VA4-01670

Immigration and Refugee Board Refugee Protection Division Commission de l'immigration et du statut de réfugié Section de la protection des réfugiés RPD File # / No. dossier SPR VA4-01670 Private Proceeding Huis clos APPLICATION TO VACATE Respondent(s) Intimé(s) d'asile XXXXX XXXXX XXXXX Date(s) of Hearing Date(s) d'audience October 29, 2004 Place of Hearing Lieu de l'audience Vancouver, BC Date of Decision Date de la décision December 8, 2004 Panel Tribunal Michael A. Ross Claimant's Counsel Conseil du demandeur d'asile Shane Molyneaux Barrister & Solicitor Refugee Protection Officer Agent de la protection des réfugiés Nil Designated Representative Représentant désigné Nil Minister's Counsel Conseil du ministre K. Wong You can obtain the translation of these reasons for decision in the other official language by writing to the Editing and Translation Services Directorate of the IRB at the following address: 344 Slater Street, 14th Floor, Ottawa, Ontario K1A 0K1, by e-mail to translation@irb.gc.ca or by facsimile at (613) 947-3213. La Direction des services de révision et de traduction de la CISR peut vous procurer les présents motifs de décision dans l'autre langue officielle. Vous n'avez qu'à en faire la demande par écrit à l'adresse suivante : 344, rue Slater, 14e étage, Ottawa (Ontario) K1A 0K1, par courriel à traduction@cisr.gc.ca ou par télécopie au (613) 947-3213. On July 8, 2004 the Minister, pursuant to s. 109 (1) of the Immigration and Refugee Protection Act (IRPA),1 filed an Application to Vacate the determination that XXXXX XXXXX XXXXX (the "Respondent") is a Convention refugee. It will be useful to set out an overview of the facts. THE BACKGROUND The Respondent, a citizen of Sri Lanka, arrived in Canada on January 9 2000. On March 28, 2000 he signed his Personal Information Form (PIF)2 and a hearing into his claim was held on January 31, 2001 in front of a panel of the CRDD in Vancouver, British Columbia. The respondent based his claim upon alleged persecution he faced in Sri Lanka from the Sri Lankan Security Forces (SLSF). Specifically, he claimed in his PIF3 and at his hearing that after his mother hosted two of his cousins in XXXXX 1999 the family began to get visits from the Sri Lankan Police (SLP) because of their suspicions that the cousins were involved with the Tamil Tigers (LTTE). On XXXXX, 1999 one of the cousins - XXXXX - went missing and was never seen again. Later that day the SLP detained both the respondent and his other cousin - XXXXX. The respondent was taken to a Sri Lankan Army (SLA) camp and held until released on XXXXX, 1999. During his detention he was physically beaten and sexually abused continuously by a Colonel in the army. On XXXXX, 1999 the respondent was awakened one morning by noises from SLSF coming to arrest him. He fled and after a period of hiding succeeded in escaping to Canada. The other cousin, XXXXX, was never seen again either. A hearing into the claim took place on January 31, 2001. A positive decision was rendered at the conclusion of the hearing. The panel noted the centrality of the issue of credibility. In its reasons for judgment the panel noted: At the outset, credibility was identified as a significant issue and it is particularly so because the claimant provided false information and a false document to corroborate information that he was younger than he really is. When an individual lies to the Board with respect to identity, that is always a concern and it raises issues with respect to credibility. ...The next issue that I need to deal with is the credibility of the allegations about his experiences with the Sri Lankan Army and the reasons for those experiences... ...Having heard the claimant's evidence and heard the testimony of Dr. XXXXX, I'm satisfied that the claimant had the experiences that he alleges in his Personal Information Form and in his testimony...4 On February 6, 2004 the respondent arrived on a flight from Hong Kong. At the airport CIC became interested when they found him in possession of two passports in the name of XXXXX XXXXX XXXXX along with other documents in the name of XXXXX XXXXX XXXXX. A check with US officials revealed that he was one and the same person and had been living in the United States from XXXXX, 1999 and remained there until coming to Canada in XXXXX 2000.5 As a result of this information the Minister filed an Application to Vacate. At his hearing the claimant admitted that he had lied to the original panel and that he, in fact, had not been in Sri Lanka during the time the events he alleged had taken place. However, he stated that all the events that he had spoken of had taken place except that they had occurred exactly one year earlier. By way of explanation he stated that because he was operating under two different names he had to conceal the passports which would have shown him to have been in the United States rather than Sri Lanka at the times of the alleged incidents. The Current Application The Application to Vacate section of the IRPA is set out in S. 109. It reads: (1) The Refugee Protection Division may, on application by the Minister, vacate a decision to allow a claim for refugee protection, if it finds that the decision was obtained as a result of directly or indirectly misrepresenting or withholding material facts relating to a relevant matter. (2) The Refugee Protection Division may reject the application if it is satisfied that other sufficient evidence was considered at the time of the first determination to justify refugee protection. (3) If the application is allowed, the claim of the person is deemed to be rejected and the decision that led to the conferral of refugee protection is nullified. The previous section under the IA was s. 69.3 (5), which read: The Refugee Division may reject an application under subsection 69.2 (2) that is otherwise established if it is of the opinion that, notwithstanding that the determination was obtained by fraudulent means or misrepresentation, suppression or concealment of any material fact, there was other sufficient evidence on which the determination was or could have been based. In the past, the courts generally have held that for the purposes of conducting an analysis pursuant to this section there is a two-step process. Firstly, the burden is upon the Minister to adduce sufficient evidence to demonstrate that the claimant misrepresented, was fraudulent, suppressed or concealed a material fact. If the Minister demonstrates this then the Board is obliged to consider the remaining evidence available to the original panel in order to determine whether there is still sufficient evidence upon which to conclude that the claimant was or could have been a refugee. The Minister's Argument The Minister position is simple. The documents show, and the respondent acknowledges, that he was not in Sri Lanka at any of the times relevant to the alleged incidents in Sri Lanka. Consequently, the Minister states that she has demonstrated that the respondent mislead the original panel on the material facts. Secondly, the Minister has argued that absent this information all that is left as evidence for the original panel to consider is that the respondent is a citizen of Sri Lanka. This, the Minister contends, is not sufficient by itself to support a successful claim for refugee status. Consequently, the Minister urges the panel to vacate the respondent's status as a refugee. The Respondent's Argument Counsel for the respondent acknowledges that the respondent was not in Sri Lanka at the relevant times. However, he noted that, as to evidence left in front of the original panel, there remained the claimant's testimony about what happened to him - namely the sexual abuse by the SLA Colonel. As well, there was the testimony of Dr. XXXXX who concluded, on the basis of objective tests and the respondent's evidence that he had in fact been the victim of sexual abuse at the hands of a Colonel in the SLA. Consequently, even after removing the dates from the incidents the panel would be left with evidence, which indicated that the respondent was sexually abused and persecuted while in Sri Lanka and that is enough to justify a finding that he was a Convention refugee. Dr. XXXXX Evidence In his testimony to the original panel Dr. XXXXX stated that he performed two objective assessments upon the respondent - the Beck Depression Inventory and the Impact of Events Scale. On the former he testified that he found XXXXX to be "moderately depressed".6 On the latter Dr. XXXXX stated that he could not have scored higher.7 The doctor went on to state that, according to XXXXX other misfortunate events in his life - the death of his father, witnessing the carnage of the civil war over many years - did not traumatize him. The doctor stated that he could not second guess XXXXX on that.8 He concluded that: "So, there's nothing in which - that he said to me that suggested that there were any, you know, prior conditions that would account for this posttraumatic stress disorder."9 Dr. XXXXX was also asked whether he thought XXXXX could have misled him. Dr. XXXXX was adamant that he had not been fooled. He elaborated that he believed that he was very good at what he does and that he had objectively tested the respondent.10 Findings With respect to the first prong of the test the panel finds that the respondent's lies about the events taking place as he stated they had in his PIF and to the original panel can be characterised as "directly misrepresenting" or "withholding" material facts relating to a relevant matter. The information he withheld are clearly material facts and they relate to the relevant matter of whether the respondent suffered persecution in Sri Lanka. The panel finds that the Respondent directly and knowingly misrepresented a material fact and/or withheld that same fact from the CRDD. At this point it is necessary to turn to the second part of the review; namely, was there "other sufficient evidence" considered by original panel that could "justify refugee protection." In order to consider s. 109(2) we need to review what information was available to the original panel. If we subtract all the events between XXXXX 1999 and XXXXX 2000 from the respondent's PIF we are left with nothing other than a Sri Lankan man whose mother was Tamil and father was Malay and because of this their parents and siblings - excepting one - would have nothing to do with them. In the panel's view this evidence would have been insufficient for the original panel to have found that the respondent was a Convention refugee. However, counsel for the respondent has argued that "other" evidence that was considered by the original panel included the report of Dr. XXXXX, his testimony and indeed the testimony of the respondent himself. Dr. XXXXX concluded that the respondent was a victim of male sexual abuse at the hands of a Colonel in the SLA. That, argues counsel, is enough other "sufficient" evidence for the original panel to have found the respondent to be a Convention refugee. In the panel's view this reasoning is flawed. Reasonably considered, what the original panel would have had was evidence from the doctor that the respondent suffers from PTSD and that the respondent offered as an explanation for this that he had been sexually abused by a Colonel in the Sri Lankan Army. It is true that Doctor XXXXX concluded that the respondent suffered from PTSD. He testified that he concluded this because of his observations of the respondent on the basis of 6 hours of interviews and the respondent's scores on two objective tests. As to what caused this PTSD the doctor relied upon the story of abuse told by the respondent. It is important to note that both in his report and in his testimony Dr. XXXXX made it clear that he did not explore what happened to the respondent in any depth because he feared re-traumatising him.11 Perhaps, most importantly he stated in his report: While the basis for my conclusion [that the respondent suffers from post traumatic stress disorder] on this point is supported only by the evidence provided by Mr. XXXXX, I have no reason to doubt what he has said and feel satisfied in concluding that there are no other circumstances which could account for this symptom presentation.12 It is for this panel to form conclusions on credibility and while a medical practitioner's views may be of assistance they cannot supplant it. However, if we remove the incidents of 1999 in which the abuse is rooted then there remain no incidents. The fact that the events are alleged to have take place in 1998 is new evidence and the panel has no jurisdiction to consider this. If the respondent cannot rely upon this lie as to what happened to him in 1999 to found his claim then how could the doctor do so simply because he believed the lie and wrote about it and testified about it. In the panel's view what is left after subtracting the 1999 incidents is that the respondent is a Tamil suffering PTSD. Nothing else. It would have been speculation for the original panel to connect the PTSD to any particular event. As Dr. XXXXX put it himself in his testimony: The type two events, of which XXXXX falls into, are people who will go through repeated trauma, exposure to events which are beyond their control over an extended period of time and this fits into people such as prisoners of war, torture victims, domestic violence and child abuse.13 The panel finds that there was insufficient evidence in front of the original panel that could have justified a finding of refugee protection. Accordingly the Application to vacate is granted. "Michael A. Ross" Michael A. Ross December 8, 2004 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Exhibit 1. Amended on October 24, 2000. 3 Exhibit 1 (Exhibit 1 of original hearing). 4 Exhibit 1. 5 Exhibit 2. 6 Exhibit 2; transcript, page 63, line 10. 7 Ibid, line 39. 8 Ibid, page 63, line 17. 9 Ibid, lines 36 - 38. 10 Ibid, page 71, lines 7 - 25. 11 Exhibit 1, (Exhibit 7 of original hearing). 12 Ibid, page 5 of the report. 13 Exhibit 2, page 64, lines 20 - 23. REFUGEE PROTECTION DIVISION - VACATION - APPLICATION - MEDICAL EVIDENCE - MALE - ALLOWED - SRI LANKA --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 6 VA4-01670