Toronto, Ontario, February 22, 2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Eduardo Hernan Lozano Pulido is a Peruvian citizen who sought refugee protection based upon his alleged fear of persecution at the hands of the Peruvian security forces because of his perceived support of the Shining Path terrorist organization. His claim was rejected by the Refugee Protection Division of the Immigration and Refugee Board on the basis that his story of persecution was not credible.
[2] Mr. Lozano seeks judicial review of the Board’s decision, asserting that the Board erred in failing to properly come to grips with the evidence before it relating to his mental illness, and the impact that his illness had on his testimony. The Board further erred, Mr. Lozano says, by rejecting a document that corroborated his story on the basis that it was undated, when that was not the case, in requiring that he produce documentary evidence corroborating his story, and in making plausibility findings that were speculative and made without regard to the evidence.
[3] Notwithstanding the high degree of deference to be paid to the Board’s findings with respect to matters of credibility, I am satisfied that in this case, the Board’s findings were so seriously flawed as to be patently unreasonable, and that, as a result, the application for judicial review must be allowed, and the Board’s decision set aside.
Background
[4] Mr. Lozano was in charge of a local electoral office during the Peruvian election of 1989. He alleges that during that campaign, members of the Shining Path broke into his office and stole a number of election related documents. When Mr. Lozano was questioned by the police about the break-in, the police suspected him of being an accomplice of the Shining Path. As a consequence, he was arrested and interrogated by the “DINCOTE”, the Peruvian anti-terrorism directorate. Mr. Lozano says that he was only released from detention as a result of the intervention of a family friend, who was a commandant in the police force.
[5] Mr. Lozano alleges that he was again arrested by the DINCOTE in 1998 because of his alleged role in the Shining Path. During this detention, he says that he was severely beaten. Mr. Lozano further alleges that he was interrogated about his alleged involvement in the terrorist group, and was forced to sign a confession.
[6] Fearing for his safety, Mr. Lozano moved to Chincha, another region of Peru approximately 200 kilometres away from Lima. However, he says that when he returned to Lima to visit his family, he was threatened by two individuals who said they would turn him in to the DINCOTE, unless he paid them money.
[7] Mr. Lozano then made arrangements to leave Peru and to travel to Canada. He claims that he had to bribe two corrupt officials in order to clear his name and obtain legal travel documents.
[8] After arriving in Canada, Mr. Lozano received a phone call from his father, who told him that a warrant had been issued for his arrest. Mr. Lozano was so distressed by this revelation, he attempted to commit suicide.
Procedural History of this Case
[9] Because of his counsel’s concerns with respect to Mr. Lozano’s mental status, Mr. Lozano’s refugee hearing was adjourned on order to allow counsel to seek professional advice.
[10] Shortly before the first day of Mr. Lozano’s refugee hearing, his counsel filed a psychological report with the Board from Dr. Judith Pilowsky. Based upon an assessment of Mr. Lozano carried out in mid-August of 2005, Dr. Pilowsky reported that Mr. Lozano suffered from a major depressive disorder of moderate severity, and had already suffered two psychological breakdowns.
[11] While Dr. Pilowsky was of the view that Mr. Lozano should be able to testify at his refugee hearing, she said that it was possible that he could break down if forced to speak about his past trauma. Moreover, Dr. Pilowsky stated that the stress of the hearing setting could lead Mr. Lozano to succumb to elevated anxiety, which would affect his ability to concentrate and to recall details.
[12] Mr. Lozano’s refugee hearing commenced on September 27, 2005. It is clear from both a review of the transcript and the Board member’s decision that it was a very difficult day for all concerned. The transcript reveals that Mr. Lozano was frequently confused and seemingly had difficulties in concentrating on the task at hand. Moreover, his thoughts seemed disorganized, and his evidence was frequently inconsistent and contradictory.
[13] Shortly after the first day of the hearing, Mr. Lozano was admitted to the Center for Addiction and Mental Health in Toronto. According to Dr. Pablo Diaz, Mr. Lozano was quite ill, and was suffering from paranoid delusions, elated mood and irritability.
[13]
[14] It turns out that this was not his first admission to this facility. Mr. Lozano had evidently previously been admitted to the Center for Addiction and Mental Health in 2004, at which time he had been diagnosed as suffering from a bipolar disorder. Dr. Diaz described a bipolar disorder as “a chronic mental illness manifested by episodes of increased elated mood or episodes of severe depression”.
[15] Dr. Diaz also stated in his report that Mr. Lozano had not been taking his medication at the time of his first refugee hearing, and that when he stopped taking his medication, he became irritable, grandiose, paranoid, disorganized in his thought processes, and would have poor concentration. Moreover, Mr. Lozano’s symptoms would be worsened by external stressors, such as his attendance at his refugee hearing.
[16] Dr. Diaz reports that he himself spoke to Mr. Lozano in September of 2005, and found him to be “very difficult to engage in a conversation”.
[17] Dr. Diaz’ report was prepared in December of 2005, and was provided to the Board by Mr. Lozano’s counsel. By the time the report was prepared, Mr. Lozano was back on his medication.
[18] Mr. Lozano’s refugee hearing resumed on January 13th, 2005. While Dr. Diaz’ report was in Mr. Lozano’s Board file, it did not appear that the presiding member had actually read it prior to resuming the hearing, although it was drawn to her attention by Mr. Lozano’s counsel at the outset of the second hearing day.
[19] On the second day of the hearing, Mr. Lozano testified briefly, following which, counsel’s submissions were received, and the hearing concluded.
The Board’s Decision
[20] The Board found that Mr. Lozano’s allegations of having been persecuted by DINCOTE because he was perceived to be an accomplice of the Shining Path group to have been inconsistent and contradictory.
[21] In coming to this conclusion, the Board noted the numerous inconsistencies in his testimony, observing that Mr. Lozano’s testimony was “very weak, contradictory and confused in many areas”. The Board further noted that in relation to the differing versions of his testimony, Mr. Lozano had explained that “he was confused and had trouble […] concentrat[ing]”.
[22] The Board also found certain aspects of Mr. Lozano’s story to have been implausible. Consequently, the Board rejected Mr. Lozano’s claim on the basis that it was not credible.
[23] The Board also declined to attribute any weight to a medical report filed by Mr. Lozano with respect to the medical treatment that he received after his alleged beating in 1998, because of “the general lack of credibility of this claim, and, moreover, the absence of a date on the document”.
[24] Insofar as the medical evidence with respect to Mr. Lozano’s mental status was concerned, the Board stated that between the first hearing date and the second date, Mr. Lozano had filed “a psychological report”, explaining that he suffered from a bipolar disorder, and had not been taking his medication at the time of his first hearing. The Board further noted that Mr. Lozano’s counsel had argued that his condition explained the many inconsistencies in his testimony.
[25] The Board did not accept counsel’s submission, stating:
We do not accept these explanations. During both hearings, the claimant understood the questions asked to him and understood also what was going on. He was at a los[s]. It is possible that the claimant is bipolar; we understand that he could also have been very nervous at the hearings. This could have explained minor mistakes or some moments of confusion. But his condition cannot explain what appears to be a serious lack of knowledge of major allegations and, the omissions and contradictions in the different documents including the numerous amended versions of his PIF.
The implausibility of many of his allegations … also points to a general lack of credibility of this claim.
Analysis
[26] The Board’s entire decision turned on the question of credibility. There is no question that credibility findings made by the Refugee Protection Division of the Immigration and Refugee Board are to be accorded considerable deference and are to be assessed against the standard of patent unreasonableness. Nevertheless, in this case I have absolutely no hesitation in concluding that the Board’s finding that Mr. Lozano was not credible was patently unreasonable in light of the medical evidence before the Board.
[27] Dr. Diaz is a qualified psychiatrist, who by the time that he prepared his report in December, 2005, had been treating Mr. Lozano for over a year. His report is crystal clear and unequivocal: Mr. Lozano suffered from a bipolar disorder. As a result, the Board’s statement that it was possible that Mr. Lozano was bipolar exhibits a degree of scepticism on the part of the presiding member with respect to Mr. Lozano’s mental state that was entirely unwarranted in the circumstances.
[28] In this regard, it bears noting that while members of the Refugee Protection Division have expertise in the adjudication of refugee claims, they are not qualified psychiatrists, and bring no specialized expertise to the question of the mental condition of refugee claimants.
[29] There are additional problems with the Board’s analysis. Later on in the decision, the Board refers to “the two psychological reports”, evidently not appreciating that Dr. Diaz was a psychiatrist. By itself, this might not be particularly troubling, but my concern with respect to the Board’s understanding of the evidence regarding Mr. Lozano’s mental state is heightened by the fact that the presiding member identifies both of the reports before her as being psychological reports as having come from Dr. Pilowsky, suggesting a lack of careful consideration of the two reports on the part of the member.
[30] Even more troubling is the following statement on the part of the Board:
Regarding the psychological reports (sic), while the tribunal accepts the clinical diagnosis of Dr. Pilowsky, it does not accept that this condition resulted from the problems presented before the tribunal. The assessment of credibility of the domain of the tribunal, and for the reasons given previously, the claimant is not credible.
[31] I will give the member the benefit of the doubt, and assume that when she referred to the two psychological reports of Dr. Pilowsky, she was actually referring to the one psychological report of Dr. Pilowsky and to Dr. Diaz’ psychiatric report. That said, there is no suggestion anywhere in Dr. Diaz’ report that Mr. Lozano’s bipolarity resulted from the persecution that Mr. Lozano says he suffered in Peru. Moreover, the issue that confronted the Board was not the cause of Mr. Lozano’s bipolarity, but the effect that his untreated bipolar disorder had on his ability to testify on the first day of his refugee hearing.
[32] The evidence of Mr. Lozano’s treating psychiatrist as to his mental condition on the first day of his refugee hearing was uncontroverted, and was not addressed in any meaningful way by the Board. On September 27, 2005, Mr. Lozano had not been taking his medication. The effect of his failure to take his medication was that he would become confused, his thoughts would become disorganized, and he would be unable to concentrate.
[33] Why did the Board find that Mr. Lozano’s story was not credible? Largely because his evidence (most of which was given on the first day of the hearing) was inconsistent and confused.
[34] Hassan v. Canada (Minister of Citizenship and Immigration) (1999), 174 F.T.R. 288, involved a similar situation to that presented in Mr. Lozano’s case. In Hassan, Justice Evans stated:
19 In this case, as I have indicated, the credibility of the applicant's testimony was fundamental to the panel's decision. The panel explained its finding by reference to the contradictions in the applicant's evidence, and to the slow and confused answers that he gave to questions. Indeed, on reading the transcript I can confirm that the applicant's evidence was on occasions quite incoherent.
20 However, in making its finding the panel did not come to grips in its reasons with the content of the medical report that had been submitted to it. In my opinion this report was both cogent and relevant to the finding of credibility. The deficiencies in the applicant's testimony that led the panel to find that it was not credible are also consistent with the psychiatric and other problems from which the report states that Mr. Hassan suffers, the treatment that he is receiving for them and the results of the tests administered to Mr. Hassan by the psychologist.
21 I do not wish to be understood to be saying that the panel's finding of non-credibility was unreasonable in light of the medical report. Not at all. What I do say is that the reasons for decision ought to have indicated clearly that, in assessing the applicant's credibility, the panel explicitly addressed the content of that report.
[35] This is precisely the case here. It was patently unreasonable for the Board to reject Mr. Lozano’s testimony as not credible, without properly addressing Dr. Diaz’ opinion with respect to the effect that Mr. Lozano’s untreated bipolar disorder had on his ability to testify on the first day of his refugee hearing.
[36] The respondent argued that quite apart from the Board’s finding that Mr. Lozano’s testimony was not credible, the Board also made plausibility findings that did not depend on Mr. Lozano’s ability to testify.
[37] There are several problems with this submission. First of all, it is well established that in making plausibility findings, the Board must proceed with caution, and that such findings should only be made in the clearest of cases, where, for example the facts are either so far outside the realm of what could reasonably be expected that the trier of fact could reasonably find that it could not possibly have happened, or where the documentary evidence before the tribunal demonstrates that the events could not have happened in the manner asserted by the claimant: see Divsalar v. Canada (Minister of Citizenship and Immigration), [2002] F.C.J. No. 875, 2003 FCT 653, at ¶ 24. That is simply not the case here.
[38] Moreover, the medical evidence from Dr. Diaz makes it clear that Mr. Lozano was likely unable to properly explain what happened to him in Peru, and thus there is some question as to what exactly happened to him in that country, limiting the Board’s ability to determine if the story was plausible.
[39] Finally, while the Board did certainly refer to its plausibility findings as a basis for its finding that Mr. Lozano was not credible, a review of the decision as a whole makes it clear that the Board’s primary reason for finding that Mr. Lozano’s story of persecution was not credible was the inconsistencies in his story.
[40] The Board was also dismissive of the one piece of documentary evidence proffered by Mr. Lozano to corroborate his claim - namely the hospital report detailing the injuries suffered by Mr. Lozano in 1998. The Board declined to attribute any weight to the note because of “the general lack of credibility of this claim, and, moreover, the absence of a date on the document”.
[41] Quite apart from the problems with respect to the Board’s assessment of Mr. Lozano’s credibility which have already been discussed in detail, this statement is simply wrong in fact. While the quality of the photocopy of the hospital note is very poor, what is perfectly clear in the copy is the date on the note, which is 27/05/98. As a consequence, the note fits with the time frame in which Mr. Lozano says that he was beaten by the Peruvian authorities. As a consequence, I am satisfied that the rationale given by the Board for declining to attribute any weight to the document was patently unreasonable.
[42] It is true that the translated copy of the note does not contain the date, but that does not excuse the Board’s error. It is the duty of the Board to consider all of the evidence before it. For the reasons cited above, I have no confidence that the Board did so in this case.
[43] Given my findings to this point, it is not necessary to address the balance of Mr. Lozano’s arguments.
Conclusion
[44] For these reasons, the application for judicial review is allowed.
Certification
[45] Neither party has suggested a question for certification, and none arises here.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1. This application for judicial review is allowed, and the matter is remitted to a different panel of the Board for re-determination; and
2. No serious question of general importance is certified.
“Anne Mactavish”
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-1974-06
STYLE OF CAUSE: EDUARDO HERNAN LOZANO PULIDO v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 21, 2007
APPEARANCES:
Leigh Salsberg FOR THE APPLICANT
Bernard Assan FOR THE RESPONDENT
SOLICITORS OF RECORD:
JACKMAN & ASSOCIATES FOR THE APPLICANT
Toronto, Ontario
JOHN H. SIMS, Q.C.
Deputy Attorney General of Canada FOR THE RESPONDENT
Toronto, Ontario