Date: 20110329
Docket: IMM-4757-10
Citation: 2011
FC 387
Toronto, Ontario,
March 29, 2011
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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CHARM LEANA JOHN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
The
present Application challenges a decision of the Refugee Protection Division
(RPD) in which the Applicant’s claim for protection was rejected, in large
measure, on the basis of a negative credibility finding. In my opinion the
decision is made in fundamental error and must be set aside.
[2]
The
Applicant’s claim is gender-related as a result of horrific physical, sexual,
and emotional abuse suffered at the hands of her male partner in St. Lucia.
[3]
With
respect to the hearing before the RPD, Counsel for the Applicant relied upon a
current psychological report which identified the Applicant as suffering from
post-traumatic stress disorder and, with respect to her ability to testify during
the course of the hearing before the RPD, contained the following key
paragraph:
Ms.
John experienced headaches in the past, but these no longer occur with
regularity. Other stress-related symptoms include occasional weakness, easy
fatigability, and problems with concentration and memory. Intrusive ideation
(i.e., memories of traumatic events and worries that erupt spontaneously into
consciousness) occurs frequently and interferes with reading and conversation.
At times, her mind simply goes blank. Ms. John has become distracted and
forgetful (e.g., she confuses dates and details of past events; she forgets
about items placed on the stove to cool she misplaces her keys). Concentration
and memory problems are common among people exposed to traumatic events.
Difficulties are exacerbated under pressure, such as arises in the high-stakes
context of a Refugee Hearing. Symptoms may arise during the Hearing in the form
of difficulty understanding questions, requests for questions to be repeated or
rephrased, inability to retrieve specific details of the past, or an apparent
inability to formulate a coherent response. Should such problems become
evident, it will be important to understand that they likely reflect the
disorganizing effects of traumatic stress rather than an effort to evade or
obfuscate.
(Applicant’s Application Record, pp. 43 –
44)
As I have previously found in the
decision in Kuta v Canada (Minister of Citizenship and Immigration) 2009
FC 687, when dealing with gender-related claims it is critical that the RPD pay
special attention to “Guideline 4: Women Refugee Claimants Fearing
Gender-Related Persecution: Guidelines issued by the Chairperson” in
reaching a determination. Guideline 4 states:
Women refugee claimants who have suffered
sexual violence may exhibit a pattern of symptoms referred to as Rape Trauma
Syndrome, and may require extremely sensitive handling.
[4]
In the
decision under review, the RPD makes the following key statements:
In making the assessment in this case, the panel considered the Chairperson’s
Gender Guidelines to ensure that warranted accommodations were made in
terms of questioning the claimant and the overall hearing process.
Before making my decision I took into consideration the psychological report. I
note that the report indicates that because of the trauma the claimant
experienced, she suffers from posttraumatic [sic] stress disorder and minor
depression, chronic depressed mood and is vulnerable to psychological damage if
she returns to St Lucia, and that the claimant requires counseling. I find that
the claimant has not provided evidence that counseling would not be available
to the claimant if she returned to St Lucia. In fact, documentary evidence
indicates that counseling is available to abused women in St Lucia. As well,
since the diagnosis is based on the claimant’s self reporting of the abuse and
on the basis of one interview, and because of my finding that the claimant is
not credible in certain aspects of her claim, I give this report little
evidentiary weight. The claimant could, for example, be stressed from other
causes, including earlier sex abuse and the negative relationships she had in Canada.
[…]
[Emphasis added]
(Decision, paragraph 5)
With respect to the finding that the
Applicant is not credible, in part, the RPD said this:
As well, I draw a negative inference from the claimant indicating that
[the Applicant’s male partner] Marcus was 18 when she moved in with him,
instead of 17, as this is not a fact that one would reasonably expect the
claimant to be mistaken about since 17 is being under age. The claimant
testified that she fell in love with Marcus when she was 18 and moved in with
him in 2002. The claimant was asked how old she was in 2002 and she testified
that she was 18. It was noted for the claimant that in 2002 she would have been
17 and not 18. The claimant had no response. I draw a negative inference
from the claimant’s inability to explain the inconsistency.
The
claimant was asked the date of Marcus’ birthday. The claimant at first testified
that it was July 4, 1985. Then she looked at counsel with a questioning look
and said sorry, it is in 1984 and that he will be 25 this July. It was noted
for the claimant that if he was born in 1984 that he would be 26 this July and
not 25. The claimant had no response. Since the claimant herself was born in
1985, it would be reasonable to expect that she would know whether
Marcus was born the same year as she, and that she would not make a mistake
about the year of his birth. I draw a negative inference.
[Emphasis added]
(Decision, paragraphs 14 and 15)
[5]
I agree
with Counsel for the Applicant that the quoted passages expose fundamental
errors, which render the decision under review as unreasonable.
[6]
First, it
is a reviewable error to first determine that a claimant is not credible and
then to use that lack of credibility as a basis for rejecting or giving little
weight to evidence that is submitted to corroborate the claimant’s testimony.
In the present case the psychological report is tendered, not to prove the
truth of the Applicant’s statements to the psychologist, but to prove her
current state of mind. The Applicant’s impaired state of mind can be found to
support the truth of her evidence of the abuse she suffered.
[7]
And
second, the Applicant’s state of mind was an important factor to be taken into
consideration by the RPD when evaluating her evidence: to do so constitutes a
practical application of Guideline 4. Thus, the RPD was required to take
care in evaluating the Applicant’s evidence through the lens of her
psychological make-up; it is obvious to me that this requirement was not met. I
find that the Applicant’s state of mind was not realistically and fairly
considered in reaching the negative credibility findings quoted above.
ORDER
Accordingly, the decision
under review is set aside and the matter is referred back to a differently
constituted panel for redetermination.
There is no question to
certify.
“Douglas R. Campbell”
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