Docket: IMM-6097-14
Citation:
2015 FC 393
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, March 27, 2015
PRESENT: The Honourable Mr. Justice Locke
|
BETWEEN:
|
|
NERDA SAMEDY
JOSEPH
|
|
RICHESSE NEISSA
SAMEDY
|
|
Applicants
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Nature of the case
[1]
This is an application pursuant to subsection 72(1)
of the Immigration and Refugee Protection Act, SC 2001, c 27
(IRPA), for judicial review of a decision of the Refugee Protection Division
(RPD) of the Immigration and Refugee Board (IRB), dated July 24, 2014, rejecting
the claim for refugee protection made by the principal claimant, Nerda Samedy Joseph
(hereinafter the applicant), and her daughter, Richesse Neissa Samedy
(jointly the applicants), and determining that they are not “Convention refugees” or “persons
in need of protection” within the meaning of sections 96 and 97 of
the IRPA.
II.
Background
[2]
The applicant is a citizen of Haiti and has
two young daughters. The applicant’s younger daughter was born in Canada. The
applicant is also married to a Haitian citizen who is a judge in the city of Miragoâne.
The following overview is the account of the facts as alleged by the applicant.
[3]
The applicant’s mother died when the applicant
was born. The applicant therefore lived with her father during her childhood.
[4]
At the age of 6, the applicant was sexually
assaulted by bandits who wanted to punish her father for belonging to the Tontons Macoutes, an armed militia created under the Duvalier
regime.
[5]
At the age of 12, the applicant was raped a
second time by a group of men who had come to beat her father. She was
then cared for by two of her aunts, who criticized her for living with her
father. The applicant left her father’s residence to live with her aunts.
[6]
At the age of 17, the applicant went back to
live with her father because she believed the threats against his life had
ended.
[7]
In 2002, a year after the applicant chose to
live with her father, armed men entered her father’s home, raped her in appalling
circumstances and killed her father in front of her. The applicant then
wandered the streets for two weeks because the members of her family refused
to take her in, fearing for their safety. The applicant eventually stayed with a
friend of her father.
[8]
In 2004, the applicant began a relationship with
a police officer named Pierre Leroy (Leroy), who turned out to be jealous
and abusive. According to the applicant, Leroy behaved violently, humiliated
her in front of her friends, accused her of having relations with other men and
sometimes prevented her from going out.
[9]
In September 2004, Leroy beat the
applicant’s classmate, who had come to visit her. He also insisted that the
applicant move in with him, which she did.
[10]
The applicant ended her relationship with Leroy in
October 2004. After she told him that the relationship was over, he became
aggressive and allegedly threatened to kill her.
[11]
On December 31, 2004, Leroy ran into the
applicant on [translation] “the road to the airport” and tried to convince her to
resume their relationship. When the applicant refused, he told her that he
would try to find out where she lived.
[12]
In April 2005, the applicant met a lawyer
named Jean Maxon, who became her spouse. When Leroy learned of that relationship,
he began threatening the applicant, her spouse, her friends and her family.
[13]
In July 2007, Leroy forced his way into the
applicant’s home while her husband was out, hit her, forced her to get into his
car and left her on the side of the road far from her residence. The applicant
was pregnant at the time. She filed a complaint with the police, and Leroy was jailed
in July 2007.
[14]
After being released, Leroy continued harassing
the applicant by telephone.
[15]
In February 2012, Leroy forced his way into
the applicant’s home while her husband was out. He beat the applicant and
forced her to get into his car with her daughter, dragging the applicant by the
hair. After driving far away from the residence, Leroy threw the applicant out
of the car and beat her, leaving her alone and injured on the side of the road.
She was eventually taken to the hospital, where she stayed for three days.
[16]
The applicant filed a complaint with the police,
and Leroy was arrested and jailed again.
[17]
In April 2012, the applicant visited Canada with
her daughter. When she returned to Haiti, she learned that Leroy had been
released after bribing the authorities.
[18]
In May 2012, Leroy ran into the applicant
on the street and tried to convince her to leave her husband, which she refused
to do.
[19]
On the evening of May 11, 2012, while the
applicant was pregnant, Leroy forced his way into her home and pointed a weapon
at her daughter. He then kidnapped the applicant and her daughter and drove
them to an abandoned house, where he raped and beat the applicant in front of
her daughter. The kidnapping allegedly lasted three days, during which
time the police and the applicant’s husband looked for the kidnap victims.
[20]
Following the kidnapping, the applicant confined
herself to her home and posted a bodyguard at her door. However, Leroy
continued harassing her husband.
[21]
Realizing that Leroy was continuing to pressure
her friends to obtain her address and that the Haitian authorities were not
protecting her, the applicant left her country and arrived in Canada on June 28,
2012.
[22]
On August 9, 2012, the applicant’s
second daughter was born.
[23]
On August 14, 2012, the applicants filed
their claim for refugee protection.
[24]
Some of the above allegations were not included
in the applicant’s initial Personal Information Form (PIF). In her affidavit
dated August 13, 2013, the applicant made significant changes to her
initial allegations, adding that she had been raped at the ages of 6, 12 and 18.
In that affidavit, the applicant also alleged that she had been kidnapped and
raped by Leroy in May 2012.
[25]
On September 19, 2013, the applicant filed
an application with the RPD to be declared a “vulnerable
person” and to have a hearing with a female panel and a female interpreter
pursuant to Chairperson’s Guideline 8: Procedures With Respect to
Vulnerable Persons Appearing Before the IRB (Guideline 8). The
applicant relied on a report from her clinical counsellor, Renée Lemieux, dated
August 19, 2013, stating that she suffers from symptoms of post‑traumatic
stress disorder (PTSD). On October 2, 2013, the application was allowed by
the RPD.
[26]
The applicant was heard by the member on
March 25, May 26 and June 2, 2014.
III.
Decision
[27]
The RPD found that the applicant was not a
credible witness for the following reasons:
- There were several major omissions from the applicant’s initial
PIF. For example, the July 2007 incident was not mentioned, nor were
the other incidents that followed it but preceded the applicant’s
first visit to Canada. The applicant also failed to mention the rape
and forcible confinement in May 2012. The RPD rejected the
applicant’s explanation that she had felt uncomfortable explaining those
facts to her first counsel (a man), since one of the important
aspects of her claim for refugee protection concerned the forcible confinement
and violence she had suffered, events that she could explain to a man.
- The RPD found that the applicant had been in Canada for a few
months by the time she completed her claim for refugee protection and
therefore that, [translation]
“with the initial stress, upheaval and worries past
her, it would have been reasonable for her to
disclose . . . the fact that she feared being forcibly
confined.”
- The acknowledgment of complaint and the medical certificate
confirming the events of February 2012 state that the applicant was raped.
However, the applicant did not allege either in her PIF or at the hearing
that she had been raped during those events. In addition, the acknowledgment
of complaint refers to [translation]
“police officer Pierre Leroy” even though
Leroy was no longer a police officer when the complaint was filed. Moreover,
although the applicant said that she had filed a complaint with the
police, the acknowledgment of complaint indicates that the complaint was filed
by her husband.
- The arrest warrant and order of committal issued against Leroy
following the incident in February 2012 refer to a murder attempt,
whereas the applicant alleged that she had been kidnapped. The RPD found
that the applicant’s explanation that the Haitian authorities had seen the
events she went through as a murder attempt because of the bruises she had
was unsatisfactory.
- Because of the applicant’s lack of credibility, the RPD gave
little weight to the acknowledgment of complaint for the rape in
May 2012 and the letters from the applicant’s relatives.
- Certain allegations made by the applicant during the hearing contradicted
her PIF.
- The complaint filed with the police by the applicant’s husband
on May 12, 2012, for the kidnapping that took place during the night
of May 11 to 12, 2012, indicates that the applicant was forcibly
confined for a few days.
[28]
Finally, the RPD noted the applicant’s PTSD but
found that it did not originate with the events she had allegedly gone through in
Haiti, since the RPD attached no credibility to her allegations.
IV.
Issue
[29]
Only one issue will be dealt with in this
decision:
- Did the RPD err in assessing the applicant’s credibility?
V.
Analysis
A.
Standard of review
[30]
The question of whether the RPD erred in
assessing the applicant’s credibility is a question of mixed fact and law
subject to the standard of reasonableness (AB v Canada (Citizenship and
Immigration), 2014 FC 899, at para 21 (AB); Mico v
Canada (Citizenship and Immigration), 2011 FC 964, at para 20 (Mico);
Cato v Canada (Citizenship and Immigration), 2010 FC 1313, at
para 13 (Cato)).
B.
Consideration of the effects of post‑traumatic
stress
[31]
In light of the facts of this case, there is no
doubt that the applicant testified before the RPD while she was in a vulnerable
state. This is illustrated by the following uncontradicted passage from the
applicant’s affidavit:
[translation]
During the hearing
in May 2014, I had a headache in the middle of the hearing and asked to be
excused so I could take some medication. Near the end of the break, my counsel
came to get me. She later told me that she called me but that I did not hear her.
She told me that I took off my shoes in the corridor and that the member had to
call a security guard to take me back to the room. I learned that I had
disconnected and had asked if my father was in the room.
[32]
The RPD’s reasons for decision show that the key
negative inferences drawn by it are based mainly on the inconsistency of the
applicant’s story, her dissociation from the events and her inability to
explain the events in chronological order.
[33]
While it is not for an expert to determine if
the inconsistencies in a refugee protection claimant’s testimony can be excused
by post‑traumatic stress syndrome (Diaz Serrato v Canada (Citizenship
and Immigration), 2009 FC 176, at para 22), the fact remains that
caution must be exercised where there is a connection
between the inconsistencies or omissions identified by the RPD and the cognitive errors referred to in a medical or psychological report (Garay Moscol v Canada (Citizenship and Immigration),
2008 FC 657, at para 10).
[34]
The respondent argues that the RPD was not bound
by the psychological evidence because it found that the facts alleged by the
applicant were not credible. The respondent also argues that Chairperson’s
Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution
(Guideline 4) is not enough to make up for the applicant’s lack of
credibility.
[35]
However, the mere fact that the RPD mentioned
that it had considered Guideline 4 and the applicant’s medical and
psychological reports is not enough to make up for a lack of intelligibility in
a decision (Cato, at paras 18, 19 and 31).
[36]
Moreover, in the case of a person suffering from
PTSD, medical evidence is essential in analyzing the credibility of a refugee protection
claimant, since it helps explain the claimant’s memory problems; failure to
consider such evidence may be fatal to the reasonableness of the decision. In Cato,
at paras 30 and 31, Justice Scott stated:
The evidence
included articles that purport to explain the memory problems encountered by
sufferers of PTSD.
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.
[Emphasis added]
[37]
In Cato, Justice Scott held that the
RPD had erred in finding that negative inferences could be drawn about the
credibility of a refugee protection claimant suffering from PTSD based on the
claimant’s inability to recall the circumstances surrounding the alleged traumatic
events (at para 23). In this case, I am of the opinion that the RPD made a
similar error when it found that the applicant would normally have been able to
give her counsel and the RPD a coherent explanation of the events that were not
related to the rapes committed against her.
[38]
More recently, Justice Russell found that
the RPD’s failure to consider medical evidence indicating that PTSD sufferers “often lacked temporal sequencing” and “present memory losses that enlarge well beyond the most
horrifying traumatic perceptions” was a reviewable error (AB, at
paras 72-74, emphasis added). In this case, the essence of the RPD’s
decision is in fact based on the applicant’s inability to provide a
chronological and coherent explanation of the traumatic events she experienced.
In my opinion, the RPD unreasonably ignored the difficulty the applicant had remembering
the events she had experienced in chronological order.
[39]
Although the RPD can assess a health expert’s testimony
in light of its earlier negative credibility findings about a refugee protection
claimant, particularly where the facts on which the expert’s report are based
are found not to be credible (Napoleon v Canada (Citizenship and
Immigration), 2011 FC 822, at paras 17, 22, 23), a health expert’s
report based on a current examination of a patient’s symptoms must be given
more weight than a report based exclusively on a patient’s own account of what
happened (Mico, at para 54). In Mico, Justice Russell explained
that, while the RPD was not obliged to accept the medical evidence, it was
obliged to say why that evidence could not affect its conclusions.
[40]
Here, the psychotherapist states in her report that
she found that the applicant experienced episodes of dissociation and had difficulty
remembering various events in chronological order. In addition, the
psychiatrist’s report written by Luc Bourgon from the Ottawa Hospital indicates
that the applicant was hospitalized on February 28, 2014, following a
severe blackout and that complete neurological testing showed she was suffering
from severe PTSD. The RPD dismissed the value of the opinion of those practitioners
for two reasons: (1) the applicant’s lack of credibility; and
(2) the fact that the symptoms were not associated with the applicant’s
alleged traumatic experiences in Haiti. First of all, even assuming that the
applicant’s symptoms are not related to what she went through in Haiti, this
does not change the fact that those symptoms affect her ability to testify. Moreover,
finding that the inconsistency in the applicant’s statements makes it possible
to disregard the opinion of the practitioners who examined her amounts to
rejecting a diagnosis because of the symptoms. This is circular and illogical
reasoning.
[41]
It seems to me that such circular reasoning goes
against the reality reflected in section 8.1 of Guideline 8, which
states:
|
8.1 A medical, psychiatric, psychological, or other expert report
regarding the vulnerable person is an important piece of evidence that
must be considered. Expert evidence can be of great assistance to the IRB
in applying this guideline if it addresses the person's particular difficulty
in coping with the hearing process, including the person's ability to give
coherent testimony.
[Emphasis added]
|
8.1 Les rapports médicaux, psychiatriques et psychologiques ou
d'autres rapports d'experts portant sur la personne vulnérable constituent
des éléments de preuve importants qui doivent être examinés. Les
éléments de preuve d'experts peuvent être d'une grande utilité à la CISR pour
l'application des présentes directives s'ils portent sur la difficulté
particulière qu'éprouve la personne à composer avec le processus d'audience,
notamment sa capacité de témoigner avec cohérence.
[Soulignements ajoutés]
|
[42]
In my opinion, the RPD made a superficial and
inadequate analysis of the impact of the applicant’s psychological problems on
her ability to testify, thereby violating Guideline 8.
[43]
The respondent argues that the health experts’ reports
cannot establish the facts underlying the claim for refugee protection. However,
those reports can confirm the vulnerable state the applicant was in during the
hearing.
[44]
Furthermore, the RPD does not seem to have called
the applicant’s psychological problems into question (RPD’s Reasons, at para 70).
Yet it failed to analyze the documentary evidence dealing with the impact of
PTSD on an individual’s ability to answer questions involving memory. Hilary Evans Cameron
states the following in an article entitled “Refugee Status Determination and
Limits of Memory” (2014) 22 Int’l J Refugee L No 4, 469-511:
In addition, studies of soldiers,
peacekeepers, and crime victims show some of the most dramatic examples
of memory distortions for even central elements of lived events. One typical
study surveyed Desert Storm veterans shortly after their return home and
again about two years later. The veterans were asked 19 ‘yes/no’ questions
about their experiences in war. ‘Did you see other killed or wounded?’ Did you
see ‘bizarre disfigurement of bodies?’ Did you observe death of a close
friend?’ Eighty-eight percent changed at least one of their answers; just under
one in ten (8 per cent) changed a third of their answers (for the three
questions above, the change rate was 27 per cent, 33 per cent and 8.5 percent
respectively). The changes ran in both directions, with 70 per cent claiming
to have experienced something in the second interview that they had denied at
first, and 46 per cent specifically denying at the second interview something
that they claimed to have experienced at the first.
[Emphasis added]
[45]
According to Guideline 4, footnote 30,
refugee women who have been raped and are suffering from PTSD have symptoms that
include difficulty in concentration and memory loss or distortion. The RPD’s conclusion
that the applicant should have coherently explained her fear of being forcibly
confirmed in her claim for refugee protection because [translation] “the initial stress,
upheaval and worries” were past her therefore takes no account of the duration
and effects of PTSD as explained in the evidence submitted.
[46]
It is true that the RPD noted certain
contradictions that were objectively verifiable. For example, it is surprising
that the complaint filed by the applicant’s husband on May 12, 2012,
concerning the kidnapping that occurred during the night of May 11 to 12,
2012, states that the applicant was raped and forcibly confined for a few days.
However, the decision is not based on that objectively verifiable negative
inference.
[47]
Since it is clear from the reasons for decision that
the RPD relied mainly on temporal inconsistencies and memory problems as a
basis for disregarding the impact of the PTSD diagnosis on the applicant’s
ability to testify, I am of the view that the RPD engaged in a circular and
inadequate analysis in which it disregarded the experts’ diagnosis on the basis
of the symptoms associated with that diagnosis. Given the impact that the applicant’s
severe PTSD may have on her ability to give coherent testimony, this reasoning
is unreasonable.
[48]
For the reasons set out above, I am of the
opinion that the RPD’s analysis is incomplete and unreasonable and that this
application for judicial review must be allowed.
Email this Content