Date: 20010216
Docket: IMM-1620-00
Neutral Citation: 2001 FCT 88
BETWEEN:
AUNG GAM LAHPAI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
DUBÉ J.:
[1] This application is for the judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board"), dated March 1, 2000, wherein the Board found that the applicant was not a Convention refugee.
1. Facts
[2] The applicant, a citizen of Myanmar, of Kachin ethnicity, is a former student claiming to have taken part in a demonstration in 1988. The Board held that "major aspects of the claimant's testimony are not trustworthy and, therefore, are not credible". It found that the oral account of his involvement in the student unrest of 1988 was "marked by contradictory and confusing statements". It saw contradictions in the duration and location of his hiding. It found it contradictory that he "was supposed to be gripped with fear of being arrested" and yet used public transportation twice a week for two months. It noted that the claimant "testified further that he was not really sure that the military were detaining, interrogating or even shooting students after the siege". Thus, the Board concluded that the claimant was not in hiding after September 18, 1988.
[3] The Board was of the view that the claimant was never actively involved with the student union and its activities, including the unrest. Having analyzed the oral evidence of the applicant and compared it with his PIF narrative, the Board also concluded that the claimant's fear of persecution was not well founded: if he returned to Myanmar, he would not be perceived by the authorities as possessing "a political opinion that would make him the target of persecution". It noted that the claimant was able to obtain a Myanmar passport, leave the country with absolutely no problem, and in fact renewed his passport when in the U.S.A.
2. The Applicant's Submissions
[4] The applicant attacks the decision of the Board mostly on the ground that it erred in law by ignoring documentary evidence consisting in four letters: from Gerald M. Devins, Consulting and Clinical Psychologist, describing the mental condition of the applicant; from Jenna B. McCarley to one Lloyd Jones to the effect that the applicant's uncle was very involved in the Myanmar Government; from Saboi Jum, the uncle, to Bob and Jenna McCarley, to the effect that the applicant was active in the student demonstration; and a certificate from the Pan Kachin Development Society to the effect that the applicant was a member of that Society and "took part in 1988 Democratic Movement in Rangoon BURMA".
[5] The psychologist's letter was briefly discussed at the hearing, the other three letters were referred to by the Refugee Claim Officer. There was no reference whatsoever to any of the four documents in the decision of the Board.
[6] The hearing was held on June 16, 1999, and the decision of the Board was only released on March 1, 2000.
3. Relevant Jurisprudence
[7] In Bains v. Canada (Minister of Employment and Immigration)1, Cullen J. dealt with three pieces of documentary evidence introduced by the applicant namely a doctor's certificate, a letter from the applicant's wife and a letter from the President of the Punjab Human Rights Organization. The Refugee Division had made no mention of these documents in its decision. Cullen J. held that the Refugee Division erred in law when it failed to advise whether it accepted or rejected the three documents. He said as follows (at p. 4):
| ... The Refugee Division, in my view, is obligated, at the very least, to comment on the information. If the documentation is accepted or rejected the applicant should be advised of the reasons why, especially as the documentation supports the applicant's position. |
[8] In Vasudevan v. Canada (Secretary of State)2, Gibson J. considered a paper dated December 1992 prepared by the Research Directorate, Documentation, Information and Research Branch of the Immigration and Refugee Board entitled Sri Lanka: Internal Flight Alternatives and noted that the CRDD did not refer to this evidence in its decision. Counsel for the respondent relied on Woolaston v. Min. of M. & I.3, a decision of the Supreme Court of Canada, wherein Mr. Justice Laskin said as follows (at pp. 107-108):
| ... She gave evidence before the Board, and her counsel referred to the transcript of the special inquiry in the course of her examination, but without mentioning the portion of the evidence upon which reliance is now placed. She herself did not return to this evidence in testifying before the Board. |
| I am unable to conclude that the Board ignored that evidence and thereby committed an error of law to be redressed in this Court. The fact that it was not mentioned in the Board's reasons is not fatal to its decision. It was in the record to be weighed as to its reliability and cogency along with the other evidence in the case, and it was open to the Board to discount it or to disbelieve it. |
[9] Gibson J. distinguished the facts in that case from those under consideration in the review before him and said as follows (at p. 4):
| Thus, the paragraph from the documentary evidence quoted above, unlike in Woolaston, was specifically referred to in the hearing before the CRDD. Further, counsel for the Applicant indicated that it was "... a fairly central argument in this case". Despite this reality, the existence of this evidence is not acknowledged anywhere in the decision of the CRDD. The fact that it bears on a portion of the CRDD's analysis that is quoted above, and is not referred to therein, I am satisfied gives rise to a reasonable inference that it was ignored. By reference to the portion of the Woolaston decision quoted above, I conclude that this constituted an error of law. |
[10] In Sukunamari Seevaratnam and The Minister of Citizenship and Immigration4, Tremblay-Lamer J. said that in its assessment of the applicant's claim the Board should have considered her national identity card along with the other documentary evidence identifying the applicant as a young Tamil woman from the north of Sri Lanka. She said as follows (at p. 5):
| [11] In my opinion, the Board failed to consider all of the evidence before it and simply denied the Applicant's claim because it did not find her credible. In the circumstances of this case, there was still evidence remaining which could have affected the assessment of the claim. Therefore, this evidence should have been expressly assessed. |
[11] In Josephine Annamalar George and The Minister of Citizenship and Immigration5, Evans J. (then of the Trial Division) held that the Refugee Division "had taken note" of a psychiatric report submitted on behalf of the applicant and failed adequately to come to grips with the evidence contained in the psychiatric report. The judge concluded as follows (at p. 3):
| [6] In my opinion, the Refugee Division's reasons fail adequately to come to grips with the evidence contained in the psychiatric report. Thus, it is not clear whether the Refugee Division accepted the psychiatrist's prognosis, or whether it was discounted, in whole or in part, as based on the sexual assault, which the Refugee Division was not satisfied had occurred. |
[12] In Velauthapillai v. Canada (Solicitor General)6, Gibson J. was concerned with the evidence of a psychiatric condition not considered by the Tribunal in its credibility finding against the applicant. He concluded that (at p. 3):
| ... the CRDD committed a reviewable error in relying on these inconsistencies without providing any assurance that in so doing they had taken into account the applicant's mental illness and the possibility that it might have contributed to her inconsistent testimony. |
[13] On the other hand, in Chetram v. Canada (Minister of Employment and Immigration)7 the applicant argued that the Board failed to consider a letter from a Toronto physician submitted at the hearing but not referred to in the tribunal's decision. MacKay J. said as follows (at p. 3):
| 10 Two other items of evidence are said to have been ignored by the tribunal. The first, a letter from a Toronto physician, was submitted at the hearing. The fact that it is not referred to in the tribunal's decision is not a ground for concluding that it was not considered by the tribunal. The tribunal is under no obligation to identify every item of documentary evidence submitted or considered. In introducing the decision the tribunal notes that the evidence included documentary material filed by the claimant's counsel, and the letter from the physician is a part of the record of the tribunal. |
[14] In Gosal v. Canada (Minister of Citizenship and Immigration)8, Reed J. heard arguments from the applicant concerning the failure of the Board to refer to a psychiatrist's report that was placed in evidence and she commented as follows (at p. 3):
| 14 Counsel for the applicant argues that the Board erred because it made no reference to a psychiatrist's report that had been placed in evidence. I am not persuaded that in all instances the Board has to refer to the psychiatrist's report. It will depend on the quality of that evidence and the extent to which it is central to the applicant's claim. When such reports are nothing more than a recitation of the applicant's story, which the Board does not believe, and a conclusion based on symptoms, which the applicant has told the psychiatrist are being experienced, then, Boards cannot be faulted for treating such reports with some degree of scepticism. When they are based on independent and objective testing by a psychiatrist, then, they deserve more consideration. |
[15] One of the issues before Blais J. in Syed v. Canada (Minister of Citizenship and Immigration)9 was whether the Refugee Division erred in failing to mention in its decision the evidence presented by one Dr. Wynne. He referred to madame Justice Reed's decision in Gosal (above) and to a decision of the Federal Court of Appeal in Florea v. Canada (M.C.I.)10 to the effect that a presumption exists that all documentary evidence was taken into consideration by a Board in its decision. He quoted Hugessen J. as follows (at p. 3):
| The fact that the Division did not mention each and every one of the documents entered in evidence before it does not indicate that it did not take them into account: on the contrary, a tribunal is assumed to have weighed and considered all the evidence presented to it unless the contrary is shown. |
[16] He also referred to a decision of Evans J. in Cepeda-Gutierrez et al. v. Canada (Minister of Citizenship and Immigration)11 holding that the failure by the Panel to mention significant evidence presented could warrant the Court's interference. In his decision Evans J. said as follows (at p. 41):
| However, the more important the evidence that it not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Minister of Employment and Immigration (1993), 63 F.T.R. 312 (T.D.). In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact. |
4. The Psychologist's Letter
[17] In his letter Mr. Devins states that the applicant appears to be "vague and seemed inhibited". He also "confided feelings of loneliness in North America". The applicant described his mood as "numb" ("like a piece of wood"). Mr. Devins gave his impressions as follows:
| Mr. Lahpai was unwilling and/or unable to respond to many of the questions raised in this interview. It is possible that this was due to feeling of vulnerability and/or a lack of trust in the interviewer. It is also possible, however, that he was experiencing a significant psychopathological disturbance that interfered with his participation in the assessment. It would be desirable to seek an independent assessment of this possibility by someone with expertise in psychotic disorders. |
[18] The applicant did not seek a second assessment although the Refugee Claim Officer suggested that possibility at the hearing.
[19] In my view, the Board should have referred to that letter in its decision and explain why it rejected it. It raises a suspicion in the applicant's mind that, eight months after the hearing, the Board may have forgotten about it. Admittedly, the document itself carries little weight without a second assessment but it deserves at least a passing comment.
5. The Other Three Letters
[20] In my view, the other three letters read together are significant as they contradict the Board's assessment of the credibility of the applicant on the central issue. First, the McCarley letter is to the effect that her friend Rev. Saboi Jum, the applicant's uncle, was involved in negotiations with the Myanmar Government and the Kachin people and that he has risked his life many times to pursue these goals. The second letter from the uncle himself states that the applicant was studying in the Rangoon University in 1998 and was an eager participant in the demonstration in question. It also states that his nephew's life was in danger and he had to run away: "If he were to return to Myanmar at present, he would have great difficulties". Finally, the Pan Kachin Development Society's letter certified that the applicant is a member of that Society, took part in the 1988 Democratic Movement in Rangoon and fled the country when security forces started rounding up demonstrators.
6. Conclusions
[21] The Board is assumed to have considered all the documents placed before it and does not always have to refer specifically to them in its decision, but, when the evidence is omitted, not only from the decision, but from consideration at the hearing, and such evidence squarely contradicts the findings of the Board on a central issue, the latter must clearly refer to that material and state why it did not rely on it. Understandably, the Board may be sceptical about the evidential value of a psychologist's letter suggesting a second assessment, but in a decision released so long after the hearing, it would have been preferable to make at least a passing reference to it. More importantly, the failure to deal with the other three documents which flagrantly contradict the conclusions of the Board on the central issue of the applicant's involvement in the student unrest constitutes an error of law.
[22] In my view, there is no question of general importance to be certified.
7. Disposition
[23] Consequently, this application for judicial review is granted, the decision of the Immigration and Refugee Board dated March 1, 2000, is set aside and the matter is referred back to a differently constituted panel for re-hearing and re-determination of the refugee claim of the applicant.
OTTAWA, Ontario
February 16, 2001
Judge
__________________
1 F.C.T.D, 92-A-6905, May 26, 1993, corrigendum released June 21, 1993.
2 (F.C.T.D.), IMM-81-94, July 11, 1994.
3 [1973] S.C.R. 102">[1973] S.C.R. 102.
4 (F.C.T.D.), IMM-3728-98, May 11, 1999.
5 (F.C.T.D), IMM-2556-98, April 30, 1999.
6 [1994] F.C.J. No. 1740.
7 [1994] F.C.J. No. 297.
8 [1998] F.C.J. No. 346.
9 [2000] F.C.J. No. 597.
10 [1993] F.C.J. No. 598 (June 11, 1993), A-1307-91 (F.C.A.).
11 (1998), 157 F.T.R. 35.
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