Date: 20041129
Docket: IMM-8624-03
Citation: 2004 FC 1676
Ottawa, Ontario, this 29th day of November, 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
AUNG KYAW MIN
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Aung Kyaw Min fled Myanmar out of fear of political persecution. A panel of the Immigration and Refugee Board dismissed his claim for refugee protection in Canada because it was not satisfied that Mr. Min had proven his identity. Mr. Min testified that he acquired a passport and a National Registration Card under a newly-acquired name to enable him to leave Myanmar. However, his testimony and written narratives were inconsistent in several areas. In the end, the Board simply did not believe his story and concluded that he had not proven his identity.
[2] Mr. Min argues that the Board wrongly dismissed his explanations for the inconsistencies in his evidence. In addition, he maintains that the Board should have considered a psychologist's report which concluded that he was suffering from Post-traumatic Stress Disorder and that he would have great difficulty testifying at his hearing before the Board. The Board did not mention the report in its analysis of Mr. Min's credibility. Mr. Min has asked me to order a new hearing before a different panel of the Board.
[3] In my view, in the circumstances of this case, the Board was bound at least to consider the psychologist's report. On that basis, I must allow this application for judicial review.
I. Issue
[4] Did the Board err in not considering the psychologist's report?
II. Analysis
[5] The Board is not obliged to refer to every document before it. However, the more important the document, the greater the duty on the Board to consider it expressly: Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (T.D.) (QL). With respect to medical and psychological reports, the Board must consider them if it makes credibility findings on grounds for which that evidence is relevant: Bernardine v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1187, [2002] F.C.J. No. 1590 (T.D.) (QL).
[6] For example, before the Board draws an adverse inference from a claimant's demeanour, it must consider an expert's opinion that helps provide an explanation for that behaviour: Sanghera v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 87 (T.D.) (QL). On the other hand, if the Board does not believe that a psychological opinion explains the claimant's testimony, it is entitled to give it little or no weight: Dekunle v. Canada (Minister of Citizenship and Immigation), 2003 FC 1112, [2003] F.C.J. No. 1403 (QL).
[7] The psychologist who interviewed Mr. Min concluded that he has difficulty concentrating and has memory problems. He sometimes has trouble understanding questions. He would "not be able to tolerate interrogation during the hearing" because he has flashbacks and suffers extreme stress when questioned.
[8] The Board discounted Mr. Min's evidence because he gave inconsistent accounts of how he acquired his identity documents. It considered some of his explanations to be implausible, especially considering his level of education. Overall, it found that his evidence "stretches the boundaries of credibility" and was "entirely without trustworthiness". Further, it characterized Mr. Min himself as "manipulative" and "deceitful".
[9] The Board clearly arrived at a very negative assessment of Mr. Min's evidence. However, given the content of the psychologist's report, the Board had a duty at least to consider whether the factors cited in that report explained, in whole or in part, the irregularities in Mr. Min's evidence. In fact, the Board did not refer to the report at all, even though the psychologist's assessment had figured prominently in Mr. Min's written submissions to the Board.
[10] In these circumstances, I must allow the application for judicial review and order a new hearing before a different panel. Neither party proposed a question of general importance for me to certify, and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is allowed;
2. A new hearing before a different panel of the Board is ordered;
3. No question of general importance is stated.
"James W. O'Reilly"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-8624-03
STYLE OF CAUSE: AUNG KYAW MIN v. MCI
PLACE OF HEARING: TORONTO
DATE OF HEARING: November 23, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE O'REILLY
DATED: November 29, 2004
APPEARANCES BY:
Mr. Michael Crane FOR THE APPLICANT
Ms. Neeta Logsetty FOR THE RESPONDENT
SOLICITORS OF RECORD:
MICHAEL CRANE FOR THE APPLICANT
Toronto, ON
MORRIS ROSENBERG
Deputy Attorney General of Canada
Toronto, ON FOR THE RESPONDENT