Date: 19990512
Docket: IMM-4538-98
BETWEEN:
SASITHARAN VIJAYARAJAH
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of the decision of the Convention Refugee Determination Division (CRDD), wherein the Applicant was found not to be a Convention refugee.
[2] The Applicant is a young male Tamil citizen of Sri Lanka. He claims to have a well-founded fear of persecution as a member of a particular social group.
[3] In his PIF, he states that he was detained and tortured on four occasions. He was pressured by the CID, the IPKF, the EPRLF and the LTTE.
[4] The first time he was detained was "on suspicion". He was beaten and abused by the IPKF and the EPRLF and released after about 3 months.
[5] The second detention was in 1992, in Colombo, by the CID. He was detained for one and a half years and severely tortured. He alleges he was beaten, burned and his toenails removed, in addition to other horrendous experiences. He was finally released after signing a document, in Sinhalese, attesting to the fact that he was a member of LTTE and requiring him to report to the CID offices every day for two months and every other day in the third month.
[6] He testified that upon his release, the CID sent him to the hospital to have his injuries treated and to correct his eye problems. He also received a document from the Magistrate Court which states that there were "No complaints against the suspects. So they were released".1
[7] In June 1995, he was again taken into custody "on suspicion", along with many other Tamils, this time by the Kotahena Police. He was kept for 7 days and beaten. He was shown photographs and asked to identify other Tamils who were suspected LTTE members. He was released, on condition he bring information about LTTE and was told that the next time he was rounded up he would be shot.
[8] In March 1997, he was again detained and beaten by the Sri Lankan forces, "on suspicion of militancy". He was photographed and ordered to pay money. He was released after 3 days.
[9] He left Sri Lanka on May 18, 1997 and declared refugee status upon his arrival in Canada.
[10] In light of the inconsistencies and discrepancies between his PIF and his testimony, the panel did not believe the Applicant"s fear of persecution was genuine.
[11] The Applicant submits that the Board continually interrupted him and his counsel, preventing him from telling his story and preventing his counsel from asking questions. He argues that he was thereby denied his right to be heard and his right to counsel.
[12] This argument clearly fails. Pursuant to s. 67(2) of the Immigration Act2, Board members are entitled to examine any person under oath, even at length, in order to evaluate the credibility and trustworthiness of the evidence and to render a well informed decision. In particular, Joyal J., in Teja Singh, stated that the Board has a duty to determine the credibility of the claimant.
| In this respect, I beg to disagree with counsel for the applicant's argument in his written brief that the process of the hearing is adversarial and that the adjudicator's conduct was tantamount to exercising the role of both prosecutor and jury. These proceedings are not adversarial. If these were, then where is the case to be made for the other side? Credibility hearings, as well as Refugee Board hearings, are seized of the testimony of the claimant alone and if the panel's role is to make a finding on his credibility, it is the panel's prerogative to decide how summarily or how deeply it must intervene in order that it may properly decide the case one way or the other. To suggest that the members' role is simply to sit as benign and passive pashas is to pull the rug from under the decision-making process and to abort the institutional responsibilities which they are obliged to carry out. 3 |
[13] The Applicant also alleges that the panel ignored relevant documentary evidence, including the medical report and the photographs which support his story. I agree with the Applicant. The Board ignored credible evidence, more particularly, an original document from the Columbo Magistrate Court, which clearly indicates that the Applicant was detained and subsequently released. The Board chose to focus on why he did not show the document to the police to avoid arrest. It totally disregarded the significance of the document in providing convincing evidence of his detention. Thus, the Board failed to take into account material evidence before it.
[14] The Applicant also submitted photographs of the scars on his body, along with a medical report which confirms that he bears both physical and psychological scars, consistent with the torture he described.
[15] As a result of having found the Applicant not credible the Board gave little weight to the medical evidence. In it"s decision, the Board mistakenly referred to Dr. Dongier"s report as a "psychological report." Although the report does contain a psychological assessment, it also details the numerous physical scars on the Applicant"s body. These scars, which include the deformation of his toenails, cigarette burns to his arms, scars on his legs and feet from being beaten with batons, as well as various cuts and stab wounds4, are also shown in the photographs submitted by the Applicant. The Board failed to mention these photographs in its decision and did not discuss Dr. Dongier"s physical assessment of the Applicant, which substantiates the photographs.
[16] In my opinion, the Magistrate document, the medical evidence and the photographs are highly pertinent and should have been considered by the Board. As stated by the Federal Court of Appeal in Mahanandan5, where there is documentary evidence which could influence the Board"s assessment of a file, that evidence must be dealt with in its reasons. I agree with my colleague Evans J., who stated in Cepeda-Gutierrez : "the agency"s burden of explanation increases with the relevance of the evidence in question to the disputed facts."6
[17] In the case before me, the Board did not acknowledge the presence of the physical scars nor did it state that it rejected the Applicant"s account of how they occurred. It simply found him not credible. In my opinion, this physical documentation goes directly to the issue of his credibility and the Board had an obligation to expressly consider it.
[18] If the Board finds a claimant not credible, it may also find that there is no credible evidence upon which to base the claim, provided the only evidence before the Board is that emanating from the claimant"s testimony.7 However, as I stated in Seevaratnam v. M.C.I.8, where there is relevant evidence, that does not emanate from the claimant"s testimony and that can link the claimant to the persecution, the Board must consider it. This was not done in the present case.
[19] Finally, the Board should have given appropriate weight to the documentary evidence. In particular, Dr. Donald Payne, in a document entitled "Psychological Problems of Torture Victims in Refugee Interviews and Hearings", published by the Canadian Centre for Victims of Torture, states that torture victims will have considerable problems at refugee hearings.
| It is my opinion that, because of psychological disturbances as a result of torture, it is unrealistic to expect that all refugee claimants will be able to make a full statement of their situation on arriving in Canada. Torture victims will tend to minimize their experiences due to the distress caused by recalling and talking about them, will have difficulty completely trusting the Canadian authorities and may say contradictory things as a result of their confusion or desire to say what they believe will lead to the security of them being allowed to remain in Canada.9 |
[20] In summary, the Board"s conclusion is based on unsound reasoning. It found the Applicant not credible due to inconsistencies in his testimony, then relied on this negative credibility finding to dismiss medical and documentary evidence, which explains that torture victims may contradict themselves as a result of the confusion caused by their experiences.10
[21] For these reasons, the application for judicial review is allowed and the matter is referred back for rehearing by a differently constituted panel.
[22] There is no question of general importance which would require certification.
"Danièle Tremblay-Lamer"
JUDGE
OTTAWA, ONTARIO
May 12, 1999.
__________________1 Application Record at 51-52.
2 67 (2) The Refugee Division, and each member thereof, has all the powers and authority of a commissioner appointed under Part I of the Inquiries Act and, without restricting the generality of the foregoing, may, for the purposes of a hearing,
(a) issue a summons to any person requiring that person to appear at the time and place mentioned therein to testify with respect to all matters within that person's knowledge relative to the subject-matter of the hearing and to bring and produce any document, book or paper that the person has or controls relative to that subject-matter;
(b) administer oaths and examine any person on oath;
(c) issue commissions or requests to take evidence in Canada; and
(d) do any other thing necessary to provide a full and proper hearing. R.S., 1985, c. I-2, s. 67; R.S., 1985, c. 28 (4th Supp.), s. 18.
3 Teja Singh v. M.E.I. (10 January 1994), 92-T-1537 (F.C.T.D.) at para 13.
4 Letter of Dr. Pierre Dongier to Me. Sarah Piven (2 March 1998), Applicant"s Record at 53-54.
5 Mahanandan v. Canada (M.E.I.) (24 August 1994), A-608-91 (F.C.A.).
6 Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (October 6, 1998), IMM-596-98 at para 17 (F.C.T.D.).
7 Sheikh v. M.E.I., [1990] 3 F.C. 238 (F.C.A.).
8 Sukunamari Seevaratnam et al. v. M.C.I. (11 May 1999), IMM-3728-98 (F.C.T.D.).
9 D.E. Payne, "Psychological Problems of Torture Victims in Refugee Interviews and Hearings" (Toronto: C.C.V.T., 27 March 1989), Tribunal Record at 295 [emphasis added].
10 Zapata v. Canada (Solicitor General) (1994), 82 F.T.R. 34 (F.C.T.D.).