Romiluyi v. Canada (Minister of Citizenship and Immigration), 2006 FC 1194

 

 

 

Date: 20061005

Docket: IMM-7503-05

Citation: 2006 FC 1194

Toronto, Ontario, October 5, 2006

PRESENT:     The Honourable Mr. Justice Campbell

 

BETWEEN:

STELLA ROMILUYI

DANIEL ONI

CHRISTINE ONI

 

Applicants

and

 

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

 

 

REASONS FOR ORDER AND ORDER

 

[1]               In the present Application, the principal Applicant bases her claim for protection on evidence that her common-law husband has been violent towards her, and if she returns to Nigeria, she fears she will again be subjected to the violence.

 

[2]               The Refugee Protection Division (RPD) rejected the Applicant’s claim on the basis of highly contested findings of inconsistency between the Applicant’s evidence and that of her sister, and implausibility findings concerning the Applicant’s conduct.  Indeed, the RPD effectively found that the Applicant is lying about important aspects of her claim, including the abuse she has suffered.  As a result, the RPD excluded two pieces of independent evidence tending to corroborate the Applicant’s evidence for the reason that, since the Applicant had already been found to be lying, the evidence is of no value.

 

[3]               As stated in R.E.R. v. Canada (Minister of Citizenship and Immigration) 2005 FC 1339 at para. 9, all evidence with respect to an applicant’s claim for protection must be considered before a global credibility finding is made:

First, it is only fair and reasonable for parties to litigation to expect that the decision-maker will consider the evidence in its entirety, with an open mind, before making findings about the value to be placed on critical elements of the evidence. For the general proposition that the evidence must be considered in its entirety see Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989), 98 N.R. 312 (F.C.A.). In the present case, I find that the RPD was in error in not considering the whole of the evidence, including the wife's rape evidence and the cogent independent evidence about the apparent effects of the torture and rape in the form of photographs and reports, before making the critical finding of negative credibility against the principal Applicant (also see Gonzalez v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 422, and Herabadi v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1729).

 

[4]               In the present case, first a global negative credibility finding was made and then key pieces of independent corroborative evidence were rejected as a result. The following passage from the RPD’s decision details this result:

The claimant did not produce the letter and did not provide a reason for being unable to do so.  The panel does not believe the claimant’s explanation of having been forced to resign on account of her husband wanting her to lose her job.  The panel therefore rejects the claimant’s evidence on this issue.  The panel gives no weight to the e-mail of Adekunle and finds such a letter to be self-serving and inconsistent with the panel’s finding that no such incident ever occurred.

The panel also considered a psychological report presented by the claimant showing her to be suffering from post-traumatic stress disorder.  The panel does not accept the finding of the psychologist that her condition arose from the domestic abuse suffered while cohabiting with her spouse as the panel has made the credibility finding that she was not the victim of domestic abuse as alleged.  The panel concludes that if the claimant is subject to such a condition it must arise from causes other than those alleged by the claimant and the panel is unable to give the report any weight on the issue concerning the condition arising from domestic abuse as described.

 

[Emphasis added]

 

(Tribunal Decision, pp.8-9)

 

[5]               The psychologist who prepared the opinion rejected by the RPD first recounts the Applicant’s story of abuse, and then provides an expert opinion on her psychological state as it related to the story of abuse.  There is no debate that the story recounted by the Applicant to the psychologist is not evidence of the truth of what is said, but the opinion based on the story certainly is cogent evidence supporting the Applicant’s claim.  That is, the evidence of the Applicant’s psychological symptoms is capable of being found to support the conclusion that the Applicant is being truthful about the abuse she suffered since the symptoms are consistent with those to be expected of a woman who has suffered abuse.  The opinion, in part, reads as follows:

Psychological Functioning

Ms. Romiluyi is a woman who suffers from residual symptoms of Post-Traumatic Stress Disorder and symptoms of depression, secondary to her prolonged experience of domestic abuse. Her diagnosis is supported by the following symptoms:

-         Depressed mood, at times (feels better when in the presence of her children)

-         Crying spells (when alone)

-         Loss of interest in activities (including cooking)

-         Loss of sexual interest

-         Occasional nightmares (about people dying)

-         Ruminations about past trauma

-         Feelings of guilt (about her involvement with her common-law)

-         Avoidance of men(avoids meeting men and fears intimate relationships, because she expects more abuse)

-         Sense of hypervigilance, at times (feels her common-law may find her and harm her; otherwise, feels safe in Canada)

-         Discomfort with body image (due to sexual abuse; tries not to look at herself naked; however, this is apparently improving in Canada as her self-confidence increases)

-         Decreased concentration

Worth noting that Ms. Romiluyi’s symptoms were corroborated by her results on the Beck Depression Inventory-II and the Beck Anxiety Inventory, two widely used, reliable measures of the presence and intensity of the symptoms of depression and anxiety, respectively.

Concluding Remarks

Ms. Romiluyi remains terrified of returning to Nigeria, she fears her common-law tremendously….

                

(Tribunal Record, pp.163-164)

 

[6]               As a result of the exclusion of evidence contrary to law, I find the RPD’s decision is rendered in reviewable error.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

ORDER

 

Accordingly, I set aside the RPD’s decision and refer the matter back to a differently constituted panel for redetermination.

“Douglas R. Campbell”

FEDERAL COURT

 

NAME OF COUNSEL AND SOLICITORS OF RECORD

 

 

DOCKET:                                          IMM-7503-05

                                                           

 

 

STYLE OF CAUSE:                          STELLA ROMILUYI ET AL v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

PLACE OF HEARING:                    Toronto, Ontario

 

 

DATE OF HEARING:                      October 5, 2006

 

 

REASONS FOR ORDER:               CAMPBELL, J.

 

 

DATED:                                             October 5, 2006

 

 

 

APPEARANCES:

 

Johnson Babalola                                                                                  FOR APPLICANT

 

Martin Anderson                                                                                  FOR RESPONDENT

 

SOLICITORS OF RECORD:

 

Johnson Babalola                                                                                  FOR APPLICANT

Barrister and Solicitor

Toronto, Ontario

 

John H. Sims, Q.C.                                                                              FOR RESPONDENT

Deputy Attorney General of Canada