Date:
20130416
Docket:
IMM-6584-12
Citation:
2013 FC 376
Ottawa, Ontario, April 16, 2013
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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EMERSON PJETRI
LIZE VUCAJ
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Applicants
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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 JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to subsection 72(1) of the
Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision
of the Refugee Protection Division [the RPD], dated June 8, 2012, where it
determined that the Applicants are not Convention refugees or persons in need
of protection.
I. Facts
[2]
The
Applicants, a mother and her son, are citizens of Albania. They claim
protection under sections 96 and 97 of the IRPA.
[3]
In
May 1999, Mr. Pjetri met a woman named Mira Ujka and they moved in at the
beginning of 2001. He asked her to be his wife in May 2001. Mira had kept their
relationship secret from her family.
[4]
The
Ujka family sought revenge because Mira had been promised to another man and
the family was dishonoured. They attacked Mr. Pjetri and a blood feud was
declared. His mother’s attempt to solve the dispute with the help of a priest
was unsuccessful.
[5]
In
August 2001, Mr. Pjetri left Albania for the United States. In 2006, he was
charged for assaulting his girlfriend. He came to the attention of the United
States Immigration authorities and removal proceedings were started and he
sought asylum. His attempt to stay in the United States failed and he entered Canada in February 2009.
[6]
As
for Ms. Vucaj, she married Kol Pjetri in 1975.They lived with Kol’s extended
family and he was abusive with her as well as her son throughout the course of
their marriage. However, she remained at Kol’s home and was used as a slave for
the rest of the family. She tried to run away once but her parents sent her
back to Kol’s house because they considered that she belonged to him and his
family.
[7]
In
2009, Kol died and Ms. Vucaj stayed with her late husband’s family who
continued to mistreat her. In 2010, she was beaten badly and required medical
treatment in hospital. Her relatives visited her and took her away from Kol’s
family. She remained in Albania for a short period of time and then left for Canada to join her son in February 2011.
II. Decision
under review
[8]
The
RPD took into consideration the Chairperson’s Guidelines Women
Refugee Claimants Fearing Gender-Related Persecution [the Guidelines]. At
the initial hearing scheduled, counsel for the Applicants requested that they
be declared vulnerable claimants and that a designated representative be
appointed. He submitted that they showed difficulty in remembering, which led
to difficulty in preparing for the hearing and that they both have psychological
assessments indicating that they suffer from Post Traumatic Stress Disorder
[PTSD], a major depressive disorder, severe for Mr. Pjetri and chronic for Ms.
Vucaj. Moreover, Mr. Pjetri was examined in May 2011 for psychiatric
assessment.
[9]
The
RPD denied the request for a designated representative as the Applicants both
demonstrated that they knew and understood why they were at the hearing and the
general purpose of it although they indicated that they met with counsel
several times but could not remember specifics of the instructions they gave.
The RPD, however, allowed Ms. Mary Metcalf to come help the Applicants and
bring notes to the hearing to fill in gaps when needed.
[10]
The
RPD accepted unsolicited post-hearing psychological evidence regarding the psychological
state of the Applicants. Both claims for protection were rejected on the basis
of lack of credibility.
[11]
First,
Mr. Pjetri stated in his written narratives that the Ujka family wanted to kill
him because of the dishonour he brought to their family as Mira was promised to
another man and that when he was assaulted by her brother, he mentioned that
his sister was Muslim. However, at the hearing he never mentioned Mira being
Muslim or promised to another man. Mr. Pjetri’s explanation that he forgot was
not found satisfactory by the RPD as he was allowed to have help from someone
during the hearing, the psychological assessment does not report effects on
memory and the religious aspect was prominent when the male claimed protection
in the United States. Moreover, in his narrative, he said that Mira’s brother’s
name is Altin but at the hearing he said it was Sandor. The narrative about how
Mira was taken away from him differs from the story he gave when he claimed
protection in the United States. Finally, Mr. Pjetri stated in his Personal Information Form [PIF] that he is too, Muslim. The RPD determined that these inconsistencies
cannot be found in a lack of memory as he recalled most of those facts when he
claimed protection in the United States in 2008 and that there is no evidence
of memory loss prior to 2012.
[12]
Moreover,
Mr. Pjetri claims that he was assaulted in the United States by a person who
indicated having links to the Ujka family. However, the report is dated March
14, 2007 and mention is made of the fact that he indicated that he was engaged
to the suspect’s sister 3 years before the attack. This report, therefore,
relates to a relationship in 2004 or 2003 and makes it impossible for it to
relate to Mira. In addition to this, Mr. Pjetri did not mention this fact when
he claimed protection in the United States in 2008.
[13]
Finally,
the RPD noted that Mr. Pjetri did not claim refugee protection from 2001 to
2006 and that during that time, he was arrested for assaulting his girlfriend
and for impaired driving, which are all activities that would expose him to a
danger of being discovered as an illegal resident in the United States and
there is no evidence of steps he took to regularize his status. The RPD,
therefore, drew a negative inference as to his well-founded fear of
persecution.
[14]
Mr.
Pjetri also alleges that he was attacked by the Ujka family in Canada but he never reported the assault to the police and there is no evidence that the attackers were
from Albania.
[15]
As
for Ms. Vucaj, her answers to questions regarding her situation in Albania were evasive. She sustains that she was hospitalized after being hurt by her
in-laws. However, she did not provide evidence of her stay in the hospital or a
letter explaining that the hospital records are not accessible at this time
because of computerization of the records, as she told the RPD. Ms. Vucaj
claims that the police attended at the hospital and drafted a report but she
does not submit any evidence related to this report.
[16]
Moreover,
she claims that she was hospitalized in late 2010 and after moved to her
mother’s relatives’ village. However, in her PIF, she states that she moved to
Gjon, her mother’s village in February 2010, which makes her testimony
inconsistent with her PIF. Her explanation that Gjon is a village in the
mountains, a place where she spent her whole life, was not found satisfactory
by the RPD.
[17]
Ms.
Vucaj did not give a clear answer as to whether she would be safe living in
Gjon but indicated that her husband’s family did not bother her. However, this
statement is inconsistent with her mother’s letter in which she explains that
her husband’s family would come and ask to take her back.
[18]
Moreover,
Ms. Vucaj states that she ignores when her husband died because she was hiding
with her mother’s cousins. Therefore, the RPD concluded that she did not live
with her late husband’s family during the two years before claiming protection.
Her statement that she divorced in 2004 is inconsistent with her PIF in which
she indicated that it happened in 1990. She gave contradictory answers as to
who initiated the divorce proceedings. Finally, the RPD pointed out that it
seems unfathomable that her son would allow his mother to suffer during those
years while he was living in the United States.
III. Applicants’
submissions
[19]
Mr.
Pjetri submits that the RPD’s decision not to allow “more leeway” in a case
where a claimant was not granted a designated representative is capricious.
Moreover, the RPD erred in concluding that the psychological report doesn’t
speak of memory problems and that therefore, such problems do not affect him as
anyone familiar with PTSD, such as a specialized tribunal, knows that one of
its key symptoms is an unwillingness to remember.
[20]
Ms.
Vucaj submits that the RPD’s adverse inference from her failure to attempt to
get documents disregards her psychological situation and aversion to all things
related to her trauma. Moreover, when making findings that her answers are
evasive and that she does not give specific dates, the RPD should have
considered that she has limited education and that she was treated as a slave
during most of her life. Moreover, the RPD’s determination that it is not
credible that her son would let his mother live in difficult conditions while
he was in the United States disregards whether he even knew of this situation
and if he was in a financial situation to help her as no questions were asked
to him.
[21]
Mr.
Pjetri submits that the RPD ignored important evidence that contradicts its
findings. He argues that the RPD did not fully address the psychological report
for what it said in his favour and its impact on the assessment of his
testimony such as whether it can explain an omission or lack of detail.
[22]
Ms.
Vucaj submits that at no point the RPD considered her psychological report when
making credibility findings regarding her claim. The RPD failed to consider
that the report which states that she is illiterate and has limited education
explains why she refers to specific events and not dates.
[23]
Ms.
Vucaj also argues that the RPD failed to apply the Guidelines.
[24]
The
Applicants both submit that the RPD erred in putting a higher onus on them than
it would have for other claimants because of the protective presence of Ms.
Metcalf.
[25]
Mr.
Pjetri submits that the RPD’s conclusion that his behaviour is not compatible with
that of a person who fears returning to Albania fails to consider whether his
actions are that of someone who is psychologically instable. This amounts to
failure to consider important evidence.
[26]
Mr.
Pjetri submits that before concluding that there was no evidence of memory loss
prior to 2012, the RPD should have asked him questions. As a child, he was
beaten and mistreated.
IV. Respondent’s
submissions
[27]
The
Respondent submits that the RPD made no error in denying the Applicants’
request for a designated representative as they showed that they understood the
purpose of the hearing. Although the RPD referred to Ms. Metcalf as a
“designated representative,” it is clear that this person was not in fact designated.
Given that this accommodation was provided at the hearing, it was open to the
RPD to rely on unexplained contradictions and inconsistencies in the
Applicants’ credibility assessment. The friend’s evidence was inconsistent and
did not address the RPD’s credibility concerns.
[28]
The
Respondent submits that the RPD rightly noted that the psychological assessment
of Mr. Pjetri does not mention memory issues. As for Ms. Vucaj, her
psychological report mentions cognitive limitations including memory but there
is no description as to how these limitations manifest themselves.
[29]
The
Respondent further argues that the evidence from the Mayo Clinic the Applicants
rely on was not before the RPD and therefore, it cannot be faulted for not
having addressed it. Moreover, psychology falls outside the RPD’s area of
expertise and it is reasonable for it to assume that the Applicants are not
suffering symptoms not listed in the reports. The onus was on the Applicants to
submit evidence regarding their ability to recount their stories.
[30]
The
Respondent is of the view that the RPD is entitled to determine whether the
Applicants’ psychological diagnoses provide the better explanation for the
inconsistencies and evasiveness in their evidence and it was sensitive to their
circumstances. Mr. Pjetri’s statements at the hearing regarding his conflict
with the Ujka family contradict his PIF and are nonsensical. Similarly, Ms.
Vucaj gave significantly contradictory answers regarding her divorce and
related events, which are central to her claim, and it was reasonable for the
RPD to make a negative credibility finding considering that she did not claim
an inability to remember. The RPD did not have to specifically mention the
psychological report, as it was not relied upon as an explanation for the
contradictions in her evidence.
[31]
The
Respondent submits that Mr. Pjetri tries to explain his conduct in the United States as being the result of his psychological state but there is no evidence
before the RPD that he had a psychological condition prior to 2012. He
similarly attempts to explain his lack of concern for his mother by reference
to his psychological state, without providing supporting evidence. Moreover,
such explanation was not before the RPD. It is reasonable to find that Mr. Pjetri
would have helped his mother when he was aware of the abuse she had suffered.
[32]
The
Respondent argues that although the Applicants assert that the RPD should have
asked questions about their psychiatric history, they bear the onus of
submitting evidence. Similarly, Ms. Vucaj explains her failure to obtain
documents as incidental to her traumatized state despite the fact that such
explanation was not provided at the hearing.
[33]
The
Respondent submits that the present case is different from Atay v Canada (Minister
of Citizenship and Immigration), 2008 FC 201, which is cited by the Applicants
as in that case, the RPD failed to consider whether the psychological report
had an impact on the credibility assessment and only used it to establish a
subjective fear or objective risk.
[34]
Finally,
the Respondent submits that the RPD did consider and apply the Guidelines and
it is to be noted that they do not excuse the Applicants from providing
credible and reliable testimony. In the case at bar, the concerns regarding Ms.
Vucaj’s testimony did not arise from her unwillingness to testify or
misapprehensions about her conduct but from the inconsistent accounts of her
divorce and related events and her failure to document key aspects of her
claim. The RPD reasonably found that the psychological report is not sufficient
to overcome issues of credibility.
[35]
The
RPD was entitled to determine whether the psychological evidence provided the
better explanation for the major deficiencies in their evidence and this Court
should not reweigh the evidence.
V. Issues
[36]
The
present application for judicial review raises the following issues:
1. Did
the RPD err in its consideration of the psychological evidence?
2. Did
the RPD adequately apply the Guidelines?
VI. Standard
of review
[37]
The Board’s credibility findings are reviewed on a standard of reasonableness and are
therefore accorded a high level of deference (Dunsmuir v New Brunswick, 2008 SCC 9 at para 53, [2008] 1 S.C.R. 190). Similarly, the RPD’s consideration of
the Guidelines should be reviewed on the standard of reasonableness (Cornejo v Canada (Minister of Citizenship and Immigration), 2010 FC 261 at paras 16-18, 2010 CarswellNat 521; Gonzalez
Duran v Canada (Minister of Citizenship and Immigration), 2011
FC 855 at para 12, 2011 CarswellNat 2579).
VII. Analysis
A. Did
the RPD err in its consideration of the psychological evidence?
[38]
The
RPD’s credibility assessments in light of the psychological reports are
reasonable for the following reasons.
[39]
First,
at the beginning of the hearing, the RPD ensured that the Applicants understood
the nature of the proceedings and the reasons why they were at the hearing. It
allowed Ms. Metcalf to be present at the hearing and to bring notes to help the
Applicants when needed, which is an exceptional measure. The RPD was, therefore, alert and
sensitive to the psychological situation of the Applicants prior to and
throughout the hearing (Karli
v Canada (Minister of Citizenship and Immigration), 2005 FC 276 at paras 13-14, 137
ACWS (3d) 1007).
[40]
Second,
Mr. Pjetri mischaracterizes the RPD’s statement relating to the credibility of
his allegation regarding his fear of the Ujka family. It mentioned that in
another situation, it might not draw a negative inference from the fact that a
claimant may forget an element relevant to his claim but that in the present
circumstances, the explanation provided that he simply forgot that Mira is
Muslim should be rejected. Indeed, the religious aspect of his claim was
fundamental to his refugee claim in the United States in 2008 and therefore,
the decision of the RPD to reject his explanation is reasonable.
[41]
The
Applicants again mischaracterize the RPD’s decision by arguing that it put a
higher onus on them because they had the assistance of Ms. Metcalf at the
hearing. The appointment of a person to help the Applicants was one among all
the reasons why the RPD is not “allowing more leeway.” In no way did it put a
higher onus on the Applicants because they were assisted by Ms. Metcalf. The
purpose of allowing her presence at the hearing was actually to overcome the
difficulties faced by the Applicants when telling their stories.
[42]
Mr.
Pjetri submits that the RPD did not provide any explanation as to whether his
psychological situation explains the omissions or lack of detail. This is what
was done throughout the decision and specifically at the beginning when the RPD
stated that it would usually allow for “more leeway” but that in the
circumstances, the contradictions and omission are too obvious to be
attributable only to PTSD (Krishnasamy
v Canada (Minister of Citizenship and Immigration), 2006 FC 451 at para 23, 2006
CarswellNat 969). Although the psychological
report indicates that Mr. Pjetri suffers from PTSD, the RPD found that such
consideration was not relevant to the inconsistencies noted by the RPD, which
is a reasonable determination (Paplekaj
v Canada (Minister of Citizenship and Immigration), 2012 FC 947 at paras 18-19, 221
ACWS (3d) 940).
Moreover, there was no evidence of memory loss in the case of Mr. Pjetri put
before the RPD that could explain the lack of credibility of his story.
[43]
As
for Ms. Vucaj, the RPD did address the content of her psychological report. It
specifically referred to it at the beginning of its decision and it was one of
the considerations for allowing Ms. Metcalf’s assistance at the hearing. The
RPD’s credibility findings were justified: her inability to provide dates was
one of the components of the RPD’s reasoning on credibility as a number of
other important factors justified an adverse inference as to the credibility of
her claim:
1. She
did not provide evidence to show that she was hospitalized or documents to
explain that it was impossible to retrieve her medical record in Albania.
2.
She
did not provide a copy of the report prepared by the police while she was at
the hospital.
3.
She
gave contradictory answers with respect to the date she was hospitalized and
the period during which she lived with her late husband’s family.
4.
She
gave inconsistent evidence as to who requested the divorce.
[44]
Although
memory problems are listed as one of the symptoms of Ms. Vucaj’s psychological
condition, it was reasonable for the RPD to determine that it is not a
sufficient explanation considering the numerous inconsistencies in her
testimony and her failure to provide supporting documents.
[45]
Furthermore,
a reading of the transcript shows that the RPD was alert and sensitive when
dealing with both Applicants. The RPD was aware of the state of mind of each Applicant,
relied when needed on Ms. Metcalf and was sensitive to the individuals when it questioned
them. This sensitive approach allowed the RPD to make an in-depth assessment of
the situation, consider the answers given by the Applicants and then make the
necessary pertinent credibility findings.
B. Did
the RPD adequately apply the Guidelines?
[46]
My
remarks contained in the preceding paragraph regarding the RPD’s sensitivity to
the Applicants’ situation also apply to its consideration of the Guidelines.
[47]
Moreover,
at the beginning of its decision, the RPD indicated that it applied the
Guidelines to assess Ms. Vucaj’s claim and there is no basis to show that
the Guidelines were misapplied. The RPD noted serious credibility concerns regarding
her story and the consideration of the Guidelines in the context of a
gender-related claim does not exempt Ms. Vucaj from providing credible and
reliable evidence to support her claim.
[48]
No questions for certification were proposed by the parties and
none will be certified.
JUDGMENT
THIS
COURT’S JUDGMENT is that this application
for judicial is dismissed. No question is certified.
“Simon Noël”
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