Mylvaganam v. Canada

Counsel:
M. Berger, for the applicant.
M. Larouche, for the respondent.

1. GIBSON J. (Reasons for Order): These reasons arise out of an application for judicial review of a decision of a Convention Refugee Determination Division (the “CRDD”) of the Immigration and Refugee Board wherein the CRDD determined the applicant not to be a Convention refugee within the meaning assigned to that phrase in subsection 2(1) of the Immigration Act [See Note 1 below]. The decision of the CRDD is dated the 15th of June, 1999.Note 1: R.S.C. 1985, c. I-2.
2. The applicant is a young Tamil male from the north of Sri Lanka. He claims to fear persecution if he is required to return to Sri Lanka on the grounds of his perceived political opinion and by reason of his membership in a particular social group, namely, young Tamil males from the north of Sri Lanka who have in the past been targeted by both the Tamil Tigers and the Sri Lankan army.
3. In reasons for granting leave in connection with this application for judicial review, my colleague Mr. Justice Muldoon described the applicant’s background to the claim and commented on the CRDD’s treatment of certain of the evidence before it. He wrote:

4. The applicant, between 1989 and June 1998 was harassed and persecuted by both the insurgent Tamil Tigers and the Sri Lankan army and its allies. Through much of this time he was attempting to operate (with his wife’s help) a grocery store in the Jaffna peninsula.

   He was often – nay, it seems virtually constantly being arrested and severely assaulted and threatened by the contending parties – each side accusing him of aiding its enemy and threatening retribution. After his hearing by the CRDD, before it rendered its impugned decision on June 18[sic], 1999, the applicant was examined by a psychiatrist, Dr. Richard J. Stall, of St. Joseph’s Health Centre in Toronto. Dr. Stall’s diagnosis is not surprising, given the terrible plight in which the applicant found himself from 1989 to 1998 in Sri Lanka: posttraumatic stress disorder, “intense fear, terror and helplessness”, “re-experiencing the traumatic event” and memory loss under stress. Unfortunately, the CRDD simply negated the psychiatrist’s not unreasonable report and diagnosis, which constituted proper evidence before the CRDD.

   What my colleague failed to emphasize was that the examination of the applicant by the psychiatrist took place after the applicant’s hearing before the CRDD was completed and that, in its reasons for decision, the CRDD acknowledged the psychiatrist’s report and diagnosis but nonetheless found the applicant not to be credible. The CRDD wrote:

   At the end of the hearing, counsel of the claimant requested a week delay to submit a psychiatric report. This request was granted. A psychiatric report signed by Dr. R.J. Stall takes for granted the persecutory acts alleged by the claimant and finds that the latter suffers from a posttraumatic stress disorder. The panel believes that Dr. Stall’s corroboration of the persecutory acts is beyond his mandate. The panel does not dispute the expert’s finding that the claimant suffers from above mentioned stress disorder. The panel, however, gives no weight to this opinion as its foundation is in the assertions of a non-credible witness.

5. In essence, the CRDD accepts Dr. Stall’s diagnosis. It does not accept his implied conclusion that the source of the applicant’s post-traumatic stress disorder is the events of alleged persecution in the north of Sri Lanka. It does not accept that implied conclusion because, having considered the evidence before it including the testimony of the applicant, having observed the demeanour of the applicant while testifying and having had the opportunity to question the applicant regarding perceived difficulties in his testimony including contradictions, evasions and implausibilities, it simply did not believe the applicant’s story. Once again, impliedly at least, Dr. Stall attributes those difficulties that the CRDD perceived to the applicant’s post- traumatic stress disorder and the relationship of that disorder to the events comprising the applicant’s tale of persecution. The result is a circle of cause and effect from which there is no escape.
6. Counsel for the applicant urged that the CRDD erred in a reviewable manner in two respects: first, in failing to give adequate weight to the psychiatric report that was before it; and second, despite its finding in respect of credibility, in failing to analyse the objective basis to the applicant’s fear of returning to Sri Lanka as a young Tamil male from the north.
7. In Khawaja v. Canada (Minister of Citizenship and Immigration) [See Note 2 below], Mr. Justice Denault wrote at paragraph 8:

8. Note 2: [1999] F.C.J. No. 1213 (Q.L.)(F.C.T.D.).

   In my opinion the panel was wrong to conclude that the principal claimant was not credible without taking into account and without discussing the content of the psychological report which found severe post-traumatic stress disorder and the plaintiff’s difficulties relating the traumatizing events he had experienced, except for negatively arriving at the conclusion that these were facts he had not indicated in his personal information form.

   Counsel for the applicant urged that I should reach the same conclusion on the facts of this matter.

9. By contrast, Mr. Justice MacKay in Al-Kahtani v. Canada (Minister of Citizenship and Immigration) [See Note 3 below], wrote at paragraph 14:

10. Note 3: [1996] F.C.J. No. 335 (Q.L.)(F.C.T.D.).

    While I do not agree with the standard suggested by the respondent, that the tribunal’s decision must be found to be patently unreasonable, I am not persuaded that the tribunal’s determination of the weight to be given to the [psychiatric] report was unreasonable. But even if it were, at most the report supports the applicant’s difficulties with post-traumatic stress disorder, but not the particular facts that he alleges give rise to his claimed fear of persecution. In my opinion, that is the essence of the tribunal’s conclusion in relation to the report and that conclusion cannot be said to be unreasonable or in error in law.

11. With great respect, on the facts of this matter, I prefer the latter analysis. As in Al Kahtani, here the most the psychiatric report supports is the applicant’s difficulties with post-traumatic stress disorder. It does not support the particular facts that the applicant alleges give rise to his claimed fear of persecution. Once again as in Al Khatani, here the essence of the CRDD’s conclusion in relation to the psychiatric report is that it acknowledges the expert’s diagnosis but does not accept his implication as to the particular facts underlying the applicant’s difficulties with post-traumatic stress disorder. As did Mr. Justice MacKay, on the facts of this matter, I determined that here, the CRDD’s conclusion in this regard cannot be said to be unreasonable or in error in law.
12. In Seevaratnam v. Canada (Minister of Citizenship and Immigration) [See Note 4 below], Madame Justice Tremlay-Lamer wrote at paragraphs 11 and 13:

13. Note 4: [1999] F.C.J. No. 694 (Q.L.)(F.C.T.D.).

    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.
    …
    …The Board … did not address documentary evidence emanating from sources other than the Applicant’s testimony, which confirms the risks facing young Tamil women in Sri Lanka. On these facts, the Board’s conclusion that there was “no credible or trustworthy evidence” [presumably supporting the applicant’s claim] before it cannot stand.

14. The CRDD had before it substantial documentary evidence attesting to the difficulties that all young Tamil males, particularly those from the north, face in Sri Lanka. Even if it rejected outright, as it did, the applicant’s own alleged experience of persecution, in its analysis in support of its decision in this matter, it does not appear to have rejected the applicant’s identity as a young Tamil male from the north of Sri Lanka. Having accepted this identity, the CRDD then ignored the substantial evidence before it that a person such as this applicant might well be subjected to persecution if he were required to return to Sri Lanka and that therefore he might very well have had not only a subjective fear of persecution but also potentially a well-founded objective basis to that fear. In failing to so much as even consider this possibility, I am satisfied that the CRDD reached its decision in this matter without taking into account all of the evidence that was before it. In essence, it was so centered on its concern regarding the credibility of the applicant himself and the interrelationship of that concern with the psychiatric report that it had before it, that it would appear to have ignored all other evidence that was before it that could reasonably have been considered to be relevant to the applicant’s claim. In the result, on this ground, I am satisfied that the CRDD erred in a reviewable manner. On this ground alone, I conclude that this application for judicial review must be allowed and the decision of the CRDD set aside and the matter referred back for rehearing and redetermination.
15. Counsel for the respondent urged that, whatever the result on this application for judicial review, special reasons existed for an order of costs in favour of the respondent. Those alleged special reasons may be briefly summarized as follows: this application for judicial review was set down for hearing on the 11th of July, 2000, by order dated the 2nd of May, 2000. By application filed the 30th of June, 2000, the applicant sought an adjournment of the hearing of this matter, sine die, or in the alternative, to another date. The grounds for the application were that the applicant had high hopes that his wife’s application for landing from within Canada as a Convention refugee and in which he was included, would be successful and that to proceed with the hearing of this application at this time would result in financial hardship for him. That application was rejected.
16. The evening before this matter was scheduled for hearing, counsel for the applicant advised counsel for the respondent that this matter would be discontinued. When the matter was called before the Court on the 11th of July, counsel for the applicant acknowledged that instructions regarding discontinuance had not been formalized but that those instructions were expected to be received momentarily. In the result, the applicant got his earlier requested adjournment, but on terms. If a discontinuance were filed before 2:00 p.m. on the 13th of July, that would be the end of the matter except that there would be an order of costs in the amount of $500 in favour of the respondent. If a discontinuance were not filed, the matter would go ahead at 2:00 p.m. on the 13th of July. On the morning of the 13th of July, counsel for the applicant advised counsel for the respondent and the Court that the hearing of this application would go ahead.
17. I am satisfied that the manoeuvrings of the applicant to keep this matter alive but without bearing the expense of having counsel appear on his behalf at a hearing not only substantially inconvenienced counsel for the respondent but amounted to an abuse of the process of this Court. In the result, while the result on this application for judicial review is favourable to the applicant, there will be an order of costs fixed in the amount of $750, inclusive of disbursements, in favour of the respondent.
18. Neither counsel submitted a question for certification within the time provided. No question will be certified.

GIBSON J.