Ottawa, Ontario, July 25, 2006
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
and
ANDIMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Gerard Rudaragi sought refugee protection in Canada after fleeing his native Burundi in 2003. He claims that he was beaten and threatened by Tutsis, and regarded with suspicion by Hutus, because of his mixed Tutsi-Hutu ethnicity. A panel of the Immigration and Refugee Board rejected his claim for a lack of credible evidence.
[2] Mr. Rudaragi argues that the Board made serious errors in its credibility findings. Further, he argues that the Board owed him a higher duty of fairness, and that this Court should scrutinize the Board's decision more closely, due to the government's failure to bring into force the provisions establishing the Refugee Appeal Division: Immigration and Refugee Protection Act, s.c. 2001, c. 27, s. 110. Given that I am satisfied that this application for judicial review should be allowed and a new hearing ordered on the first argument, I decline to address the second.
I. Issue
Did the Board fail to take adequate account of a psychological report dealing with Mr. Rudaragi's capacity to testify?
II. Analysis
(a) Background
[3] Mr. Rudaragi's original refugee hearing was held in April 2004. However, due to Mr. Rudaragi's difficulties in recalling events and testifying coherently, the Board adjourned the hearing pending a psychological assessment. A second hearing took place in January and March 2005.
(b) The Board's Credibility Findings
[4] The board drew negative inferences from the following elements of Mr. Rudaragi's evidence:
(i) Mr. Rudaragi testified that he had been imprisoned by the Tutsi military in 2003. However, this incident was not mentioned in the interview notes taken by the immigration officer at the port of entry to Canada. Mr. Rudaragi claimed that he mentioned this incident during the interview. He blamed the omission on the interpreter.
(ii) Mr. Rudaragi's testimony about the circumstances of his alleged detention was vague.
(iii) Mr. Rudaragi stated that he had been attacked by Tutsis and Hutus in 1998 and 1999, but he had failed mention those attacks in his personal information form (PIF). There he discussed attacks that had taken place in 1993-94.
(iv) Mr. Rudaragi's PIF mentions his arrest by Tutsi soldiers in 2003 but, in his oral evidence, he discussed detention by Hutu rebels.
(c) The Psychological Report
[5] The report concluded that Mr. Rudaragi suffers from "full-blown" Post-Traumatic Stress Disorder, which tends to interfere with cognitive functioning, "such that dates, details, and important factual information may become distorted, convoluted, or altogether forgotten". In other words, the report confirmed the observations made by the panel at Mr. Rudaragi's first hearing.
(d) The Board's Conclusion
[6] The Board considered the psychologist's report, but concluded that Post-Traumatic Stress Disorder did not adequately explain how Mr. Rudaragi could give "two completely different accounts of the same event". It appears, therefore, that the Board only considered the significance of the psychological report in relation to the last of its credibility findings (i.e. finding (iv), above). It did not consider whether Mr. Rudaragi's psychological circumstances might help explain the omission from his narrative at the port of entry, the lack of detail in his description of his detention or his confusion about dates. Yet these are the very kinds of cognitive errors that are referred to in the psychologist's report.
(e) Disposition
[7] In my view, the Board had a duty to consider the overall significance of the psychologist's report in its assessment of Mr. Rudaragi's credibility, particularly in light of the panel's observations at the first hearing. Accordingly, the Board's conclusion did not take proper account of significant evidence before it and I must, therefore, allow this application for judicial review and order a new hearing before a different panel. Counsel requested an opportunity to make submissions regarding a certified question. However, given the basis on which I have decided this case, no question of general importance arises, and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS THAT:
1. This application for judicial review is allowed and a new hearing is ordered on the first argument.
2. No question of general importance is stated.
FEDERAL COURT
NAME OF COUNSEL ANDSOLICITORS OF RECORD
DOCKET: IMM-4169-05
STYLE OF CAUSE: RUDARAGI v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 17, 2006
APPEARANCES:
| David Matas Sean Stynes |
|
| Jeremiah Eastman
|
SOLICITORS OF RECORD:
| MCKENZIE LAKE LAWYERS, LLP Toronto, ON |
|
| JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, ON
|