Date: 20050610
Docket: IMM-2587-04
Ottawa, Ontario, this 10th day of June, 2005
Present: The Honourable Mr. Justice Mosley
BETWEEN:
BURIM DEMI AND SOFIJA DEMI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The applicants are a couple from the former Yugoslavia. Mrs. Demi's ethnicity is Albanian, but she grew up in Serbia and her primary language is Serbian. Mr. Demi is a Kosovar Albanian. He speaks some Serbian with his wife, but his mother tongue is Albanian. They seek judicial review of a decision of the Immigration and Refugee Protection Board, Refugee Protection Division, dated February 26, 2004, that found that neither was a Convention refugee nor a person in need of protection.
[2] Mr. and Mrs. Demi met in1998 in Pristina, Kosovo while Mrs. Demi was visiting a relative. War broke out in Kosovo in March 1999. However, the couple remained in touch and began cohabiting in Pristina in July 2000. In December 2000, Mrs. Demi became pregnant, and they married in February 2001. They left Kosovo for Canada in July 2001 and now have two Canadian-born children.
[3] Mr. Demi alleges that he fears persecution in Serbia because he was a deserter from the Serbian army. He claims he did not want to fight in the war between Serbia and Croatia. He also states that he was arrested and imprisoned by the Serbian army for four months for desertion. He is also suspected by the Serbs of supporting the Kosovo Liberation Army and was detained for that in 1998. Mr. Demi alleges that he fears persecution in Kosovo because he did not agree to go fight with the Albanian rebels in Macedonia in 2001.
[4] Mrs. Demi alleges that she fears persecution in Kosovo because she is perceived as a Muslim Serb. She claims particular risk from her husband's family, who never accepted her, and from the people who tried to recruit her husband to fight in Macedonia. She does not claim to fear persecution in Serbia.
[5] The Board found that neither claimant was credible. He did not believe that Mr. Demi deserted the army because he did not want to fight in the war with Croatia, or that he was punished for desertion, and even if he was, the Board found that the general amnesty in the former Yugoslavia would protect him from further prosecution. The Board also did not believe that Albanian rebels attempted to recruit Mr. Demi because of significant inconsistencies between his PIF and oral evidence and with his wife's testimony.
[6] Psychiatric reports were tendered with respect to both claimants diagnosing post-traumatic stress disorder arising from the events that occurred in their country of origin. With respect to Mr. Demi's psychiatrist's report, the Board, having rejected the facts upon which it was based (though without rejecting the diagnosis of PTSD) gave it little weight. The Board relied on R. v. Lavallee, [1990] 1 SCR 852 for the proposition that without independent proof of the applicant's testimony, limited weight should be given to the report. The Board did not address the psychiatric report tendered for Mrs. Demi.
[7] The Board found that it was not plausible that Mrs. Demi has Albanian parents but speaks no Albanian. The Board also found it implausible that, being of Albanian descent, she would be persecuted by her husband's family for being Serb, in a large city like Pristina.
[8] The Board also found that the applicants did not have an objectively well-founded fear of persecution because there are now places where Albanians can and do live safely, including Novi Sad and Prosovo.
ISSUES
[9] 1. Did the Board err in its assessment of credibility because of its failure to give sufficient weight to Mr. Demi's psychiatric report?
2. Did the Board err in failing to consider Mrs. Demi's psychiatric report or in its assessment of her credibility?
3. Did the Board err in its assessment of objectively well-founded fear of persecution?
ARGUMENT & ANALYSIS
1. Credibility and Mr. Demi's psychiatric report
[10] The applicants submit that the Board's dismissal of the psychiatric report on Mr. Demi's post-traumatic stress disorder (PTSD) amounted to an error of law because of the failure to consider the ramifications of the report. The applicants submit that Mr. Demi's inconsistencies and behaviour complained of by the Board are consistent with a diagnosis of PTSD: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration) (1998), 157 F.T.R. 35 (T.D.); Reyes v. Canada (Minister of Employment and Immigration) [1993] F.C.J. No. 282 (C.A.).
[11] Reliance upon Lavallee was an error of law, the applicants argue, because in criminal law matters a much higher evidentiary threshold is necessary. In the refugee context, the tendency is to relax evidentiary rules and strict corroboration was not necessary.
[12] The respondent submits that the Board's findings were reasonably open to it on the evidence. It is clear on the face of the decision that the Board considered the medical report but discounted it as based entirely upon the claimant's narrative of his history. Opinion evidence is only as valid as the truth of the facts upon which it is based: Navaratnam v. Canada (Minister of Citizenship and Immigration) 2003 FCT 523; Danailov v. Canada (Minister of Employment and Immigration [1993] F.C.J. No. 1019 (T.D.); Chukwuka v. Canada (Minister of Citizenship and Immigration) 2002 FCT 532.
[13] The respondent submits that the credibility findings regarding Mr. Demi were reasonably open to the Board. The applicants raised the Lavallee decision, so the Board cannot be faulted for considering it. If the Board did not believe the triggering event occurred, it was open to the Board to given little weight to a PTSD diagnosis based on that event.
[14] The Board did not dispute the doctor's diagnosis. Did it thus err in failing to consider whether the PTSD might have caused the inconsistencies in Mr. Demi's story that it based its credibility findings upon? In Reyes, the Federal Court of Appeal found:
There was considerable expert evidence as to post traumatic stress syndrome and as to the Applicant's present condition. The problems which the tribunal identified with the Applicant's testimony and behaviour were by no means inconsistent with the manifestations of the syndrome described in that evidence.
There was no evidence in this doctor's report or elsewhere in the applicant's materials, as there was in Reyes, that the PTSD in this particular case was causing symptoms of confusion or might lead to inconsistencies in testimony. A diagnosis of PTSD, without more, need not lead to the inference that the claimant will be unable to testify coherently.
[15] The passage in Lavallee relied upon by the Board stands for the principle that opinion evidence is only as good as the facts upon which it is based. In this case, the psychiatrist took the facts as they were given to him by the applicants and arrived at a diagnosis based on his professional assessment of the effects those facts would have on the individuals before him. There is nothing in Mr. Demi's report that would explain the inconsistencies in his testimony. Indeed, there is a specific finding that "he does not seem to be in any great distress in the interview situation." It was not an error to rely upon Lavallee in the circumstances.
[16] Accordingly, I would not find that the Board erred in its assessment of Mr. Demi's credibility by reason of the lack of weight it afforded the psychiatric report.
2. Mrs. Demi's psychiatric report and her credibility
[17] As noted above, the Board makes no mention of the psychiatrist's report dealing with Mrs. Demi. The applicants submit that the Board was required to acknowledge and deal with the report and failure to do so is a reviewable error: Celic v. Canada (Minister of Citizenship and Immigration) 2003 FC 826 at paras. 19-20; Singh v. Canada (Minister of Citizenship and Immigration) [1995] F.C.J. No. 1674 (T.D.).
[18] In Celic at para. 19, Justice Gibson found, in referring to a psychiatric report:
Clearly, the evidence here cited appears squarely to contradict the CRDD's finding of fact or of mixed fact and law regarding whether the principal Applicant has in the past suffered persecution. While the CRDD might very well have summarily disposed of the evidence in question, given that it is based on self-reporting by the principal Applicant and might thus appear to be self serving, that is not a sufficient justification for apparently ignoring case-specific, relevant evidence.
[19] In Singh, Justice Simpson found at para. 4:
I have concluded that the Board committed a reviewable error in failing to refer to the Report. However, in the circumstances of this case, I am persuaded that the error was not material. I have no doubt that, had the Board referred to the Report, it would have dismissed it on the basis of the applicant's evasive behaviour at the hearing. The Board simply did not believe the underlying facts upon which the Report was based and would not have accepted the doctor's perception over its own on the issue of demeanour.
[20] I find that while it was a reviewable error to fail to refer to Mrs. Demi's psychiatric report, that error was not material and would not have had an effect on the outcome of her claim. The two reports were prepared a few days apart. The psychiatrist notes that he was familiar with the couple's story and background from his meeting with Mr. Demi, for which Mrs. Demi translated. Both recounted similar accounts of nightmares and anxiety resulting from the events in Kosovo. The diagnosis was the same. The Board's assessment of the weight to be given the husband's psychiatric report applied equally to that prepared for Mrs. Demi.
[21] A portion of the transcript of Mrs Demi's evidence at the Board's hearing was not available as the tape failed to record. It is not clear how much of her evidence was not transcribed. Counsel argues that Mrs. Demi is denied procedural fairness as it will be impossible for the court to determine whether the Board's plausibility and credibility findings with respect to her evidence are patently unreasonable without the transcript.
[22] The respondent argues that the lack of a full transcript of Mrs. Demi's evidence is not material as she based her claim on that of her husband and the full transcript of his evidence is available. Mrs. Demi's evidence from the hearing is substantially reproduced in the applicants' record and the respondent does not take issue with the accuracy of that informal transcription.
[23] The failure to produce a tape recording or a transcript of a hearing does not in itself constitute a breach of the duty of fairness. It must be shown that the absence of the tape or transcript effectively denied a party a right of judicial review by preventing the reviewing body from discharging its statutory function: Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793; Donnelly v. Canada (Attorney General) (2000), 261 N.R. 388 at para. 10 (F.C.A.). Canada (Attorney General) v. Valladolid [2004] F.C.J. No. 601, 2004 FCA 142.
[24] I am satisfied that there is no prejudice to Mrs. Demi because of the lack of a full transcript of her evidence before the Board. The credibility of her claim rested for the most part on that of her husband. There was sufficient evidence before me to determine whether the separate implausibility finding the Board made with respect to Mrs. Demi's claim to have been persecuted in Kosovo by reason of having been raised in Serbia and speaking that language was patently unreasonable and thereby a reviewable error. While I might not have arrived at the same conclusion, I do not find it to have been patently unreasonable.
3. Objective fear
[25] The applicants submit that there were documents contradicting the conclusions of the Board that it failed to consider. Thus, its decision is seriously weakened. The opinion can only be regarded as arbitrary and reached without regard to the evidence: Lahpai v. Canada (Minister of Citizenship and Immigration) 2001 FCT 88; Gebreab v. Canada (Minister of Citizenship and Immigration) 2002 FCT 679; Bains, supra; Oyarzo Marchant v. Canada (Minister of Employment and Immigration), [1982] 2 F.C. 779 (F.C.A.).
[26] The applicant submits that the Board preferred outdated documentary evidence to recent evidence (an Economist article "Fag-ends or freedom fighters?") that predicts pending destabilisation in the region, and contradicts the more optimistic finding of the Board. The respondent submits that it was open to the Board to consider the documentary evidence and prefer certain evidence.
[27] Having reviewed the documentary evidence closely, I see no reason to interfere with the Board's findings. The Economist article indicates that the risk of destabilisation in the region was due to criminal elements attempting to protect their cigarette smuggling activities, not the former combatants from whom the applicants feared persecution. There was nothing in the article to suggest they would be at any greater risk of harm if they were to return. Nor does it directly contradict any of the Board's findings with regard to country conditions.
[28] Accordingly, I will dismiss the application. No question of general importance was proposed and none will be certified.
ORDER
THIS COURT ORDERS that the application is dismissed. No question is certified.
" Richard G. Mosley "
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-2587-04
STYLE OF CAUSE: BURIM DEMI AND SOFIJA DEMI
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: May 24, 2005
REASONS FOR
ORDER AND ORDER : The Honourable Mr. Justice Mosley
DATED: June 10, 2005
APPEARANCES:
Omar Shabbir Khan FOR THE APPLICANTS
Ms. Kareena R. Wilding FOR THE RESPONDENT
SOLICITORS OF RECORD:
OMAR SHABBIR KHAN FOR THE APPLICANTS
Khan Hameed, In Association
Barristers and Solicitors
Hamilton, Ontario
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario