Date: 20020507
Docket: IMM-3230-01
Neutral citation: 2002 FCT 517
BETWEEN:
ABTHUL WAHID
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant seeks to set aside a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated May 17, 2001, whereby the applicant was found not to be a Convention refugee.
[2] The applicant, born on December 5, 1974, is a citizen of Sri Lanka. He claims to have a well founded fear of persecution by reason of imputed political opinions and membership in a particular social group, namely a Muslim associated with the Liberation Tigers of Tamil Eelam (the "LTTE"). The applicant left Sri Lanka on June 13, 2000, and arrived in Canada three days later, at which time he claimed refugee status. On May 17, 2001, the Board dismissed his refugee claim on the ground that he was not a credible witness.
[3] The first issue raised by the applicant is whether the Board applied the wrong test, as set out by the Federal Court of Appeal in Adjei v. MEI, [1989] 2 F.C. 680. In submitting that the Board applied the wrong test the applicant refers to the following passage in the Board's decision, which can be found at page 3:
The claimant is a Tamil Muslim from Eastern Sri Lanka. According to the general documentary evidence [ENDNOTE OMITTED] available on Tamil Muslims, the Sri Lankan authorities do not believe that Tamils from Eastern Sri Lanka are associated with the LTTE. Moreover, there is a safe internal flight alternative for Muslims from Eastern Sri Lanka, in Columbo.
Therefore, the burden squarely is on the claimant's shoulders to establish that he is what appears to be an exception to the rule. Under the circumstances, the panel does not believe that the claimant has provided credible evidence. [EMPHASIS ADDED]
[4] I am in complete agreement with the respondent that the above words do not constitute an attempt on the part of the Board to set out the relevant test. Rather, as I read the Board's reasons, the Board is simply addressing a particular issue, i.e. the fact that the documentary evidence for Sri Lanka showed that Tamils from Eastern Sri Lanka were not viewed by the authorities as "associated with the LTTE". Consequently, what the Board is saying in the passage above is that it was up to the applicant to convince it that he was a Tamil from Eastern Sri Lanka who was viewed by the authorities as being associated with the LTTE.
[5] I am, therefore, of the view that the Board did not err in regard to the applicable test.
[6] The second issue raised by the applicant concerns the Board's finding that he was not a credible witness, and in particular, in regard to his evidence that in March 2000, the lodge in Columbo where he was residing was raided by the police. The lodge was situated in the Maradana District, not far from the local police station.
[7] The applicant's testimony was that he and the other residents of the lodge were detained on March 10, 2000, and questioned at the police station. According to the applicant, the raid took place because a bomb had been set off in nearby Castle Street.
[8] Relying on the U.S. Department of State Country Reports on Human Rights Practices for the year 2000, the Board concluded that the applicant's story was not credible. According to the Country Reports, the LTTE on March 10, 2000, killed 30 civilians and injured 16 during rush hour in a Columbo suburb. The LTTE would have used mines, rocket-propelled grenades and automatic weapons in the course of its attack, destined for government ministers who were to travel on a certain street near Parliament.
[9] The Board noted that the incident reported in the Country Reports took place in a Columbo suburb, while the applicant indicated that the incident in respect of which he was arrested had occurred in Castle Street, Columbo.
[10] I agree with the respondent that when the applicant was confronted at the hearing (See pages 46 and 47 of the Transcript, Tribunal Record pages 293 and 294), he then tried to link the Castle Street bombing to "the Parliament". At pages 46 and 47, the following questions and answers appear:
Q. Do you know what exactly happened on March the 10th?
A. Yes, I know, the Castle Street bomb blast took place.
Q. Do you know how many people were killed?
A. I can't remember exactly.
Q. Because in the department of state report, okay, for on page 4 of 20, we have a reference that says, "On March the 10th, in an attack meant for government minister scheduled to travel along a certain route near parliament, the LTTE killed 30 civilians and injured 16 more with claymore mines, rocket propelled grenades, and automatic weapons during rush in a Columbo suburb". That doesn't seem to be the same even [...] that you're talking about though.
A. Yes, in Castle Street also they were the parliament.
[11] In concluding that that part of the applicant's story was not credible, the Board also made reference to an incident which occurred on March 6, 1998, in the Maradana District. In other words, according to the Board, the incident which, according to the applicant, resulted in his detention on March 10, 2000, a bomb blast in the Maradana District of Columbo, appears to have taken place in March 1998. At page 3 of its reasons, the Board states:
However, the claimant's evidence relates to a bombing in the Maradana District of Columbo. When confronted, the claimant attempted to alter his testimony to say that the bomb was on the road leading to Parliament. However, the panel is not satisfied.
Further, the panel finds other documentary evidence produced by the claimant himself - an article by TamilNet entitled "Arrests in Batticaloa Over Columbo Blast" March 6, 1998 [ENDNOTE OMITTED]. This article from 1998 states: "the Police say they have gathered evidence from the registration of the mini-bus which was used in the blast that several people from the Batticaloa district, including Muslims, have been involved in the Maradana bomb." However, the Maradana bombing occurred in March 1998, not March 2000.
Again, the claimant had no explanation. This casts serious doubt in the panel's mind on the truthfulness of the March 2000 arrest, which led to the claimant's decision to leave the country.
[12] In my view, the Board's conclusion that it was in doubt regarding the truthfulness of the applicant's March 2000 arrest is not unreasonable. On the contrary, given the evidence before the Board, that conclusion is, in my view, entirely reasonable.
[13] Another issue raised by the applicant concerns medical evidence given by Dr. A.L.M. Jameel, of Sri Lanka. On that point, at page 4 of its reasons, the Board writes:
In respect of the claimant's supporting evidence, the panel has doubts with respect to the authenticity of Exhibit P-6 [ENDNOTE OMITTED], a note from Dr. A.L.M. Jameel, Obstetrician and Gynaecologist dated August 3, 2000 which alleges the claimant was in his care on January 30, 1998 and March 18, 2000 following his detention and beatings.
When the claimant refers to having been taken to the hospital, it is clear from the letterhead that the doctor in question is an obstetrician and gynaecologist working out of the Central Nursing and Maternity Home. The panel therefore has doubts about the veracity of this exhibit.
[14] Exhibit P-6 is a letter allegedly sent by Dr. A.L.M. Jameel on August 3, 2000. According to the letter, Dr. Jameel would have seen the applicant twice, on January 30, 1998 and on March 18, 2000.
[15] The letter is on the heading of the CENTRAL NURSING AND MATERNITY HOME, located on Cassim Road, Kalmunai-6, Sri Lanka. On the letterhead of this letter, Dr. Jameel is described as a consultant obstetrician and gynaecologist. The letter indicates that Dr. Jameel saw the applicant for the following reasons:
This is to confirm that Abthul Wahid, has been admitted at our hospital with external and multiple internal injuries due to the baton shots, striking by some objects all over his body and on his left arm burned with piece of metal due to these, his body swollen every part including one side of his testicle and due to strike on his both heels by an object he affected stress on muscles, ligaments and tendons.
By these impact [sic] he has affected generalized weakness, post-traumatic stress disorder, sleep problems, Circadian rhythm disorders and panic disorder.
I issue this letter upon request of Mohammad Jaffar, who is uncle to Abthul Wahid.
[16] The Board had doubts as to whether the applicant had ever been treated by Dr. Jameel, since he was an obstetrician and gynaecologist working out of a nursing and maternity home. The Board did not believe that it was likely that the applicant, considering the nature of the injuries, would be treated at a nursing and maternity home by an obstetrician and gynaecologist.
[17] I cannot conclude, unfortunately for the applicant, that such a conclusion is unreasonable. I am not to be taken as suggesting that an obstetrician and gynaecologist could not have treated the applicant. Rather, I am simply stating that the Board's conclusion, on the evidence, is not one that I can characterize as being unreasonable.
[18] The next issue raised by the applicant concerns a report issued by Ms. Maria Haladyn-Dudek, psychologist. With respect to that report, the Board stated the following, at page 4 of its reasons:
Finally, with respect to the report of Dr. Maria Haladyn-Dudek [ENDNOTE OMITTED], her diagnosis of a post-traumatic stress syndrome relies entirely on the facts as presented by the claimant. Given the fact that the panel does not find the claimant a credible witness, the panel therefore puts little weight on the conclusions reached by Dr. Haladyn-Dudek as a result.
[19] In my view, the Board made no error in discounting this evidence. In Danailov v. M.E.I., Docket No. T-273-93 (F.C.T.D.), October 6, 1993, Madam Justice Reed made it clear that the weight to be given to expert opinion depended, in great part, on the acceptance on the part of the decision-maker of the facts underlying the opinion. This is how Madam Justice Reed put it, at paragraph 2 of her reasons:
[...] With respect to the assessment of the doctor's evidence, to find that that opinion evidence is only as valid as the truth of the facts on which it is based, is always a valid way of evaluating opinion evidence. If the panel does not believe the underlying facts it is entirely open to it to assess the opinion evidence as it did.
[20] The applicant also submits that the Board made a reviewable error when it failed to consider the reports of Dr. Ephraim Massey, of Montreal. Dr. Massey's evidence consists of two letters dated August 2 and November 16, 2000. The letters are reproduced at pages 180 and 179 of the Tribunal Record, and read as follows:
Aug. 3, 2000
I have seen and examined Mr. Wahid today. He states that in Sri Lanka in 1998 he was burned on the left arm with a hot piece of metal by the police. Then agin in March 2000 he was beaten on the heels with sticks and pipes by security forces. He was left with severe pain in the feet and difficulty walking. At this time he complains of persistent difficulty walking and recurring pain in the heels.
On physical examination today there is a 5 cm linear scar on the left forearm. There is tenderness on the heels of both feet and Mr. Wahid a shuffling type of gait.
The scar as described above is entirely consistent with the injury caused by trauma described by Mr. Wahid. In addition the tenderness of the heels and the discomfort on walking are consistent with the severe trauma to the feet as described by Mr. Wahid. I have prescribed for him a ten day course of Vioxx 12.5 Mg and have also recommended physiotherapy treatment.
***************
Nov. 16, 2000
I have seen and examined Mr. Wahid today. He continues to suffer from severe pain in the feet and heels. This problem is due to the injuries sustained when he was beaten with sticks and hard metal objects on the feet by police in Sri Lanka last year and again in March 2000. He was left with severe pain in the feet and difficulty walking.
On physical examination today there is tenderness on the heels of both feet and Mr. Wahid has a shuffling type of gait.
Xrays performed recently showed bilateral spurring of the heels, which is consistent with the the [sic] injuries caused by trauma with hard objects.
[21] As in the case of Dr. Haladyn-Dudek, it is clear that Dr. Massey's opinion is predicated upon the story which the applicant related to him. In my view, Dr. Massey's opinion cannot, per se, prove the truthfulness of the applicant's story. Dr. Massey's opinion proves satisfactorily, in my view, that the applicant did suffer the injuries seen by Dr. Massey. However, the true issue before the Board was not whether the applicant had been injured, but rather, what the cause of his injuries was. As the Board did not believe the applicant's story, and in particular, that he had been arrested and detained in 1998 and 2000, it follows, in my view, that the Board's decision to reject Dr. Haladyn-Dudek's and Dr. Massey's opinions is not unreasonable.
[22] I have, therefore, not been persuaded that the Board made any error which would allow me to intervene. As a result, this judicial review application shall be dismissed.
M. Nadon
JUDGE
O T T A W A, Ontario
May 7, 2002.
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-3230-01
STYLE OF CAUSE: ABTHUL WAHID v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION PLACE OF HEAR: MONTREAL, QUEBEC
DATE OF HEARING: MARCH 13, 2002
REASONS FOR ORDER OF THE HONOURABLE MR. JUSTICE NADON DATED: MAY 7, 2002
APPEARANCES:
ME DIANE DORAY FOR THE APPLICANT
ME DANIEL LATULIPPE FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
ALLEN & ASSOCIATES FOR THE APPLICANT MONTREAL, QUEBEC
MR. MORRIS ROSENBERG FOR THE RESPONDENT DEPUTY ATTORNEY GENERAL OF CANADA