Date: 20070222
Docket: IMM-1974-06
Citation: 2007 FC 209
Toronto, Ontario, February 22,
2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
EDUARDO
HERNAN LOZANO PULIDO
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Eduardo
Hernan Lozano Pulido is a Peruvian citizen who sought refugee protection based
upon his alleged fear of persecution at the hands of the Peruvian security
forces because of his perceived support of the Shining Path terrorist
organization. His claim was rejected by the Refugee Protection Division of the
Immigration and Refugee Board on the basis that his story of persecution was
not credible.
[2]
Mr.
Lozano seeks judicial review of the Board’s decision, asserting that the Board
erred in failing to properly come to grips with the evidence before it relating
to his mental illness, and the impact that his illness had on his testimony.
The Board further erred, Mr. Lozano says, by rejecting a document that
corroborated his story on the basis that it was undated, when that was not the
case, in requiring that he produce documentary evidence corroborating his
story, and in making plausibility findings that were speculative and made
without regard to the evidence.
[3]
Notwithstanding
the high degree of deference to be paid to the Board’s findings with respect to
matters of credibility, I am satisfied that in this case, the Board’s findings
were so seriously flawed as to be patently unreasonable, and that, as a result,
the application for judicial review must be allowed, and the Board’s decision
set aside.
Background
[4]
Mr.
Lozano was in charge of a local electoral office during the Peruvian election
of 1989. He alleges that during that campaign, members of the Shining Path
broke into his office and stole a number of election related documents. When
Mr. Lozano was questioned by the police about the break-in, the police
suspected him of being an accomplice of the Shining Path. As a consequence, he
was arrested and interrogated by the “DINCOTE”, the Peruvian anti-terrorism
directorate. Mr. Lozano says that he was only released from detention as a
result of the intervention of a family friend, who was a commandant in the
police force.
[5]
Mr.
Lozano alleges that he was again arrested by the DINCOTE in 1998 because of his
alleged role in the Shining Path. During this detention, he says that he was
severely beaten. Mr. Lozano further alleges that he was interrogated about his
alleged involvement in the terrorist group, and was forced to sign a confession.
[6]
Fearing
for his safety, Mr. Lozano moved to Chincha, another region of Peru
approximately 200 kilometres away from Lima. However, he
says that when he returned to Lima to visit his family, he was threatened by
two individuals who said they would turn him in to the DINCOTE, unless he paid
them money.
[7]
Mr.
Lozano then made arrangements to leave Peru and to travel to Canada. He claims
that he had to bribe two corrupt officials in order to clear his name and
obtain legal travel documents.
[8]
After
arriving in Canada, Mr. Lozano
received a phone call from his father, who told him that a warrant had been
issued for his arrest. Mr. Lozano was so distressed by this revelation, he
attempted to commit suicide.
Procedural History of
this Case
[9]
Because
of his counsel’s concerns with respect to Mr. Lozano’s mental status, Mr.
Lozano’s refugee hearing was adjourned on order to allow counsel to seek
professional advice.
[10]
Shortly
before the first day of Mr. Lozano’s refugee hearing, his counsel filed a psychological
report with the Board from Dr. Judith Pilowsky. Based upon an assessment of Mr.
Lozano carried out in mid-August of 2005, Dr. Pilowsky reported that Mr. Lozano
suffered from a major depressive disorder of moderate severity, and had already
suffered two psychological breakdowns.
[11]
While
Dr. Pilowsky was of the view that Mr. Lozano should be able to testify at his refugee
hearing, she said that it was possible that he could break down if forced to
speak about his past trauma. Moreover, Dr. Pilowsky stated that the stress of
the hearing setting could lead Mr. Lozano to succumb to elevated anxiety, which
would affect his ability to concentrate and to recall details.
[12]
Mr.
Lozano’s refugee hearing commenced on September 27, 2005. It is clear from
both a review of the transcript and the Board member’s decision that it was a
very difficult day for all concerned. The transcript reveals that Mr. Lozano
was frequently confused and seemingly had difficulties in concentrating on the
task at hand. Moreover, his thoughts seemed disorganized, and his evidence was
frequently inconsistent and contradictory.
[13]
Shortly
after the first day of the hearing, Mr. Lozano was admitted to the Center for
Addiction and Mental Health in Toronto. According to Dr.
Pablo Diaz, Mr. Lozano was quite ill, and was suffering from paranoid
delusions, elated mood and irritability.
[13]
[14]
It
turns out that this was not his first admission to this facility. Mr. Lozano
had evidently previously been admitted to the Center for Addiction and Mental
Health in 2004, at which time he had been diagnosed as suffering from a bipolar
disorder. Dr. Diaz described a bipolar disorder as “a chronic mental illness
manifested by episodes of increased elated mood or episodes of severe
depression”.
[15]
Dr.
Diaz also stated in his report that Mr. Lozano had not been taking his
medication at the time of his first refugee hearing, and that when he stopped
taking his medication, he became irritable, grandiose, paranoid, disorganized
in his thought processes, and would have poor concentration. Moreover, Mr.
Lozano’s symptoms would be worsened by external stressors, such as his
attendance at his refugee hearing.
[16]
Dr.
Diaz reports that he himself spoke to Mr. Lozano in September of 2005, and
found him to be “very difficult to engage in a conversation”.
[17]
Dr.
Diaz’ report was prepared in December of 2005, and was provided to the Board by
Mr. Lozano’s counsel. By the time the report was prepared, Mr. Lozano was back
on his medication.
[18]
Mr.
Lozano’s refugee hearing resumed on January 13th, 2005. While Dr. Diaz’ report
was in Mr. Lozano’s Board file, it did not appear that the presiding member had
actually read it prior to resuming the hearing, although it was drawn to her
attention by Mr. Lozano’s counsel at the outset of the second hearing day.
[19]
On
the second day of the hearing, Mr. Lozano testified briefly, following which,
counsel’s submissions were received, and the hearing concluded.
The Board’s Decision
[20]
The
Board found that Mr. Lozano’s allegations of having been persecuted by DINCOTE
because he was perceived to be an accomplice of the Shining Path group to have
been inconsistent and contradictory.
[21]
In
coming to this conclusion, the Board noted the numerous inconsistencies in his
testimony, observing that Mr. Lozano’s testimony was “very weak, contradictory
and confused in many areas”. The Board further noted that in relation to the
differing versions of his testimony, Mr. Lozano had explained that “he was
confused and had trouble […] concentrat[ing]”.
[22]
The
Board also found certain aspects of Mr. Lozano’s story to have been
implausible. Consequently, the Board rejected Mr. Lozano’s claim on the basis
that it was not credible.
[23]
The
Board also declined to attribute any weight to a medical report filed by Mr.
Lozano with respect to the medical treatment that he received after his alleged
beating in 1998, because of “the general lack of credibility of this claim,
and, moreover, the absence of a date on the document”.
[24]
Insofar
as the medical evidence with respect to Mr. Lozano’s mental status was
concerned, the Board stated that between the first hearing date and the second
date, Mr. Lozano had filed “a psychological report”, explaining that he
suffered from a bipolar disorder, and had not been taking his medication at the
time of his first hearing. The Board further noted that Mr. Lozano’s counsel
had argued that his condition explained the many inconsistencies in his
testimony.
[25]
The
Board did not accept counsel’s submission, stating:
We do not accept these
explanations. During both hearings, the claimant understood the questions
asked to him and understood also what was going on. He was at a los[s]. It is
possible that the claimant is bipolar; we understand that he could also have
been very nervous at the hearings. This could have explained minor mistakes or
some moments of confusion. But his condition cannot explain what appears to be
a serious lack of knowledge of major allegations and, the omissions and
contradictions in the different documents including the numerous amended
versions of his PIF.
The implausibility of many of
his allegations … also points to a general lack of credibility of this claim.
Analysis
[26]
The
Board’s entire decision turned on the question of credibility. There is no
question that credibility findings made by the Refugee Protection Division of
the Immigration and Refugee Board are to be accorded considerable deference and
are to be assessed against the standard of patent unreasonableness.
Nevertheless, in this case I have absolutely no hesitation in concluding that
the Board’s finding that Mr. Lozano was not credible was patently unreasonable
in light of the medical evidence before the Board.
[27]
Dr.
Diaz is a qualified psychiatrist, who by the time that he prepared his report
in December, 2005, had been treating Mr. Lozano for over a year. His report is
crystal clear and unequivocal: Mr. Lozano suffered from a bipolar disorder.
As a result, the Board’s statement that it was possible that Mr. Lozano was
bipolar exhibits a degree of scepticism on the part of the presiding member
with respect to Mr. Lozano’s mental state that was entirely unwarranted in the
circumstances.
[28]
In
this regard, it bears noting that while members of the Refugee Protection
Division have expertise in the adjudication of refugee claims, they are not
qualified psychiatrists, and bring no specialized expertise to the question of
the mental condition of refugee claimants.
[29]
There
are additional problems with the Board’s analysis. Later on in the decision,
the Board refers to “the two psychological reports”, evidently not appreciating
that Dr. Diaz was a psychiatrist. By itself, this might not be particularly
troubling, but my concern with respect to the Board’s understanding of the
evidence regarding Mr. Lozano’s mental state is heightened by the fact that the
presiding member identifies both of the reports before her as being
psychological reports as having come from Dr. Pilowsky, suggesting a lack of
careful consideration of the two reports on the part of the member.
[30]
Even
more troubling is the following statement on the part of the Board:
Regarding the psychological
reports (sic), while the tribunal accepts the clinical diagnosis of Dr.
Pilowsky, it does not accept that this condition resulted from the problems
presented before the tribunal. The assessment of credibility of the domain of
the tribunal, and for the reasons given previously, the claimant is not
credible.
[31]
I
will give the member the benefit of the doubt, and assume that when she
referred to the two psychological reports of Dr. Pilowsky, she was actually
referring to the one psychological report of Dr. Pilowsky and to Dr. Diaz’
psychiatric report. That said, there is no suggestion anywhere in Dr. Diaz’
report that Mr. Lozano’s bipolarity resulted from the persecution that Mr.
Lozano says he suffered in Peru. Moreover, the issue that confronted the
Board was not the cause of Mr. Lozano’s bipolarity, but the effect that his
untreated bipolar disorder had on his ability to testify on the first day of
his refugee hearing.
[32]
The
evidence of Mr. Lozano’s treating psychiatrist as to his mental condition on
the first day of his refugee hearing was uncontroverted, and was not addressed
in any meaningful way by the Board. On September 27, 2005, Mr. Lozano had not
been taking his medication. The effect of his failure to take his medication
was that he would become confused, his thoughts would become disorganized, and
he would be unable to concentrate.
[33]
Why
did the Board find that Mr. Lozano’s story was not credible? Largely because
his evidence (most of which was given on the first day of the hearing) was
inconsistent and confused.
[34]
Hassan
v. Canada (Minister of
Citizenship and Immigration) (1999), 174 F.T.R. 288, involved a similar
situation to that presented in Mr. Lozano’s case. In Hassan, Justice
Evans stated:
19 In this case, as I have indicated,
the credibility of the applicant's testimony was fundamental to the panel's
decision. The panel explained its finding by reference to the contradictions in
the applicant's evidence, and to the slow and confused answers that he gave to
questions. Indeed, on reading the transcript I can confirm that the applicant's
evidence was on occasions quite incoherent.
20 However, in making its finding the
panel did not come to grips in its reasons with the content of the medical
report that had been submitted to it. In my opinion this report was both cogent
and relevant to the finding of credibility. The deficiencies in the applicant's
testimony that led the panel to find that it was not credible are also
consistent with the psychiatric and other problems from which the report states
that Mr. Hassan suffers, the treatment that he is receiving for them and the
results of the tests administered to Mr. Hassan by the psychologist.
21 I do not wish to be understood to be
saying that the panel's finding of non-credibility was unreasonable in light of
the medical report. Not at all. What I do say is that the reasons for decision
ought to have indicated clearly that, in assessing the applicant's credibility,
the panel explicitly addressed the content of that report.
[35]
This
is precisely the case here. It was patently unreasonable for the Board to
reject Mr. Lozano’s testimony as not credible, without properly addressing Dr.
Diaz’ opinion with respect to the effect that Mr. Lozano’s untreated bipolar
disorder had on his ability to testify on the first day of his refugee hearing.
[36]
The
respondent argued that quite apart from the Board’s finding that Mr. Lozano’s
testimony was not credible, the Board also made plausibility findings that did
not depend on Mr. Lozano’s ability to testify.
[37]
There
are several problems with this submission. First of all, it is well
established that in making plausibility findings, the Board must proceed with
caution, and that such findings should only be made in the clearest of cases,
where, for example the facts are either so far outside the realm of what could
reasonably be expected that the trier of fact could reasonably find that it
could not possibly have happened, or where the documentary evidence before the
tribunal demonstrates that the events could not have happened in the manner
asserted by the claimant: see Divsalar v. Canada (Minister of Citizenship
and Immigration), [2002] F.C.J. No. 875, 2003 FCT 653, at ¶ 24. That is
simply not the case here.
[38]
Moreover,
the medical evidence from Dr. Diaz makes it clear that Mr. Lozano was likely
unable to properly explain what happened to him in Peru, and thus there is some
question as to what exactly happened to him in that country, limiting the
Board’s ability to determine if the story was plausible.
[39]
Finally,
while the Board did certainly refer to its plausibility findings as a basis for
its finding that Mr. Lozano was not credible, a review of the decision as a
whole makes it clear that the Board’s primary reason for finding that Mr.
Lozano’s story of persecution was not credible was the inconsistencies in his
story.
[40]
The
Board was also dismissive of the one piece of documentary evidence proffered by
Mr. Lozano to corroborate his claim - namely the hospital report detailing the
injuries suffered by Mr. Lozano in 1998. The Board declined to attribute any
weight to the note because of “the general lack of credibility of this claim,
and, moreover, the absence of a date on the document”.
[41]
Quite
apart from the problems with respect to the Board’s assessment of Mr. Lozano’s
credibility which have already been discussed in detail, this statement is
simply wrong in fact. While the quality of the photocopy of the hospital note
is very poor, what is perfectly clear in the copy is the date on the note,
which is 27/05/98. As a consequence, the note fits with the time frame in
which Mr. Lozano says that he was beaten by the Peruvian authorities. As a
consequence, I am satisfied that the rationale given by the Board for declining
to attribute any weight to the document was patently unreasonable.
[42]
It
is true that the translated copy of the note does not contain the date, but
that does not excuse the Board’s error. It is the duty of the Board to
consider all of the evidence before it. For the reasons cited above, I
have no confidence that the Board did so in this case.
[43]
Given
my findings to this point, it is not necessary to address the balance of Mr.
Lozano’s arguments.
Conclusion
[44]
For
these reasons, the application for judicial review is allowed.
Certification
[45]
Neither
party has suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that:
1. This
application for judicial review is allowed, and the matter is remitted to a
different panel of the Board for re-determination; and
2. No serious question
of general importance is certified.
“Anne
Mactavish”
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