Docket: IMM-2278-14
Citation:
2015 FC 732
Ottawa, Ontario, June 10, 2015
PRESENT: The
Honourable Mr. Justice Russell
|
BETWEEN:
|
|
NIRUJAN
SIVARAJA
(A.K.A. NIRUJAN
SIVARAJAH)
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
This is an application under s 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [Act] for judicial review of the
decision of the Refugee Protection Division of the Immigration and Refugee
Board [Board], dated February 24, 2014 [Decision], which refused the
Applicant’s application to be deemed a Convention refugee or person in need of
protection under ss 96 and 97 of the Act.
II.
BACKGROUND
[2]
The Applicant is a Tamil man from northern Sri Lanka. He seeks refugee protection based on his fear of the Sri Lankan Army, the
police, and paramilitary groups.
[3]
The Applicant says that he has been arrested,
detained and extorted by the police, the Karuna group, and the Eelam People’s
Democratic Party [EPDP]. He has also been accused of being a supporter of the Liberation
Tigers of Tamil Eelam [LTTE].
[4]
The Applicant left Sri Lanka for Thailand in March 2010. He arrived in Canada in August 2010 aboard the M.V. Sun Sea
ship. He says that the Sri Lankan Army continues to search for him at his
mother’s home and at his aunt’s home.
III.
DECISION UNDER REVIEW
[5]
On February 24, 2014, the Board determined that
the Applicant was neither a Convention refugee nor a person in need of
protection.
[6]
The Board found that the Applicant was not a
credible witness because he testified about events that were not included in
his Personal Information Form [PIF] or his amended PIF. His credibility was
also undermined due to inconsistencies in his PIF narrative, the fact that his
reason for leaving Sri Lanka was based on speculation, and his lack of
supporting documentation.
[7]
The Board first addressed a doctor’s note that
the Applicant submitted three days before the hearing. It was dated six days
before the hearing and indicated: “[the Applicant]
suffers from memory impairment probably resulted from the stress related to the
recently diagnosed serious illness” (CTR at 329). The Board gave the
note little weight because it did not say whether the doctor’s finding was
based upon the Applicant’s self-reporting or whether there was any diagnosis to
support the finding. The Board acknowledged that the Applicant had received
chemotherapy in Canada; however, it found that there was no indication in the
documentary evidence that the Applicant had suffered any mental impairment or
memory problems as a result of the chemotherapy. In addition, the doctor’s note
indicated that the Applicant’s memory problems began after his cancer
diagnosis; this could not account for the discrepancies between the Applicant’s
original PIF and his interviews with Canada Border Services Agency [CBSA] officers.
[8]
The Board also said that the Applicant’s
difficulties testifying did not appear to be indicative of memory problems. For
example, in response to one particular question, the Applicant provided a list
of five detailed points. When the Board asked the Applicant how he was able to
remember those five points, the Applicant said that he had memorized the list.
The Board said this indicated that the Applicant is not experiencing any real
memory impairment and that the Applicant only went to the doctor for the
purpose of his refugee claim.
[9]
The Board addressed a number of inconsistencies
in the Applicant’s testimony, PIFs and CBSA interviews. The Board first
addressed the Applicant’s testimony that his problems with the Karuna group and
EPDP began before 2005. The Applicant testified that he left Jaffna because his
best friend had been shot and another friend seriously injured. The Board asked
the Applicant why these details were not in his PIF, and the Applicant said he
could not remember everything while he was detained. The Board asked the
Applicant why the details were not in his amended PIF, and the Applicant said
he did not like to think about certain things. The Board rejected the Applicant’s
explanations and made a negative credibility finding due to the importance of
these omissions to his PIF narrative. The Board also pointed to the fact that
the Applicant told the CBSA officer that he left Jaffna because two of his
friends had been abducted and he did not know whether they were alive or not.
The Applicant failed to provide a credible explanation for this inconsistency;
he again said that he had been so affected by the incident that he did not like
to talk about it. The Board said that the fact an event had an important effect
on someone is an inadequate explanation for an important inconsistency. The
Board concluded that there was insufficient credible and trustworthy evidence
to find that the events the Applicant said precipitated his departure from
Jaffna in 2005 had actually occurred.
[10]
The Board also found an inconsistency in the
fact that the Applicant testified that when he was released from one of his
detentions, he was told to report any newcomers in the area. In his PIF, the Applicant
said that when he was released from detention, he was told to immediately leave
the area. The Applicant failed to provide an explanation for the inconsistency.
[11]
The Applicant also told a CBSA officer that he
had never been fingerprinted, but, in his oral testimony and his PIF, the
Applicant said he was fingerprinted before he was released from detention.
Again, the Applicant’s only explanation was that he did not like to think of
the past. The Board rejected this explanation because a refugee claim depends
on a claimant to think of the past. The Board said the Applicant’s explanation
may have been acceptable had he failed to remember a particularly traumatic
event, but the question simply asked whether the Applicant had ever been
fingerprinted.
[12]
The Applicant also failed to explain why he had
not told the CBSA officer about all of his detentions. The Applicant described only
one detention to the CBSA officer. When the CBSA officer asked if the Applicant
had been arrested any other time, the Applicant said that he had not.
[13]
The Applicant also provided inconsistent
evidence regarding another one of his detentions. The Applicant told a CBSA
officer that he had been travelling by motorcycle when he was arrested and
detained. However, he testified that he had been travelling by bus when he was
arrested and detained. The Board rejected the Applicant’s explanation that the
time he was arrested when travelling by motorcycle was a second arrest during
the same trip and that the inconsistencies were due to his forgetfulness. The
Board pointed to further inconsistencies regarding the detention: the
Applicant’s PIF said that a bribe was paid for his release to the police
through the Karuna group; however, he testified that this was merely
speculation and the bribe had gone to either the Karuna group or EPDP. The
Applicant also told the CBSA officer that the bribe was three lahk rupees but
testified that it was one lahk rupee. The Board concluded that there was
insufficient credible and trustworthy evidence to find that this detention had
actually occurred.
[14]
Finally, the Board addressed the inconsistencies
in the Applicant’s PIF narrative related to his return to Jaffna. The Applicant
testified that he returned to Jaffna in 2009 with his father because his father
was seriously ill. He also testified that his father died one month after they
arrived in Jaffna. However, in his PIF, the Applicant said that he went to Jaffna in May 2008 and that his father died in May 2009. A further piece of paperwork that
the Applicant filed with Citizenship and Immigration Canada indicated that his
father died in April 2009. The Applicant was unable to explain the
discrepancies. The Board said it could not determine which month, or even which
year, the Applicant had returned to Jaffna and whether he travelled alone or
with his father. The Board said that this was a particularly important area of
concern because it was supposed to explain why the Applicant left southern Sri
Lanka, where he was living in relative safety, and returned to Jaffna in the
midst of the escalation of the civil conflict.
[15]
The Board gave little weight to a letter from
the Applicant’s mother. It discussed events that happened while the Applicant
was living in southern Sri Lanka and says that the Sri Lankan Army continues to
search for the Applicant in southern Sri Lanka. The Board said that the letter
had to be based on things that the Applicant had told his mother because he
never claimed that she was present in southern Sri Lanka. The letter also failed
to mention the problems that she may have had direct knowledge of; specifically,
the problems with the Applicant’s friends that he says precipitated his
departure from Jaffna.
[16]
The Board also gave a letter from the
Applicant’s aunt little weight because it failed to mention any of the events
that the Applicant said she was present at, including the time that she paid a bribe
for his release from detention.
[17]
The Board also gave little weight to a letter
from a physician in Sri Lanka. It simply said that the Applicant had visited a clinic
due to chest pains because he was assaulted by security personnel. There was no
indication that the Applicant was examined or received any treatment or
diagnosis. In addition, the letter says that the Applicant visited the clinic
in August 2009, but the Applicant said he was beaten and suffered chest pain in
2006. He also failed to mention that he received medical treatment following
the beating in his PIF.
[18]
The Board said that the Applicant had failed to
provide credible or trustworthy evidence that he was ever detained or had
problems in Sri Lanka. It found that the events had not occurred but had been
crafted to bolster the Applicant’s refugee claim. The Board made a negative
credibility finding based on the accumulation of contradictions between the
Applicant’s testimony, his PIFs, and his CBSA interview. The Board said that
its credibility finding extended to the Applicant’s supporting documentation
including the letters from his mother, his aunt, the physician, and a Sri
Lankan Justice of the Peace.
[19]
Finally, the Board said that there was no
evidence that the Applicant was a person of interest in Sri Lanka. The Applicant left Sri Lanka on his own passport which supported its finding that the
Applicant was not a person of interest to the Sri Lankan government. The
Applicant testified that he used an agent to leave the country, but the Board
said that if the Applicant had used an agent then it was reasonable to expect
that he would have included that in his PIF in light of the fact that his PIF
says he used an agent to board the M.V. Sun Sea. The Applicant also
testified that the only involvement his family ever had with the LTTE was that
his father had to give the family jewels to the LTTE during the civil war. As a
result, there was insufficient evidence to conclude that the Applicant is
suspected of having LTTE links. In light of the lack of credible evidence that
the Applicant was mistreated in Sri Lanka, the Board found no serious
possibility that he was a person of interest when he left Sri Lanka or that he
would be a person of interest when he returned.
[20]
The Board also found that the Applicant’s fear
was not well founded on the documentary evidence. The Applicant does not have
the profile of someone who would face risk. The Applicant claimed a risk based
on the following factors: he is a young Tamil man from Jaffna; he was detained
and beaten by police and paramilitary groups; he is a failed asylum seeker who
will be a target for extortion, abduction, or worse; he failed to leave southern
Sri Lanka after he was detained; and he travelled on the M.V. Sun Sea. The
Board said that the documentary evidence indicates that failed asylum seekers
are not particularly targeted. The Applicant has no ties to the LTTE and no
history of political opposition in Sri Lanka or Canada. If he were suspected of
supporting the LTTE, he would have been targeted on his way out of the country.
He travelled on his own passport and the evidence indicates that Sri Lanka has a sophisticated tracking system for everyone travelling to or from the
country. There is no credible evidence that he was ever arrested. The evidence
is clear that the Sri Lankan government did not think everyone aboard the M.V.
Sun Sea was an LTTE member or supporter.
[21]
The Board also considered whether the Applicant
had a sur place claim. It found that there was no credible, persuasive
evidence that the Sri Lankan government suspects people of having LTTE
connections simply because they were on the M.V. Sun Sea. There is no
evidence that would suggest the Applicant has a particular profile as an LTTE
supporter; neither he nor his family ever had any connection to the LTTE. The
fact that the Applicant is a Tamil man who came to Canada on the M.V. Sun
Sea does not equate to a particular social group. The Board said that the
fact the Canadian government found no evidence to consider inadmissibility
proceedings against the Applicant supported its finding that he has no LTTE
connections.
[22]
The Board also concluded that the Applicant’s
fear that he would be extorted as a failed asylum seeker was a generalized risk
faced by all who are perceived to be wealthy in Sri Lanka.
[23]
The Board concluded that the Applicant was
neither a Convention refugee nor a person in need of protection.
IV.
ISSUES
[24]
The Applicant raises two issues in this
proceeding: Whether the Board’s credibility findings are unreasonable; and
whether the Board breached procedural fairness by failing to put its concerns
regarding the documentary evidence to the Applicant.
V.
STANDARD OF REVIEW
[25]
The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] held that a standard of review analysis
need not be conducted in every instance. Instead, where the standard of review
applicable to a particular question before the court is settled in a
satisfactory manner by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless, or where the
relevant precedents appear to be inconsistent with new developments in the
common law principles of judicial review, must the reviewing court undertake a
consideration of the four factors comprising the standard of review analysis: Agraira
v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para
48.
[26]
The parties agree that the Decision is reviewable
on a standard of reasonableness: Dunsmuir, above, at paras 47-48, 51.
The Court concurs: Mercado v Canada (Citizenship and Immigration), 2010
FC 289 at para 22; De Jesus Aleman Aguilar v Canada (Citizenship and
Immigration), 2013 FC 809 at para 19. Questions of procedural fairness are
reviewable on a standard of correctness: Mission Institution v Khela,
2014 SCC 24 at para 79; Exeter v Canada (Attorney General), 2014 FCA 251
at para 31.
[27]
When reviewing a decision on the standard of
reasonableness, the analysis will be concerned with “the
existence of justification, transparency and intelligibility within the
decision-making process [and also with] whether the decision falls within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and law”: see Dunsmuir, above, at para 47; Canada
(Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59 [Khosa].
Put another way, the Court should intervene only if the Decision was
unreasonable in the sense that it falls outside the “range
of possible, acceptable outcomes which are defensible in respect of the facts
and law.”
VI.
STATUTORY PROVISIONS
[28]
The following provisions of the Act are
applicable in this proceeding:
|
Convention refugee
|
Définition de « réfugié »
|
|
96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
|
96. A qualité
de réfugié au sens de la Convention — le réfugié — la personne qui, craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa
nationalité, de son appartenance à un groupe social ou de ses opinions
politiques :
|
|
(a) is
outside each of their countries of nationality and is unable or, by reason of
that fear, unwilling to avail themself of the protection of each of those
countries; or
|
a) soit se
trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de
cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
|
|
(b) not
having a country of nationality, is outside the country of their former
habitual residence and is unable or, by reason of that fear, unwilling to
return to that country.
|
b) soit, si
elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait
sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y
retourner.
|
|
Person in
need of protection
|
Personne à
protéger
|
|
97. (1) A
person in need of protection is a person in Canada whose removal to their
country or countries of nationality or, if they do not have a country of
nationality, their country of former habitual residence, would subject them
personally
|
97. (1) A
qualité de personne à protéger la personne qui se trouve au Canada et serait
personnellement, par son renvoi vers tout pays dont elle a la nationalité ou,
si elle n’a pas de nationalité, dans lequel elle avait sa résidence
habituelle, exposée :
|
|
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
|
a) soit au
risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture
au sens de l’article premier de la Convention contre la torture;
|
|
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
|
b) soit à une
menace à sa vie ou au risque de traitements ou peines cruels et inusités dans
le cas suivant :
|
|
(i) the
person is unable or, because of that risk, unwilling to avail themself of the
protection of that country,
|
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
|
|
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
|
(ii) elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
|
|
(iii) the
risk is not inherent or incidental to lawful sanctions, unless imposed in
disregard of accepted international standards, and
|
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
|
|
(iv) the risk
is not caused by the inability of that country to provide adequate health or
medical care.
|
(iv) la
menace ou le risque ne résulte pas de l’incapacité du pays de fournir des
soins médicaux ou de santé adéquats.
|
|
Person in
need of protection
|
Personne à
protéger
|
|
(2) A person
in Canada who is a member of a class of persons prescribed by the regulations
as being in need of protection is also a person in need of protection.
|
(2) A
également qualité de personne à protéger la personne qui se trouve au Canada
et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
|
VII.
ARGUMENT
A.
Applicant
[29]
The Applicant submits that the Decision is
unreasonable because the Board failed to provide any proper basis for its
various credibility findings: Sebahtu v Canada (Citizenship and Immigration),
2010 FC 200 at paras 12-13. The Applicant challenges the Board’s credibility
findings in eight discrete ways.
[30]
First, the Board speculated about
inconsistencies without any evidentiary foundation: Armson v Minister of
Employment and Immigration (1989), 101 NR 372 (FCA).
[31]
Second, the Board erred in finding that the
Applicant does not suffer from any memory impairment. The Board has no memory
expertise and the inconsistencies in the Applicant’s evidence should have been
viewed in light of his documented memory impairment: Reyes v Canada (Minister
of Employment and Immigration), [1993] FCJ no 282 (CA); Sanghera v
Minister of Employment and Immigration (1994), 73 FTR 155; Nievas v
Canada (Minister of Citizenship and Immigration) (1998), 144 FTR 224. A
refugee claim is not a memory test and the Applicant’s failure to recall dates
should not be the foundation of a credibility finding: Sheikh v Canada (Minister of Citizenship and Immigration) (2000), 190 FTR 225 at para 28. The
Board also breached procedural fairness in failing to present its concerns
regarding how soon before the hearing the Applicant acquired the doctor’s note:
Kegaj v Canada (Citizenship and Immigration), 2008 FC 388.
[32]
Third, the Board engaged in an improper
microscopic examination of peripheral or irrelevant issues: Chao v Canada
(Citizenship and Immigration), 2007 FC 1122 at para 6; Attakora v
Minister of Employment and Immigration (1989), 99 NR 168 (FCA); Lubana v
Canada (Minister of Citizenship and Immigration), 2003 FCT 116. For
example, the Applicant says that the inconsistencies in his evidence regarding
why he left Jaffna are irrelevant because they are unrelated to why he sought
protection in Canada.
[33]
Fourth, the Board erred in drawing negative
inferences because of the discrepancies between the Applicant’s testimony and what
he told the CBSA officer. A claimant is not required to provide every detail of
his claim at his port of entry [POE] interview: Cetinkaya v Canada (Citizenship and Immigration), 2012 FC 8 at para 51; Sawyer v Canada (Minister of Citizenship and Immigration), 2004 FC 935. The Board also failed to
appreciate that his responses were provided through an interpreter which
carries a high probability for misunderstandings: Kanapathipillai v Canada
(Minister of Citizenship and Immigration), [1998] FCJ no 1110 at para 8
(QL)(TD).
[34]
Fifth, the Board erred in assuming that the Applicant’s
agents of persecution were rational actors: Yoosuff v Canada (Minister of Citizenship and Immigration), 2005 FC 1116 at para 8. The Applicant cannot
be expected to explain the inconsistency between the police ordering the
Applicant to leave the city immediately and also ordering him to report any
newcomers to the area.
[35]
Sixth, the Board erred in making any negative
credibility findings due to missing details in his PIF because he made timely
amendments: Gimenez v Canada (Minister of Citizenship and Immigration),
2005 FC 1114 at para 5.
[36]
Seventh, the Board erred in rejecting the
Applicant’s mother’s evidence simply because she was not present at the events
she spoke of. The Applicant was in the best position to inform his mother about
his experiences. The Board also erred in rejecting the aunt’s letter because it
did not include the details it would have liked to see: Mahmud v Canada
(Minister of Citizenship and Immigration), [1999] FCJ no 729 (QL)(TD) [Mahmud].
[37]
Eighth, the Board’s findings regarding the
Applicant’s ability to acquire a passport are unreasonable. He acquired the
passport in 2005 which is before he was suspected of having LTTE ties. The
Federal Court has also held that a claimant’s ability to travel on his or her
own passport is not determinative of risk: Canada (Citizenship and
Immigration) v Fernando, 2012 FC 706 at para 13. It also over-simplistic to
conclude that the authorities have no interest in the Applicant due to the fact
that he was released after he was questioned: B027 v Canada (Citizenship and Immigration), 2013 FC 485 at para 8.
[38]
The Applicant also submits that the Board erred
in its treatment of the documentary evidence that discusses the risks that
failed asylum seekers face. The Board failed to mention the evidence which
directly contradicted its position: Toriz Gilvaja v Canada (Citizenship and Immigration), 2009 FC 598; Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration) (1998), 157 FTR 35 at para 17.
[39]
The Applicant also submits that the Board’s sur
place analysis is unreasonable because it relies on the improper finding
that the Applicant had no profile with the authorities before he left Sri Lanka. The Applicant’s evidence is that he was targeted and mistreated. Regardless,
past suspicions are not a prerequisite for a sur place finding; the
question is whether the Applicant’s actions after leaving Sri Lanka place him at risk upon his return to Sri Lanka.
[40]
Finally, the Board erred in finding that the
Applicant faces only a generalized risk. The Applicant fears paramilitary
groups whose sole motivation is not extortion.
B.
Respondent
[41]
The Respondent submits that the Court should not
interfere with the Board’s credibility determination. The Board had the
advantage of seeing and hearing the Applicant and the Court is not entitled to
reweigh the evidence: Khosa, above; Aguebor v Minister of Employment
and Immigration (1993), 160 NR 315 (FCA); Ambros v Canada (Minister of
Citizenship and Immigration), [1998] FCJ no 299 (QL)(TD). The totality of
the Board’s findings on the contradictions, inconsistencies and
implausibilities led to the finding that the Applicant was not credible. The
Board did not engage in any speculation but provided detailed reasons regarding
why it found the Applicant’s account lacked credibility. It was open to the
Board to find the Applicant not credible based on his inconsistent testimony: Sheikh
v Canada (Minister of Employment and Immigration), [1990] 3 FC 238 at 244
(CA); Kanagasabapathy v Canada (Minister of Citizenship and Immigration),
2003 FCT 78.
[42]
The Board reasonably found that the Applicant
did not face a serious possibility of risk or persecution. The Board considered
the documentary evidence and noted the inconsistencies regarding the security
situation in post-war Sri Lanka. The fact that the Applicant is a Tamil man
from Jaffna does not automatically qualify him for protection: B198 v Canada
(Citizenship and Immigration), 2013 FC 1106 at paras 51, 55.
[43]
The Board’s sur place analysis is
reasonable. There is no evidence that the Sri Lankan government perceived all M.V.
Sun Sea passengers to have LTTE connections, nor is there evidence that the
Applicant’s identity as a passenger was made known. The Applicant failed to establish
that the Sri Lankan government would have any interest in him when they did not
before his departure: Canada (Citizenship and Immigration) v B380, 2012
FC 1334 at para 38.
[44]
The Board also reasonably found that the
Applicant faces only a generalized risk on return to Sri Lanka. The potential
risk that the Applicant might be perceived as wealthy and targeted for
extortion is a risk faced generally by the population: Ahmed v Canada
(Minister of Citizenship and Immigration), 2004 FC 808 at para 22; Vickram
v Canada (Citizenship and Immigration), 2007 FC 457 at para 14; Prophète
v Canada (Citizenship and Immigration), 2008 FC 331 at paras 16-17, aff’d
2009 FCA 31.
VIII.
ANALYSIS
[45]
This is a long and detailed Decision in which
the Board examined the Applicant’s allegations of past mistreatment and then
turned to forward-looking and sur place issues, taking into account the
Applicant’s profile and whether he would be someone of interest to the
authorities in Sri Lanka.
[46]
In my view, the Board makes significant errors
in dealing with the Applicant’s evidence of past experiences. The central issue
then is whether these errors are material to the forward-looking and sur
place analysis that takes up the latter part of the Decision.
[47]
With regards to the Applicant’s past
experiences, the Board reaches a general negative credibility finding based
upon cumulative inconsistencies and omissions between the POE notes, the original
PIF, the amended PIF, and testimony at the hearing. In addition, the Board was
unconvinced by the Applicant’s explanations concerning these problems and found
that he gave evolving testimony in order to cover his mistakes.
[48]
The Board was informed by a doctor’s letter that
the Applicant “suffers from memory impairment”
and some of the incidents referred to took place a number of years ago. Hence,
a medical diagnosis of memory impairment could have gone a long way to
explaining many of the omissions and inconsistencies identified and discussed
by the Board. However, the Board discounted the medical evidence of memory
impairment so that it was effectively left out of account when the Board
addressed the other evidence and the Applicant’s explanations for the
discrepancies. In my view, the doctor’s letter was improperly and unreasonably
discounted by the Board. I say this for a number of reasons.
[49]
At paragraphs 28 and 31 of the Decision, the
Board has to following to say regarding the doctor’s letter (CTR at 9-10):
[28] However, I find it is of little
value, as it does not state whether this is a conclusion reached by the
physician based upon simple assertions from the claimant, or whether there was
any objective investigation to justify such a bold statement. Furthermore, even
if I were to give it much weight, it only suggests that any memory problems
probably arose after he was diagnosed with serious illness, and because
of the shock of such a diagnosis. No other explanation is offered.
[…]
[31] I find that the diagnosis of
memory problems has limited evidentiary value, as it is unstated whether this
is based on one interview or more, when the claimant was interviewed, whether
he was interviewed in English or Tamil, the length of time spent with the
claimant and whether any interpreter was present or the physician spoke Tamil.
The statement of memory problems may be no more than self-reporting of the claimant’s
situation and symptoms.
[Emphasis in original]
[50]
The doctor’s letter may be based upon
self-reporting, but there was no evidence before the Board that it was; hence
the Board’s conclusions here are speculative. It would have been a simple
matter for the Board to ask the Applicant how his impaired memory diagnosis was
arrived at, or the Board could simply have mentioned its concerns and given the
Applicant an opportunity to explain. The Board did neither, and then speculated
that the doctor’s letter could have been based upon self-diagnosis. Bearing in
mind the significance of a diagnosis of “memory impairment”
for the kinds of detailed questions put to the Applicant as to what happened
when and where some time ago, and the Applicant’s explanation in his own
testimony that he had always had memory problems (and this is why he provided a
medical diagnosis), the Board had an obligation, in my view, to raise its concerns
over the doctor’s letter rather than saying nothing and then making a
significant point of rejecting the letter in the Decision. See Karadag v
Canada (Citizenship and Immigration), 2015 FC 353 at para 4; Angulo v
Canada (Citizenship and Immigration), 2014 FC 1131 at para 36; Rukmangathan
v Canada (Minister of Citizenship and Immigration), 2004 FC 284 at paras
32- 42.
[51]
In paragraph 30 of the Decision, the Board makes
the following reasonable point (CTR at 10):
The prescription pad note therefore suggests
memory problems which “probably” arose after the May 2012 medical consultation.
It does not directly account for such prior problems as are evident when one
compares the original PIF narrative from November 2010 with any CBSA interview
notes from that autumn, or with the CIC Claim form dated September 27, 2010.
[Footnotes omitted]
[52]
I see no problem with this observation, but it
has to be borne in mind that the general negative credibility finding is
cumulative and, as the Decision reveals, a great deal was made of discrepancies
between the POE notes and the oral testimony and the two PIFs and the oral
testimony. And it is the Board’s failure to take the medical diagnosis into
account when assessing oral testimony that is the problem.
[53]
Instead of asking for an explanation regarding
how the diagnosis was arrived at and addressing it objectively, the Board then
goes on to appoint itself as an expert on memory loss (CTR at 10-11):
[32] At the oral hearing, Counsel for
the claimant asked him when he first started having any memory problems, and he
replied that he had some after his arrest in Negombo, but then had experienced
more problems after chemotherapy in this country.
[33] However, I did not discern that
his ability to give testimony was indicative of memory problems. For example,
towards the end of my questions to him I asked the claimant to explain his
current fear in Sri Lanka. In response he said that there were, “five issues.”
He then said that:
1. The Sri Lankan government had said that all those on the ship
belonged to the LTTE
2. Twice he had been arrested on suspicion
of LTTE links
3. One person from the ship had returned to Sri Lanka, he was then in and no one knows how he died. This person was named “SATHI.”
4. He read last week that the government of Sri Lanka was allocating large sums of money to the internal security forces.
5. The Prime Minister of Canada has refused to go to Sri Lanka because of the troubles.
[34] He then alleged that the person he
had named, Sathi, had been released through Red Cross intervention but then the
government had “set up this accident” in which he has killed. He said that
during curfew the government can do anything, so he was afraid, and they were
still searching for any members of the LTTE.
[35] I asked the claimant how it was
that despite the numerous other problems displayed in his oral testimony (as
are referred to below) he had been able to list these five points and repeat
them so coherently. He said that he had written them down and then read it over
and over.
[36] Clearly, such a demonstration
indicates to me that the claimant’s memory is not so impaired as to restrict
him when he takes the time to review what he wrote down. I note that such a
display of rote memorisation suggests that he does not have any actual
restrictions of memory, per se.
[Footnote omitted]
[54]
There was no objective evidence that someone
suffering from memory impairment regarding events that occurred some time ago
is incapable of recalling something he has recently written down and read over
and over. This is a very different matter from having to respond to questions
at a hearing for which no preparation is possible. It would require an expert
to speak to this issue and the Board’s comments here are no more than a
personal opinion on a medical issue. The Board is, once again, simply speculating.
[55]
The Board then caps off its analysis of the
doctor’s letter with the following (CTR at 11-12):
[37] In submissions, the claimants’ [sic]
counsel argued that the claimant’s medical problems “likely could have affected
his memory” for some time, even before his diagnosis. In my view this is no
more than speculation, and I am unable to give it any weight.
[38] Because of my finding that the
claimant is not credible in certain aspects of his claim, and because there is
no indication of the basis for the family physician’s report, I give it little
evidentiary weight. As well, I note that the prescription pad note was only
dated six days before the scheduled hearing.
[39] I find, on a balance of
probabilities, that the claimant only went to the family physician for the
purpose of the refugee claim, and not because he needed any medical assistance,
because otherwise the claimant would have sought help well before this date. He
has been in Canada since August 2010.
[56]
There is, in fact, nothing suspicious about the
Applicant going to a doctor for evidence of his memory problems with the
hearing in mind. If he had merely asserted memory problems without the doctor’s
letter, the Board would simply have found that he had failed to provide
qualified, objective evidence in a context where it would reasonably be
expected. If someone anticipates that their memory may well let them down on a
crucial occasion when their whole future is to be decided, it would be foolish
not to acquire and produce as evidence medical confirmation of their problems. The
Board’s inference that this was only done to bolster the refugee claim is pure
speculation. Unless the Applicant had confronted a similarly crucial situation
in the past (and the Board does not explore this), then there would be no
reason for the Applicant to have acquired medical evidence of his memory
impairment problems before this.
[57]
The Board did not have to accept the doctor’s
letter as evidence of memory impairment that would affect the Applicant’s
testimony and explain the discrepancies the Board relied on for a general
negative credibility finding. But the Board cannot speculate, and it must
provide some kind of real basis for rejecting the letter. See Ukleina v
Canada (Citizenship and Immigration), 2009 FC 1292; K.K. v Canada
(Citizenship and Immigration), 2014 FC 78 at paras 60-61. It would have
been a simple matter to find out how the diagnosis was made, or to alert the
Applicant to the problem and allow him to address it. Instead we have a finding
that is both unreasonably speculative and procedurally unfair.
[58]
The issue of the Applicant’s possible memory
impairment comes up at various important points in the Decision. This is
because the Board goes to considerable pains to probe the Applicant on the
details of past events and then draws a negative inference each time
inconsistencies arise, inconsistencies that could well be the result of memory
impairment. Memory impairment could also account for what the Board sees as the
Applicant’s “evolving” evidence as he struggled
to explain inconsistencies in his testimony, and between his testimony and his
PIFs or the POE notes. It also significantly comes into play when the Board
deals with the letter from the Applicant’s mother which the Board discounts
because it is based upon what the Applicant has told his mother and the Applicant
has been found not to be credible. That letter is also discounted for what it
does not say, which is another reviewable error. See Mahmud, above, at
para 11; Arslan v Canada (Citizenship and Immigration), 2013 FC 252 at
para 88; Durrani v Canada (Citizenship and Immigration), 2014 FC 167 at
para 7. The doctor’s letter also comes into play when the Board discusses the
interaction with the agent who got the Applicant out of Sri Lanka. The Board
actually concedes the following: “Although the claimant
was not asked further about the smuggler, given the numerous and cumulative
credibility concerns noted above, it is my view that his written narrative
speaks for itself” (CTR at 24).
[59]
So the doctor’s letter was very important for
this Decision, at least as regards past events. The issue for the Court is
whether it also infects the Board’s forward-looking analysis and the sur
place findings.
[60]
Generally speaking, the Board concludes that
there is no forward-looking risk and no sur place claim because the
Applicant does not have the profile of someone who would be picked up by the
Sri Lankan authorities and subjected to mistreatment upon his return. At least
part of the reason for this conclusion is the Board’s finding that, based upon
the Applicant’s unconvincing account of past events, the Sri Lanka authorities
had no interest in the Applicant when he left the country (CTR at 26):
[114] The panel finds, on a balance of
probabilities, that the claimant is not credible regarding the key and pivotal
elements of his claim. As a result, the panel gives no probative value to the
allegations made regarding the pursuit and potential persecution by authorities
should he return Sri Lanka [sic], or his fear of return to Sri Lanka because the authorities would pursue, arrest or persecute him. With regard to the
issues discussed above, no credible evidence was adduced that would
substantiate such a fear.
[61]
It is not possible to say whether the Board
would have reached a different conclusion without its erroneous treatment of
the doctor’s letter. The Board may have found the Applicant to be a credible
witness and accepted his account of past events. This may have changed the
Applicant’s profile and convinced the Board that the Applicant would be at risk
upon return. In other words, the unreasonable and unfair handling of the “memory impairment” issue infects the whole Decision.
The Court cannot say whether the Applicant had a profile that placed him at
risk. This is a matter for the Board to decide. See Khosa, above, at
para 59. Consequently, this matter must be returned for reconsideration
[62]
Counsel agree there is no question for
certification and the Court concurs.
Email this Content