illustrate, is that the psychological report does not serve to prove the underlying refugee claim. As Justice Rothstein see in Rosales v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1454; Al-Kahtani v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 335 (T.D.) at paragraph 14; Mylvaganam v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1195 (T.D.); Khawaja v. Canada (Minister of Citizenship and Immigration),[1999] F.C.J. No. 1213 (T.D.).
[14] As in the cases cited above, the Board accepted the report for its description of the applicant's post-traumatic symptoms. The Board does not accept the claim as the underlying cause for these symptoms reported by the applicant to the psychologist. I see no reason to disturb this finding, which given the circumstances of the case, is not unreasonable. The applicant changed his story many times in his endeavour to obtain refugee status; it was not unreasonable for the Board to conclude that along the way, he lost all credibility.
[15] The Board took judicial notice of the change of regime in Iraq which has occurred since the applicant left his country. The applicant has not established that the Board made an error in assessing the new situation as presenting no great risk for the applicant.
ORDER
THIS COURT ORDERS that:
1. For these reasons, the application for judicial review is dismissed.
2. No serious question for certification.
"Pierre Blais"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6239-03
STYLE OF CAUSE: AKED SOLOMON
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: SEPTEMBER 15, 2004
REASONS FOR ORDER
AND ORDER BY: BLAIS J.
DATED: SEPTEMBER 15, 2004
APPEARANCES BY:
Mr. Gregory Willoughby FOR THE APPLICANT
Mr. John Loncar FOR THE RESPONDENT
SOLICITORS OF RECORD:
McKenzie Lake LLP
Toronto, Ontario FOR THE APPLICANT
Morris Rosenberg
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
Date: 20040915
Docket: IMM-6239-03
BETWEEN:
AKED SOLOMON
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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