Date: 20101220
Docket: IMM-2252-10
Citation: 2010 FC 1313
Ottawa, Ontario, December 20,
2010
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
|
|
ANTHEA JANELL CATO and KOREY KYLE
JAYVORN CATO
|
|
|
|
Applicants
|
|
and
|
|
|
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
|
|
|
|
Respondent
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review submitted pursuant to subsection 72(1) of
the Immigration and Refugee Protection Act, SC 2001, c27 (the “Act”) of
a decision of the Refugee Protection Division (the “Board”), dated March 10, 2010,
wherein Anthea Cato (the principal applicant) and Korey Cato (the child applicant)
were found not to be Convention refugees or persons in need of protection.
[2]
The
relevant legislation is attached as Annex A to these reasons.
Background
[3]
The
applicants are a thirty (30) year-old mother and her three (3) year-old son,
both citizens of St. Vincent and the Grenadines.
[4]
Their
refugee claim is based on physical and emotional abuse from Edwin Johnson, the
principal applicant’s ex-husband and child applicant’s father.
[5]
The
principal applicant claimed that her ex-husband has been abusive from the very
beginning of their relationship in 1999. Despite the abuse, when she became
pregnant, she stayed with Mr. Johnson for financial support.
[6]
The
principal applicant also claims to have repeatedly reported the abuse to police
authorities in St. Vincent, who failed to take action.
[7]
The
applicants moved out when Mr. Johnson stopped providing support, at which time
the threats intensified. The principal applicant claims that, by then, she was
living in constant fear.
[8]
The
applicants first came to Canada in December 2006 for a three-week visit at
Christmas time and returned to St. Vincent.
[9]
On
December 15, 2007, the applicants returned to Canada on a
temporary resident permit and they claimed refugee protection on February 26,
2008.
The decision under
review
[10]
The
Board identifies credibility and lack of evidence that the applicants face a
serious possibility of persecution as determinative issues in this case.
Issues
[11]
With
respect to the credibility findings, the applicants contend essentially that
the Board erred in its assessment of the principal applicant’s credibility
because it failed to take into consideration her medical condition, post-
traumatic stress disorder (PTSD), and its effect on her ability to testify.
[12]
The
principal applicant also contends that there was a reasonable apprehension of
bias.
The standard of review
[13]
These
are questions of facts and mixed facts and law which attract a standard of
reasonableness. The Court has held that the Board’s decisions on both
credibility and lack of evidence of fear of persecution should be reviewed on a
standard of reasonableness (Aguirre v Canada (Minister
of Citizenship and Immigration), 2008 FC 571, 2008 FCJ No 732 (QL), at
para14). Accordingly, the Court will only intervene if the decision does not
fall within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law (Dunsmuir v New Brunswick, 2008 SCC 9,
2008 1 SCR 190 at para 47).
[14]
The
applicants submit that the member’s conduct at the hearing demonstrated bias
towards the principal applicant and her counsel and that such conduct
compromised the integrity of the hearing. The Supreme Court has found that
issues of procedural fairness attract a standard of correctness (Khosa v Canada (Minister
of Citizenship and Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339 at para 43),
in which case this Court will intervene if it finds that there was a reasonable
apprehension of bias.
Analysis
[15]
Did
the Board err in dismissing the principal applicant’s claim on the basis of a
lack of credibility?
[16]
The
principal applicant submits that the Board erred in law for not having taken
into account the particular characteristics of the individual and that the
Board relied on errors to impugn her credibility.
[17]
The
principal applicant also submitted in evidence that was before the Board, a
letter from her social worker, a letter from her psychiatrist attesting to the
fact that she is suffering from PTSD and a copy of a medical prescription, all
of which the principal applicant claims corroborate her testimony with respect
to her fear of persecution from her ex-spouse.
[18]
The
Board claimed that it took into consideration the chairperson’s Guidelines
on Women Refugee Claimants Fearing Gender-Related Persecution in reaching
its decision in this case. It also claims to have taken into consideration the
letter from the principal applicant’s psychiatrist, Dr. Janique Harvey.
[19]
However,
the Board found that the principal applicant had contradicted herself in her
testimony, had made several omissions in her PIF and was adjusting her
testimony, thereby reinforcing the Board’s conclusion that she was not credible
with respect to her fear of persecution from her ex-spouse if she returned to St.
Vincent.
[20]
The
Board indicated in its reasons that both the principal applicant’s testimony
and that of her mother “leave many questions unanswered about the female
claimant’s actual intentions during her trip in 1999 and about her refusal to
recall the reasons why she was not allowed entry into Canada at the time”.
[21]
The
Board’s negative credibility findings rest partly on erroneous findings of
facts.
[22]
The
Board outlined the principal applicant’s testimony about an incident in 2003
when she had sought police protection as an example of how the principal
applicant was adjusting her testimony. The Board concluded that the principal
applicant had adjusted her testimony in recounting the incident because she had
forgotten that she had claimed to be living with her ex-husband at the time of
the incident. The Board found that the principal applicant had never lived with
her ex-husband because there were no corresponding address changes in the PIF
when, in fact, the reason for the lack of corresponding address changes is that
there are no civic addresses in the village of Biabou where the principal
applicant resided before, during and immediately after the relationship with
her son’s father.
[23]
The
Board determined that the principal applicant’s PTSD did not contribute to her
inability to recall the details of her December 1999 visit to Canada because
the trip preceded the abuse from her ex-husband when, in fact, the principal
applicant was already pregnant at the time of the trip and had been in the
abusive relationship for several months.
[24]
The
member also found that the principal applicant’s willingness to phone her
ex-husband from Canada in December of 2007 so that her son could speak
with him was incompatible with the alleged continuing threats. The principal
applicant states that there is nothing incompatible in her former willingness
to maintain her son’s contact with his father, and that she continues to suffer
from PTSD.
[25]
The
respondent’s counsel did not address these specific errors of facts in her
submissions, but concentrated on discrepancies between the principal applicant’s
PIF and her testimony and, more particularly, a specific incident where her
ex-husband would have showed up at her place of work and tried to kill her, as
well as the 1999 trip to Canada, neither of which was mentioned in the PIF.
[26]
The
principal applicant had provided an explanation in both instances. With respect
to the attempted murder, the principal applicant stated that she had told her
lawyer and didn’t know why it was not described in the PIF, and as to the 1999
trip, her counsel explained that her inability to recall the precise details
was a result of PTSD.
[27]
The
Federal Court of Appeal stated in Siad v Canada (Secretary of State),
[1997] 1 FC 608, 123 FTR 79, that “the tribunal is uniquely situated to assess
the credibility of a refugee claimant; credibility determinations, which lie
within ‘the heartland of the discretion of triers of fact’ are entitled to
considerable deference upon judicial review and cannot be overturned unless
they are perverse, capricious or made without regard to the evidence”.
[28]
At
the hearing before this Court counsel for the principal applicant focused
primarily on the Board’s failure to properly consider the evidence provided
with respect to the memory problems encountered by sufferers of PTSD.
[29]
Counsel
for the principal applicant submitted that the medical evidence offered a
plausible explanation that could rebut the negative inference with respect to
the principal applicant’s credibility, and so consideration of the medical
evidence was of central importance to the credibility finding and to the
applicant’s claim.
[30]
The
impugned decision makes no mention of the evidence that was filed by counsel
for the principal applicant at the December 23rd continuation. The evidence
included articles that purport to explain the memory problems encountered by
sufferers of PTSD.
[31]
Whilst
this Court has held that there is no obligation to comment on every document
presented in evidence, it is also clear that there exists an obligation to
comment on documentary evidence presented when such evidence goes to the very
heart of the matter, as in this case (Gill v Canada (Minister of
Citizenship and Immigration) 2003 FCT 656 at para 16). The document
intended to explain the memory problems encountered by the principal applicant.
[32]
It
is apparent in this case that the Board misconstrued some key facts, and more
importantly, ignored some key evidence in concluding that the principal
applicant was not credible.
[33]
This
Court therefore finds that these errors are fatal to the Board’s decision.
[34]
In
view of this conclusion, the Court finds no need to decide on the merits of the
other argument presented by the principal applicant, that of reasonable
apprehension of bias.
[35]
The
application for judicial review is allowed.
[36]
No
question was proposed by the parties for certification pursuant to subsection
74(d) of the Immigration and Refugee Protection Act, and I agree that no
such question will be certified.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for
judicial review is allowed. The Board’s decision dated March 10, 2010 is set
aside. The claim is returned for reconsideration by a newly constituted panel;
and
THIS COURT’S FURTHER
JUDGMENT is that no question of general interest is certified.
“André
F.J. Scott”
Email this Content