Docket: IMM-678-15
Citation:
2015 FC 1326
Ottawa, Ontario, November 27, 2015
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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CRUZ ALONSO
MENDEZ SANTOS
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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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JUDGMENT AND REASONS
I.
Overview
[1]
The Applicant is a 28 year old Honduran citizen
who seeks refugee protection in Canada due to fear of his violent and abusive
step-father and the MS-18 gang, of which his step-father is the local leader in
Cacahuapa, Comayagua, Honduras. He arrived in Canada on July 31, 2014, after
crossing the Ambassador Bridge in Windsor, Ontario, and immediately claimed
protection. Because the Applicant has relatives in Canada, his claim was
determined to be an exception to the safe third country rule and, consequently,
referred to the Refugee Protection Division [RPD] of the Immigration and
Refugee Board.
[2]
In its decision dated January 12, 2015, the RPD
found the Applicant not to be credible and therefore determined that he was
neither a Convention refugee nor a person in need of protection. The Applicant
now applies for judicial review of the RPD’s decision pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA].
He asks the Court to set the RPD’s decision aside and return the matter to the
RPD for re-determination by another member of the RPD.
II.
Facts
[3]
The Applicant is the third of his mother’s 11
children. In 1994, his family began living with Gabriel Virgilio Castro
Turcios, the Applicant’s step-father. One night in 1994, Mr. Turcios came home
drunk and violent, and the family hid in the forest for the night; the
Applicant, then about seven years old, snuck back into the house for blankets
but was caught by Mr. Turcios, who beat him and chased him until the Applicant
tripped and hit his head on a rock. The Applicant’s mother took him on
horseback to the hospital where the Applicant remained in a coma for six days.
The Applicant says he experiences flashbacks, nightmares, and sleepwalking as a
result of this injury.
[4]
When the Applicant was 10, he witnessed Mr.
Turcios whipping his mother with a belt. Mr. Turcios would also burn the
Applicant’s family members with cigarettes and he impregnated the Applicant’s
half-sister, Delmy, who is Mr. Turcios’ daughter. One of the Applicant’s
brothers, Leonel, called the police one time when Mr. Turcios beat up the
Applicant’s mother, but no police response was forthcoming. The Applicant and
his siblings would sometimes escape the violence by staying in their uncle’s
house in a village about an hour away from their house; that place of refuge
disappeared when their uncle sold the property and moved to the United States.
When the Applicant was 13, he witnessed a murder by gang members of a man he
knew. When the Applicant was 14, Mr. Turcios expected the Applicant to join the
MS-18 gang.
[5]
In 2004 and 2006, two of the Applicant’s
brothers, Angel and Leonel respectively, fled to the United States. In May
2006, when the Applicant was 19, he too fled to the US after hearing rumors
that the MS-18 gang was going to kill him. He entered the US illegally via
Mexico in May 2006; he spent two months in Texas, and then went to North
Carolina where Angel, his older half-brother, lived. A friend of his mother
also lived there. The Applicant did not apply for refugee protection after he
arrived in the US because the son of his mother’s friend had been deported to
Honduras after a failed refugee claim. Also, the Applicant’s younger brother,
Leonel, had been in immigration detention in January 2006 because he was a
minor, and was told by immigration officials it was not in his best interests
to apply for refugee protection. The Applicant thus decided to remain illegally
in the US.
[6]
While in the US without status, the Applicant
witnessed the murder of a man called Ricardo Torres in March 2012, and the
attempted suicide of his mother’s friend, who was later convicted of the murder
of Ricardo Torres. In January 2014, the Applicant was robbed and assaulted by a
woman with a taser gun; his call to the police resulted in the woman’s arrest.
The police did not check the Applicant’s immigration status during the arrest,
but this incident increased his concern about his undocumented status in the
US. Consequently, as a result of his experiences in the US, and because his
brothers Angel and Leonel were now in Canada, the Applicant came to Canada in
July 2014 and sought protection.
[7]
On September 24, 2014, the Applicant appeared
for his hearing before the RPD. The Applicant testified that his step-father
was still threatening him despite his departure from Honduras; one time when
the Applicant called his mother Mr. Turcios grabbed the phone after he found
out the Applicant was on the line and said he was “just
waiting for the day I return, to kill me.” His testimony overall was
such that his legal counsel was afforded time to obtain and subsequently submit
psychological reports as to the Applicant’s mental capacity.
[8]
On November 3, 2014, the Applicant was seen by
Dr. Yawny-Burnett, a psychologist, who found that the Applicant was suffering
Post Traumatic Stress Disorder [PTSD], moderate depression, and severe anxiety.
On November 24, 2014, the Applicant completed further psychological testing
with Dr. William Ross who, after examining and testing the Applicant for about
eight hours, found that the Applicant’s Intelligence Quotient fell into the “severely Intellectually Deficient” range (i.e. a full
scale IQ of 49 (< 1st percentile) in relation to similarly-aged population),
and in other areas the Applicant was found to be “moderately”
or “mildly” Intellectually Deficient. Dr. Ross
noted the discrepancies in the Applicant’s self-reported history and expressed
caution about the accuracy of events as recounted by the Applicant. Dr. Ross
concluded that there was little doubt that the Applicant has suffered trauma and
diagnosed him as suffering from PTSD and major depressive disorder. These
psychological reports were submitted to the RPD which then proceeded to render
its decision in reasons dated January 12, 2015.
III.
The RPD’s Decision
[9]
As part of his case before the RPD, the
Applicant filed a copy of the personal information form [PIF] filed by his
brother Leonel in connection with Leonel’s successful claim for Canada’s
protection; he also filed a copy of the RPD’s reasons for its decision in
Leonel’s case. Because Leonel had not mentioned the Applicant in his PIF or in
his narrative, the RPD gave no weight to these documents and drew an adverse
inference from the fact the Applicant had filed these documents.
[10]
After finding that the Applicant’s claim did not
have a nexus with a Convention ground, the RPD next assessed the Applicant’s
credibility. It acknowledged the Maldonado presumption that a claimant
speaks the truth unless there is reason to doubt a claimant’s truthfulness (Maldonado
v Canada (Minister of Employment and Immigration), [1980] 2 FC 302). The
RPD found, however, that the Applicant presented several credibility problems,
the most significant of which was his continuing to live in the family home for
five years, from ages 14 to 19, apparently without serious harm coming to him
from either the gang or Mr. Turcios. In the RPD’s words, this was “not tenable, plausible, reliable or convincing. Instead, I
find it is dubious and even absurd.”
[11]
Other credibility issues included: the “ability of the claimant to think of his feet… contrary to
the suggestions made by various reports…”; the Applicant’s inability to
state whether he was 17 or 19 when he left Honduras, with his vague and
inconsistent responses in this regard leading to an adverse inference; Leonel’s
failure to mention the Applicant was inconsistent with the Applicant’s story,
leading to an adverse inference; the Applicant’s failure to make an asylum
claim during the eight years he was in the US, including his failure to contact
an uncle in New York, led to a further adverse inference; the lack of clarity
and cogency in the Applicant’s testimony as to how often and for how long he
was absent from his home in Honduras; the inconsistent dates given by the
Applicant to the psychologist about when he left Honduras led the RPD to make
another adverse inference; and the Applicant’s failure to give satisfactory
evidence or corroboration of his problems with the MS-18 also led to an adverse
inference.
[12]
The RPD determined that, although the
Applicant’s eight years in the US without making a claim there for asylum was
not determinative, it was nonetheless important in assessing his credibility
and subjective fear. The RPD found that the Applicant’s failure to claim in the
US and his failure to explain the delay negated his subjective fear. The RPD
stated that, contrary to the Applicant’s explanation, it would be unreasonable
for a person fleeing for their life to do nothing while facing the prospect of deportation.
[13]
With respect to the psychological reports, the
RPD found that Dr. Yawny-Burnett’s diagnosis of PTSD, moderate depression, and
extreme anxiety, was insufficient to offset the negative credibility findings,
particularly as there were discrepancies in the Applicant’s self-reported
history. As for Dr. Ross’s report, the RPD said he had not conducted any tests
to expose deliberate attempts to fabricate evidence, and also noted that Dr.
Ross had wondered whether the Applicant’s account had been entirely accurate.
The RPD assigned little weight to the psychologists’ reports, stating that:
[61] … It may be that the claimant
suffers from depression, anxiety and post-traumatic stress and is of the low
end of average intelligence; however, I find that the claimant was intelligent
enough to make his way from Honduras to the US via Mexico alone, live and work
illegally in the US for 8 years and make his way to Canada alone. For these
reasons, I find that the psychological reports do not offset my credibility
findings.
[62] A psychological report “cannot
possibly serve as a cure-all for any and all deficiencies in a claimant’s
testimony” and where such a report is submitted and there are concerns
regarding the claimant’s testimony, “opinion evidence is only as valid as the
truth of the facts on which it is based.” I find that I can assign little
weight to the psychological reports tendered after the hearing, with respect to
the claimant’s credibility. [footnote omitted]
[14]
Lastly, the RPD found there were no compelling
reasons with respect to the Applicant’s claim. He did not meet the requirement
of subsection 108(4) of the IRPA because the RPD did not find him to be
a Convention refugee or person in need of protection when he left Honduras.
Furthermore, the RPD found that the head injury suffered by the Applicant when
he was seven years old was not a compelling reason, and that he did not suffer
from any psychological trauma that constitutes such a reason.
IV.
Analysis
[15]
Although the Applicant raises several issues concerning
the RPD’s decision, this application for judicial review boils down to just one
issue: was the RPD’s decision reasonable?
[16]
Although matters of credibility “are at the very heart of the task Parliament has chosen to
leave to the RPD” (Rahal v Canada (Citizenship and Immigration),
2012 FC 319 at para 60 (available on CanLII)), and while it is well established
that the Court affords significant deference to the RPD’s findings with respect
to credibility and the assessment of evidence, the RPD’s assessment of the
Applicant’s credibility in this case was unreasonable and cannot be justified
in the face of the two psychologists’ reports. The psychologists’ reports
before the RPD, notably that of Dr. Ross, belie the RPD’s findings that the Applicant
was “intelligent enough” to make his way to Canada
and that he “is of the low end of average intelligence”.
These findings fly in the face of Dr. Ross’ report which, in the penultimate
paragraph, concluded that:
Mr. Mendez Santos presents a confusing
history which can be explained, in part, to significant limitations in
cognitive ability and mnemonic impairment. Significant deficits in his
immediate and short-term recollection of both verbal and visually-present
information are noted which could conceivably stem from cranial trauma or from
an impoverished, unenriched early environment. In all likelihood, some
combination of the two would be most applicable to this man.
[17]
I agree with the Applicant that Dr. Ross’ report
provides reasonable explanations for the lack of coherency in the Applicant’s
testimony. The RPD’s analysis of Dr. Ross’ report was selective and downplayed
the Applicant’s significant cognitive impairments. The RPD failed to appreciate
the significance of Dr. Ross’ report when it stated that the Applicant “is of the low end of average intelligence.” A fair
and fulsome reading of this report shows that the Applicant’s cognitive
abilities are far from the low end of average intelligence; at best, they are
those of a child in grade 2 or 3, and the Applicant’s capacity to understand
verbally-presented information in sentence format is at the level of a child in
kindergarten.
[18]
In this case, the RPD’s adverse credibility
finding was not reasonable because the psychological conditions described in
the Ross report provide an explanation for why the Applicant’s testimony was at
times contradictory, vague and lacked clarity and the RPD failed to reasonably
weigh this objective and independent evidence against their credibility
concerns. This report was based on independent and objective testing. Dr. Ross
conducted an array of tests in order to assess the Applicant’s mental capacity,
notably, Wechsler Adult Intelligence Scale-IV, Wechsler Memory Scale-IV,
Raven’s Standard Progressive Matrices, and other visual and verbal tests. The
RPD faulted Dr. Ross and his report because “he did not
conduct any tests to expose deliberate attempts to fabricate evidence,” despite
Dr. Ross finding that “the overall effort put forth by
Mr. Mendez Santos is viewed to be such that the obtained results are considered
a reasonably accurate reflection of his current functioning.” Presumably,
the RPD may have given more weight than it did to Dr. Ross’ report had he
conducted a polygraph test as well.
[19]
Neither Dr. Yawny-Burnett’s report nor that of
Dr. Ross is based essentially or only upon the Applicant’s story. Each report
is based on clinical observations drawn independently of the Applicant’s
credibility. This uncontradicted psychological evidence suggests that,
regardless of whether the Applicant was fabricating his self-history, he
nonetheless has serious deficiencies in his cognitive capacities. There was no
other evidence before the RPD about the Applicant’s intellectual deficiencies
beyond the panel member’s own observation of the Applicant’s testimony and his
responses to questions. It was not reasonable for the RPD to discount the
psychological evidence in this case when that very evidence provides reasonable
explanations for the lack of coherency in the Applicant’s testimony. The RPD
essentially performed its analysis backwards: instead of using the
psychological reports to assess the Applicant’s credibility, the RPD drew
conclusions about credibility and then used those conclusions to throw away the
reports (see: Belahmar v. Canada (Citizenship and Immigration), 2015 FC
812, at paras 7 to 9).
V.
Conclusion
[20]
For the reasons stated above, this application
for judicial review is allowed and the matter is returned for re-determination
by a different panel member of the RPD. Neither party suggested a question for
certification; so, no such question is certified.
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