Date: 20061123
Docket: IMM-773-06
Citation: 2006
FC 1417
Toronto, Ontario, November 23, 2006
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
ALEMTSEHY TESEMA
HANOKH IZHAK
DANIEL TESMA
Applicants
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
In the
present Application, the Applicant, and her two young children, all citizens of
Israel, challenge the decision of
the Refugee Protection Division (RPD) of the Immigration and Refugee Board,
dated January 20, 2006, in which their claim for protection was rejected.
[2]
The
Applicant bases her claim on prospective fear of violence at the hands of her
ex-common law husband should she return to Israel. In the hearing before the RPD, the
Applicant recounted a history of suffering extreme violence from this man,
including recent death threats. A primary element of her fear is the fact that
her ex-common law husband will be released from jail in Israel within a year having served
his sentence on a conviction for murder.
[3]
In support
of her claim before the RPD, the Applicant submitted a psychological report to
prove that she suffers from post-traumatic stress disorder as a result of the
abuse she has experienced. It is agreed that the psychological evidence is
relevant with respect to the Applicant’s willingness to seek state protection
in Israel, should she return.
[4]
The most
cogent feature of the psychological report is the following expert opinion:
With regard
to [the Applicant’s] psychological condition, Ms. Tesema is presently
experiencing symptoms consistent with the diagnosis of Post Traumatic Stress
Disorder (PRSD). She meets the criterion for trauma, having experienced
years of abuse with danger to her life and the well being of her children.
Currently, the trauma is persistently re-experienced as recurrent
distressing and intrusive recollections as well as recurrent and distressing
dreams (e.g. being stabbed). Flashbacks are experienced as well.
(Applicants’ Record,
p.47)
However, with the following
statement, in effect, the RPD refused to accept the expert opinion into
evidence:
Dr. Bodenstein’s second letter
largely contains the same information as in the first letter, often using the
same words. However, in his second letter he gives a diagnosis, namely that
the claimant is suffering from Post Traumatic Stress Disorder. He states that
she ‘meets the criterion for trauma, having experienced years of abuse with
danger to her life and well-being of her children.’ He gives no evidence as
which standard tests he used to arrive at his diagnosis. Furthermore, the
claimant has not suffered abuse from her husband since he went to prison in
1998, almost eight years ago. Nor has she presented any evidence that she
sought psychological or psychiatric assistance to deal with her trauma while
she was living in Israel. I find that the
psychologist’s report is based on the claimant’s testimony to him, some of
which was found to be lacking credibility in the hearing room.
[Emphasis added]
(Applicants’ Record, p.21)
[5]
The issue
for determination is whether, in rejecting the opinion, the RPD committed a
reviewable error. In Gina Curry v. Minister of Citizenship and Immigration,
IMM-10078-04, dated December 21, 2005, Justice Gauthier clearly delineates an
immigration officer’s discretion in assessing psychiatric or psychological
evidence:
As it has been mentioned on
numerous occasions by this Court, immigration officers are not experts in
psychology or psychiatry. They cannot simply discard experts’ opinions without
giving at least one reason that stands to probing examination.
Applying this opinion to the
present case, I agree with Counsel for the Applicant’s argument that the
refusal to accept the psychological opinion does not meet the standard
expressed.
[6]
In my opinion,
the RPD’s statement does not provide any legitimate reason for not accepting
the professional opinion. Expressed in the words used is the RPD’s belief that
the opinion is unsubstantiated, and contrary to its own opinion of the
Applicant’s mental state. I find that it was not open to the RPD to reject a
professional opinion on this basis, and to do so, constitutes the making of a
capricious finding. As a result, the RPD’s decision was rendered in reviewable
error.
ORDER
Accordingly, the RPD’s
decision is set aside and the matter is referred back to a different panel for
re-determination.
“Douglas
R. Campbell”
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