Docket: IMM-5245-13
Citation:
2014 FC 1103
Toronto, Ontario, November 20, 2014
PRESENT: The
Honourable Madam Justice Mactavish
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BETWEEN:
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HASAN ALI ORS
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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JUDGMENT AND REASONS
[1]
Hasan Ali Ors’ claim for refugee protection was
rejected by the Refugee Protection Division of the Immigration and Refugee
Board on credibility grounds. Mr. Ors asserts that the Board unreasonably
concluded that a psychiatric report indicating that he suffered from dementia
and severe cognitive impairment did not explain the confusion and contradictions
in his testimony.
[2]
At the conclusion of the hearing, I advised the
parties that I would be allowing the application. These are my reasons for that
decision.
I.
Background
[3]
Mr. Ors is a retired police officer from Turkey. He claimed to have a well-founded fear of persecution in Turkey because of his
political views and because he had objected to law enforcement personnel,
including his colleagues, brutalizing detainees and individuals in crowd
control situations.
[4]
The Minister of Public Safety intervened in Mr. Ors’
case, asserting that the claim should be dismissed under Article 1F(a) of the Refugee
Convention because of the human rights abuses committed by the Turkish
police force.
[5]
Due to her concerns regarding his competency,
counsel for Mr. Ors brought a motion at the commencement of the hearing
seeking to have him declared to be a vulnerable person and to have a designated
representative appointed to assist in protecting his interests.
[6]
The motion was supported by a report from a
psychotherapist, indicating that Mr. Ors appeared to be very anxious and
somewhat disoriented during their appointment and that he could not remember
details of his experiences. The psychotherapist stated that Mr. Ors was “experiencing significant trauma and stress response symptoms
due to his experiences as well as the constant fear of having to return to Turkey.” She noted that Mr. Ors’ family doctor had diagnosed him with
depression and anxiety. The psychotherapist concluded that Mr. Ors’ “lack of memory regarding the details of his experiences, and [his]
general state of confusion and anxiety” meant that he did not have “the mental and emotional capacity to testify” at his
refugee hearing.
[7]
The Board member asked Mr. Ors a number of
questions in order to ascertain whether he was capable of appreciating the
nature of the proceedings. Mr. Ors appeared to be quite disoriented. He
could not tell the Board member why he was there. Nor could he explain what it
meant to tell the truth, and he was unable to tell the Board member the colour
of the microphone in front of him.
[8]
The Board member refused to declare Mr. Ors
to be a vulnerable person and dismissed the motion for the appointment of a
designated representative. Amongst other things, the member was concerned that Mr. Ors
had not been receiving ongoing treatment for his psychological problems. The
member was also concerned that no suggestion had been made as to a specific
individual who could act as designated representative.
[9]
Although Mr. Ors took issue with this
ruling in his memorandum of fact and law, his counsel indicated that he would
not be pursuing this argument at the hearing, and would instead focus on the
Board’s treatment of a psychiatrist’s report filed later in the proceeding.
[10]
Mr. Ors’ hearing proceeded over three days
spanning a period of approximately six months. He was examined at length by the
Minister’s representative and was also questioned by the Board and by his own
counsel. At the conclusion of the evidentiary portion of the hearing, the Board
member adjourned the case to allow the parties to file written submissions.
[11]
As a result of her ongoing concerns regarding
the quality of Mr. Ors’ testimony, particularly on the last day of his
hearing, Mr. Ors’ counsel filed a motion seeking leave to file a
psychiatric report from a Doctor Richard Stall as post-hearing evidence. Dr.
Stall noted in his report that Mr. Ors had struggled to answer many of the
doctor’s questions, including the number of children that he had.
[12]
Dr. Stall performed cognitive testing on Mr. Ors
which indicated that Mr. Ors had severe cognitive impairment. He scored 5/27 on
a test where a score of less than 26 indicated cognitive impairment and a score
of less than 9 indicated a severe cognitive impairment. Dr. Stall concluded
that Mr. Ors “fulfilled the diagnostic criteria for
Major Depressive Disorder, Posttraumatic Stress Disorder and Dementia, not
otherwise specified”.
II.
The Board’s Decision
[13]
The Board concluded that the Minister had
produced insufficient evidence to establish that Mr. Ors was excluded from
the protection of the Refugee Convention.
[14]
Insofar as its inclusion analysis was concerned,
the Board concluded that Mr. Ors had failed to establish that he had a
well-founded fear of persecution in Turkey. The Board based this finding on Mr. Ors’
lack of credibility and his lack of subjective fear, as evidenced by his delay
in seeking refugee protection after his arrival in Canada.
[15]
In concluding that Mr. Ors’ evidence was
not credible, the Board noted that his testimony was “confusing,
at times hard to follow and the claimant was contradictory in his evidence”.
The Board further noted that parts of Mr. Ors’ testimony were “extremely difficult to understand”, that some of his
evidence “ma[de] little sense”, and that his
evidence “suffered from consistent contradictions and
discrepancies without satisfactory reasons as to why this was the case”.
[16]
The Board considered the fact that Mr. Ors
was taking medication, observing that there was no evidence showing that this
medication would impair his ability to testify. The Board further noted that Mr. Ors’
testimony was punctuated with responses such as “I don’t
know”, and “I can’t remember”, answers that
impacted negatively on his credibility. The Board member was not persuaded that
the psychotherapist’s report sufficiently explained the gaps in Mr. Ors’
memory, or why he could remember some things and not others. The member
concluded that Mr. Ors’ non-responsive answers were “a
way of deflecting how lacking in credibility his evidence is once tested”.
[17]
Referring to the psychotherapist’s report, the
Board noted that a psychological report cannot serve as a “cure-all” for any and all deficiencies in an
applicant’s evidence, and that the evidence is only as reliable as the truth of
the facts upon which it is based. Having found Mr. Ors’ story not to be
credible, the Board chose to ascribe little weight to the psychotherapist’s
evidence.
[18]
As concerned Dr. Stall’s evidence, the sum total
of the Board’s analysis was its statement that:
While it is possible that the claimant suffers
from the conditions stated in the report, the panel has not been sufficiently
persuaded, based on Dr. Stall’s report of May 23, 2013 that the claimant’s
condition affected his evidence to the point that limited his ability to recall
certain events of his claim. The panel assigns low probative value to the
report from Dr. Stall.
[19]
Having concluded that Dr. Stall’s report did not
explain the numerous problems with Mr. Ors’ testimony, the Board dismissed
his claim. As was noted earlier, the only issue to be decided is the
reasonableness of this finding.
III.
Analysis
[20]
It is now well-established that reasons do not
have to be perfect, and that administrative decision-makers do not have to make
explicit findings on each constituent element leading to its final conclusion: Newfoundland
and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board),
2011 SCC 62 at paras. 16, [2011] 3 S.C.R. 708. It will be sufficient if a
decision “falls within a range of possible acceptable
outcomes which are defensible in light of the facts and the law”: Dunsmuir
v. New Brunswick, 2008 SCC 9, at para. 47, [2008] 1 S.C.R. 190.
[21]
Notwithstanding the deference that this Court owes
to a finding of fact such as the one in issue in this case, I am satisfied that
the Board’s finding that Dr. Stall’s evidence did not explain the problems with
Mr. Ors’ testimony was unreasonable as it lacked justification,
transparency and intelligibility.
[22]
The Board did not explicitly reject Dr. Stall’s
diagnoses, nor did it have the expertise to do so. Indeed, this lack of medical
expertise on the part of the Board is expressly recognized in the Board’s own
procedural guidelines. Indeed, the Board appears to have accepted Dr. Stall’s
finding that Mr. Ors “fulfilled the diagnostic criteria
for Major Depressive Disorder, Posttraumatic Stress Disorder and Dementia, not
otherwise specified”, and that his cognition was severely impaired.
[23]
The Board had itself observed that Mr. Ors’
testimony was difficult to follow, confusing and contradictory, and that some
of his answers made little sense. With that in mind, it is impossible to
ascertain from the Board’s reasons how or why it concluded that Dr. Stall’s
finding of severe cognitive impairment did not explain why Mr. Ors was unable
to consistently recall the events giving rise to his claim for refugee
protection.
[24]
In Kaur v. Canada (Minister of Citizenship
and Immigration), 2012 FC 1379, [2014] 2 F.C.R. 3, this Court observed that
the Supreme Court’s decisions in Dunsmuir and its progeny have greatly
restricted the Court’s ability to intervene in Board findings regarding the
import of psychological reports. The Court went on to observe that the Court
should not intervene “unless there is something in a
psychologist’s report which strongly suggests that an adverse
credibility finding made by the Board was unreasonable”: at para. 38,
emphasis in the original. In my view, this is such a case.
IV.
Conclusion
[25]
For these reasons, the application for judicial
review is allowed. I agree with the parties that the case does not raise a
question for certification.
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