Date:
20130502
Docket:
IMM-6541-12
Citation:
2013 FC 459
Ottawa, Ontario,
May 2, 2013
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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JOZIKEE NDJIZERA
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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
JUDGMENT AND JUDGMENT
[1]
This
application for judicial review of a decision by the Refugee Protection
Division of the Immigration and Refugee Board (the Board) is granted. The
decision is set aside for breach of procedural fairness and, secondly,
unreasonable findings of fact.
[2]
The
applicant is a woman from Namibia who sought refugee protection on the basis
that she had been physically and sexually abused by her husband.
[3]
The
Board breached procedural fairness by denying a request from the applicant’s
counsel to reverse the ordinary order of questioning. The Board rejected the
request that the applicant’s counsel question her first, stating that he had
extensive experience in handling sensitive cases and would not require the
claimant to go into detail regarding incidents that could cause a re-emergence
of serious symptoms.
[4]
Generally
speaking, the presiding Board member questions a refugee claimant first.
However, in certain circumstances fairness requires that a claimant’s lawyer
begin the questioning: Thamotharem v Canada (Minister of Citizenship and
Immigration), 2007 FCA 198, para 51. The Chairperson’s Guidelines
Concerning Preparation and Conduct of a Hearing in the Refugee Protection
Division provides that the Board may vary the order of questioning in order to
accommodate a vulnerable person. While this will not be required in every
case, here the applicant provided a psychologist report demonstrating
post-traumatic stress disorder and a pattern of symptoms known as battered
women syndrome.
[5]
Reversing
the order of questioning is not intended to remedy a deficiency in the Board’s
experience or expertise. Rather, as the Gender Guidelines state, women who
have been subject to domestic violence may be reluctant to testify and face
special problems making their case to authorities. Regardless of the questions
asked, the hearing process itself may be expected to trigger the symptoms of
post-traumatic stress disorder. It is to be recalled the applicant provided
evidence that she experiences disorganized mental functioning and “inner
turmoil” which she “makes a valiant effort to conceal.”
[6]
In
this case, the order of questioning was detrimental to the applicant. She
provided greater details in response to questions from her counsel. The Board
commented on this negatively in the reasons for decision, faulted her for not
providing this evidence in response to his original questioning, and drew
unreasonable inferences as to her credibility.
[7]
Second,
the Board’s assessment of the evidence demonstrated a reliance on stereotypes
regarding gender-related persecution. On the issue of credibility, the Board
noted that, “[u]nlike many claimants who claim refugee status relating to
gender based mistreatment” the applicant speaks English, graduated from high
school and made her own decisions regarding her flight to Canada. The Board erred in considering these factors relevant to assessing the applicant’s
credibility, wrongly indicating that only less educated and meek women may be
subject to intimate partner violence.
[8]
There
were also errors in the Board’s plausibility findings. The Board faulted the
applicant for not seeking medical attention in Namibia with the statement that
that she could have done so without naming her assailant. The applicant had
testified that her husband followed her and retaliated against her when she
sought the assistance of elders in their community. The Board disregarded this
evidence.
[9]
It
was also unreasonable for the Board to expect independent corroboration of the
applicant’s testimony that her husband was a wealthy business person. There
was no basis in the evidence to expect that this individual has, for example, a
publicly traded company or some level of fame. It is difficult to understand
what type of independent corroboration the Board expected; the applicant
certainly cannot obtain her assailant’s financial records. The Board may not
draw a negative inference from the lack of corroborating evidence unless that
documentation would reasonably be expected: Rojas v Canada (Minister of Citizenship and Immigration), 2011 FC 849, para 6.
[10]
The
Board also faulted the applicant for failing to corroborate her testimony that
she is on a waiting list for therapy in Canada. The applicant provided a
psychologist report to corroborate her condition. The Board improperly
discounted this report on the basis that it had been prepared at the request of
applicant’s counsel and was therefore self-serving.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
granted. The matter is referred back to the Immigration Refugee Board for
reconsideration before a different member of the Board’s Refugee
Protection Division. There is no question for certification.
"Donald J. Rennie"
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