BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT
[1] On March 9, 2005, a Member of the Immigration Division (ID) of the Immigration and Refugee Board (IRB) determined that Mr. Krishnasamy is a person described in paragraph 34(1)(f) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) and is therefore inadmissible to Canada. Paragraph 34(1)(f) provides that a permanent resident or foreign national is inadmissible on security grounds for being a member of an organization that there are reasonable grounds to believe engages, has engaged, or will engage in acts referred to in paragraph (a), (b) or (c). In Mr. Krishnasamy's case, the Member's conclusion was based on his membership in a terrorist organization (paragraph 34 (1)(c)). Accordingly, the ID ordered that he be deported and issued a deportation order against him. This is an application for judicial review of that decision. For the reasons that follow, I conclude that the application must be dismissed.
I. Background
[2] Mr. Krishnasamy, a 25-year-old male Tamil citizen from Kilinochi (a northern province of Sri Lanka), left Sri Lanka in the fall of 1999 with the assistance of an agent. It appears that he travelled first to Russia, where he remained for two to three months, and then to England, arriving there on November 25, 1999. He remained in Englandfor approximately four years while his refugee claim was processed. That refugee claim was rejected as was his subsequent appeal.
[3] On October 22, 2003, he arrived in Canada for the stated purpose of making a refugee claim. Upon arrival, he was examined by officers from Citizenship and Immigration Canada (CIC) to whom he admitted his active involvement with the Liberation Tigers of Tamil Eelam (LTTE). Because of his admission, he was flagged as potentially inadmissible on security grounds and was referred to an admissibility hearing before the ID. The decision of the ID, following the admissibility hearing, is the subject of this application.
[4] Mr. Krishnasamy has provided the contradictory evidence contained in the paragraphs that follow.
United Kingdom - December 10, 1999
[5] Here, he claimed to be a strong supporter of the LTTE. He stated that while in school, he and other students supported the LTTE and that after he left school in 1997, he became an official member. He stated that he performed a number of duties for the LTTE: treated the wounded; dug bunkers; cooked food; participated in rallies and marches organized by the LTTE (including Martyrs' Day); attended several LTTE meetings; and participated in anti-government demonstrations. He claimed to have fled from the LTTE when it attempted to coerce him to join a suicide squad.
CanadianPortof Entry Interviews - October, 2003
[6] There were two separate interviews conducted by different immigration officers at the port of entry (POE). The first was on October 23rd and the second, on the 24th. At this stage, Mr. Krishnasamy denied that he had made a refugee claim in any other country. He led both immigration officers to believe that he had remained in Sri Lanka until 2002, at which point he fled to Russia where he stayed for one year, until his arrival in Canada. He made no mention of his time in the United Kingdom or his failed refugee claim there. During the October 23rd interview, he claimed to have been a member of the LTTE from 1995 until 2000. In his interview the following day, he stated that: he was a participant in a student movement associated with the LTTE from 1995-1997; he officially joined the LTTE in 1997; and he left the organization in 2001.
[7] In both interviews, Mr. Krishnasamy stated that he was trained for six months at Mullaittivu, Sri Lanka in "how to attack" and "how to escape attack". Further, he admitted to training involving: the use of small hand grenades; the driving of vehicles; swimming; and evasive manoeuvres. After this training, he said that he performed various duties for the LTTE in that he: transported food, water and weapons; removed weapons from fallen fighters; treated the injured; and drove the bodies of dead fighters back to camp. He avowed that he performed all of these duties voluntarily, believing the LTTE was "fighting for our country". He further claimed that he was present at the 1997 attack on the Sri Lankan army camp at Mullaittivu where he witnessed the deaths of 3,500 Sri Lankan soldiers.
Admissibility Hearing before the ID Member - May 12, June 21, September 22, 2004
[8] In his testimony before the ID Member, Mr. Krishnasamy denied being an active member of the LTTE. He stated that he only did work for the LTTE during his student years (1995-1997) and that such work was more compulsory than voluntary. He explained that he had lied at his POE interviews because he had been instructed by his agent to do so. He denied the veracity of all of his previous claims with respect to battlefield activities (carrying of weapons, water and food; driving of vehicles; and training with grenades). He further disclaimed any firsthand knowledge of the massacre at Mullaittivu, asserting that his agent had instructed him to make this claim.
II. The Decision
[9] As noted at the outset, the ID Member found that there were reasonable grounds for considering that Mr. Krishnasamy was a person described in paragraph 34(1)(f) of the IRPA. More specifically, the Member found that he was inadmissible to Canada on security grounds for being a member of an organization (the LTTE) for which there are reasonable grounds to believe engages in, has engaged, or will engage in the acts referred to in paragraph 34(1)(c), namely, terrorism.
[10] First, the Member concluded that there were "reasonable grounds to believe" that the LTTE is or was an organization that has engaged in terrorism. Hence, the only remaining issue for determination was whether Mr. Krishnasamy was a member of the LTTE. In view of the contradictory versions of events provided by Mr. Krishnasamy, the Member viewed the task at hand as determining whether Mr. Krishnasamy's current position (that he was not a member) was more credible than his previous accounts.
[11] The ID Member found that the ultimate narrative was not credible and concluded that the versions of events provided in England and upon arrival in Canada at the POE were more credible than those provided in the personal information form (PIF) and at the hearing. As a result, the Member determined that there were reasonable grounds to believe, based on the earlier testimony, that Mr. Krishnasamy was a member of an organization for which there were reasonable grounds to believe was involved in terrorist activities.
III. Issue
[12] Mr. Krishnasamy identifies the issue as: "Did the Immigration Division err in law or in fact, breach fairness or exceed jurisdiction in relation to the credibility determination?" The grounds of review advanced in the written submissions, but for two, were not argued at the hearing. Mr. Krishnasamy's counsel abandoned the other grounds and I am satisfied that the only issues before me are those set out below, which are intertwined.
(a) Is the ID Member's treatment of the medical evidence, in particular, a psychiatrist's report, patently unreasonable?
(b) Is the ID Member's "selection of evidence" unreasonable?
IV. The Standard of Review
[13] The parties agree that the appropriate standard of review is that of patent unreasonableness. Findings of credibility are reviewed on the standard of patent unreasonableness: Mugesera v. Canada(Minister of Citizenship and Immigration), [2005] 2 S.C.R. 100. However, if the interpretation of the word "member" is in issue, the applicable standard of review is reasonableness: Poshteh v. Canada (Minister of Citizenship and Immigration), [2005] 3 F.C.R. 487 (C.A.)
V. The Medical Evidence
[14] At the hearing, Mr. Krishnasamy's counsel (who is not counsel on this application) submitted a psychiatrist's report dated August 23, 2004. The report concluded that Mr. Krishnasamy demonstrated symptoms of major depressive disorder and post-traumatic stress disorder and that he was experiencing difficulties with respect to his ability to concentrate and recollect.
[15] The report was requested, obtained and submitted as a result of the incoherent testimony and puzzling demeanour exhibited by Mr. Krishnasamy during his May 12th testimony. The argument is that the ID failed to come to grips adequately with this medical evidence and that it had an obligation, in law, to do so. Mr. Krishnasamy's counsel relies on Hassan v. Canada(Minister of Citizenship and Immigration) (1999), 174 F.T.R. 287 (T.D.) (Hassan) and Yilmaz v. Canada(Minister of Citizenship and Immigration) (2003), 38 Imm. L.R. (3d) 289 (F.C.) (Yilmaz) in support of the proposition that, in circumstances where a medical report is relevant to a finding of credibility, the decision-maker is obliged to explain how it dealt with it in the context of making its non-credibility finding. Counsel contends that the ID Member simply "did not come to grips with the medical report" as it was required to do.
[16] I agree that the noted authorities stand for the stated proposition. However, it is useful to examine the circumstances of those cases before discussing those that exist here. In Hassan, the Convention Refugee Determination Division (CRDD) had before it a medical report that indicated that the applicant was HIV-positive and schizophrenic, with a history of alcohol abuse. In arriving at its negative decision with respect to credibility, the CRDD did not specifically refer to the medical report.
[17] In Yilmaz, the CRDD did not accept the diagnosis in a medical report because the board did not accept that the incidents in question had actually taken place. The CRDD's dismissal of a report that could have served to explain difficulties in the applicant's narrative on the basis that his credibility had already been discounted was found to be patently unreasonable.
[18] In this case, the ID does refer to the psychiatric report in its reasons, but states that it provides no satisfactory clarification. The ID concludes that Mr. Krishnasamy's behaviour is better explained by nervousness and a reluctance to commit to an honest retelling of events rather than by the psychological disorders indicated in the medical reports. This situation is different from that in Hassan where the board did not refer to the medical report. In contrast to Yilmaz, the ID did not reject the psychiatric report on that basis that it did not believe the applicant or his version of events to be credible. Rather, the ID accepted the legitimacy of the report, but denied its usefulness.
[19] As noted, the report was requested, obtained and submitted as a result of Mr. Krishnasamy's disjointed and contradictory testimony during the hearing in May. When the review of the translation of that proceeding revealed no translation problems, counsel sought another explanation: the mental instability of the applicant. Counsel requested, as a result of his client's behaviour, the opportunity to have a psychological report prepared. The request was granted and the scheduled date for the resumption of the hearing was postponed to facilitate the acquisition of the report. Ultimately, the ID concluded that the report "gives no satisfactory clarification" of the issue (the issue being the applicant's difficulties in answering questions). It is evident that the ID viewed the purpose of the report as an effort to explain the behaviour during the May segment of the hearing. I am inclined to agree.
[20] However, during the June 21st portion of the hearing (tribunal record at p. 518), Mr. Krishnasamy's counsel indicated that the contents of the psychiatrist's letter could be useful regarding the overall credibility concerns. Additionally, in written submissions, counsel stated:
Finally, the demeanor, frankness and clarity of his testimony before the Immigration Division support his account that he was never a member of the LTTE, but that his involvement was limited to involuntary assistance in non military activities. In assessing the evidence of Mr. Krishnasamy I ask that you be mindful of his mental health and the evidence of Dr. Sooriabalan that he suffers from a number of symptoms including poor concentration and short term memory. Given this finding and his current mental state, I ask that you accord Mr. Krishnasamy the benefit of the doubt in your deliberations on his testimony. Any perceived evasiveness and inconsistencies may be attributed to his depression and post traumatic stress disorder (tribunal record at p. 228).
[21] Whether the report was tendered to explain Mr. Krishnasamy's behaviour during the May segment of the hearing, as I believe it was, or whether, arguably, it constituted a means by which to justify his previous testimony is of no consequence because, in my view, the ID Member's treatment of the psychiatric report was not patently unreasonable.
[22] In Karli v. Canada (Minister of Citizenship and Immigration) (2005), 137 A.C.W.S. (3d) 1007; 2005 FC 276, one of the issues was whether the board properly assessed the medical evidence and, in particular, medical reports relating to the applicant's moderate cognitive impairment. The applicant argued that the board erred in its appreciation of two medical reports in the context of its negative assessment of his credibility. In dismissing the applicant's application for judicial review, Chief Justice Lutfy, at paragraphs 13 and 14 stated:
¶ 13 In my view, the member set out her reasons for her negative finding of credibility in clear and unmistakable terms. Her thorough questioning of the applicant on the first day of the hearing to test his ability to participate in the process was precipitated by her earlier review of the medical reports. She allowed the designated representative to assist the claimant during the hearing by repeating questions, when necessary, in more direct and simpler terms. In the two penultimate paragraphs of her decision dealing with the psychiatric and psychological assessments, she found that these medical reports did not affect her negative finding of credibility.
¶ 14 In my view, this conclusion was open to her. She was alert and sensitive to the medical reports prior to and throughout the hearing. She knew the applicant had cognitive challenges. On my review of the transcript, her negative finding of credibility was one she was able to make, even taking into account the medical reports...
[23] These comments are apposite here. The ID Member's reasons, as well as the transcript, reveal that the Member was "alert and sensitive" to the psychiatric report. Moreover, the negative finding of credibility was open to the ID notwithstanding the report. If the ID had failed to consider the report, or had disbelieved its contents, the situation might well be different. However, that is not the case. The Member was aware of Mr. Krishnasamy's diagnosis and did not fail to acknowledge it in the credibility assessment. The ID Member's determination that the psychiatric report did not provide the better explanation for the inconsistencies and evasiveness in Mr. Khrisnasamy's evidence was a determination for the Member to make. The conclusion is neither patently unreasonable, nor unreasonable, in the circumstances. It is settled law that the court's function is not to substitute its opinion for that of the decision maker, even where it might have arrived at a different result.
[24] Mr. Krishnasamy's counsel also submits that it was patently unreasonable for the ID to pick and choose that evidence which favours its result. The discrepancies in Mr. Krishnasamy's evidence, counsel asserts, are rife. Each account provided by him contradicts another and it was, therefore, wrong for the Member to choose only "some of this evidence". I disagree.
[25] The ID Member did all that could be expected, and more, to accommodate Mr. Krishnasamy. The efforts in this respect are summarized at page 15 of the reasons and are borne out by the transcript. Additionally, the ID Member considered the medical report and examined carefully the various accounts provided by Mr. Krishnasamy.
[26] The Member acknowledged the differences in the evidence and found that the substance of Mr. Krishnasamy's evidence in England was reasonably consistent with the substance of his evidence on arrival in Canada. The ID Member extrapolated and painstakingly delineated the consistencies as well as the contradictions. The Member found that it was only when Mr. Krishnasamy became aware of possible negative consequences that he disavowed any extensive activities or involvement with the LTTE and claimed, for the first time, that he had done certain things for the LTTE only under compulsion and not voluntarily. This is a factual finding and no issue is taken with it. In short, the ID Member did not accept Mr. Krishnasamy's recantation of his earlier accounts.
[27] In the end, the Member stated:
For the above reasons, I have accepted the evidence in Mr. Krishnasamy's earlier statements as credible or trustworthy for the purposes of this decision, and have rejected his denials in later statements as not credible. I have concluded on this basis that there are reasonable grounds to believe that Mr. Krishnasmy (sic) was a member of the LTTE, by virtue of his participation in a LTTE student organization, as well as his activities in assisting the LTTE while he was a student, and also because, on his own admission that, when he finished his studies, he formally joined the LTTE, and continued to perform acts in conjunction with and in support of this organization until he decided to leave Sri Lanka in 1999. The activities that he has described included assisting, and providing support to the LTTE on an extensive, long-term basis, including during military engagements. Mr. Krishnasamy participated voluntarily, and has stated that he approved of the reasons why the LTTE was engaged in their struggle. In my opinion, on this evidence, there are certainly reasonable grounds to believe that Mr. Krishnasmy (sic) was a member of the LTTE.
That conclusion is not unreasonable, patently, or otherwise.
[28] For the foregoing reasons, the application for judicial review will be dismissed. Judgment will go accordingly. Counsel did not propose a question for certification and none arises.
"Carolyn Layden-Stevenson"
Judge
Ottawa, Ontario
April 7, 2006
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1841-05
STYLE OF CAUSE: MAHINDAN KRISHNASAMY v.
MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 30, 2006
REASONS FOR JUDGMENT: LAYDEN-STEVENSON J.
APPEARANCES:
| Mr. Micheal Crane
|
|
| Mr. Stephen H. Gold |
SOLICITORS OF RECORD:
| Mr. Micheal Crane Barrister and Solicitor Toronto, Ontario
|
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| John H. Sims, Q.C. Deputy Attorney General of Canada |