Docket: IMM-6820-13
Citation:
2015 FC 489
Ottawa, Ontario, April 21, 2015
PRESENT: The
Honourable Mr. Justice O'Reilly
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BETWEEN:
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MARTA KIDANE HIDAD
BETHEL SEMERE TEKIE
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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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JUDGMENT AND REASONS
I.
Overview
[1]
Ms Marta Kidane Hidad and her daughter, citizens
of Eritrea, claimed refugee protection in Canada based on fear of ethnic and
religious persecution. They travelled from Eritrea to Sudan and stayed until
they could make arrangements to flee to Canada on fake British passports.
[2]
Their claims were originally considered by an
immigration officer, who found that Ms Hidad had confirmed details of her birth
in Eritrea and her nationality. Because she had given confusing answers to some
questions, the officer referred her file for a hearing before a panel of the
Immigration and Refugee Board, with a recommendation that she receive a medical
and psychiatric assessment. The assessment revealed that Ms Hidad experienced
symptoms of post traumatic stress.
[3]
The Board concluded that Ms Hidad and her
daughter had failed to establish their identities. It found that their birth
certificates were irregular, either improperly obtained or fraudulent. Further,
the Board also found that Ms Hidad’s testimony was vague, and inconsistent with
documentary evidence about the situation in Eritrea. In the Board’s view, the
problems with her evidence, and her post traumatic stress symptoms, were not attributable
to her alleged persecution. Accordingly, the Board dismissed their claims.
[4]
Ms Hidad contends that the Board unreasonably
discounted the contents of the psychiatric assessment and erred in finding that
she and her daughter had not established their identities. She asks me to quash
the Board’s decision and order another panel to reconsider their claims.
[5]
I am satisfied that the Board erred in its
findings regarding the significance of the psychiatric assessment and the
claimants’ identities. I must, therefore, allow this application for judicial
review.
[6]
There are two issues:
1.
Did the Board unreasonably discount the
psychiatric assessment?
2.
Did the Board unreasonably find that the applicants
had not established their identities?
II.
Issue One - Did the Board unreasonably discount
the psychiatric assessment?
[7]
The Minister argues that the Board reasonably
downplayed the significance of the assessment in which the psychiatrist found
that Ms Hidad was experiencing concentration and attention deficits. Before the
Board, Ms Hidad had trouble remembering some basic information about her life
in Eritrea, and her entry into Canada, but the psychiatrist’s report did not
address those issues.
[8]
I disagree.
[9]
The psychiatrist noted that Ms Hidad was
experiencing “complex post-traumatic stress” due
to a risk of persecution, and that she would have difficulty testifying before
the Board. The doctor recommended that her condition be accommodated when she
testified. However, the Board gave little weight to the psychiatrist’s report
because it did not believe Ms Hidad had suffered persecution in Eritrea.
[10]
In general, where a psychiatrist’s report does
not help explain a claimant’s testimony, the Board is entitled to give it
little or no weight. On the other hand, where the report addresses issues that
should be taken into account in assessing the claimant’s credibility, it must
be considered (Min v Canada (Minister of Citizenship and Immigration),
2004 FC 1676 at paras 5-6).
[11]
Here, it appears to me that the Board
misconceived the relevance and significance of the psychiatric evidence (as in Mico
v Canada (Minister of Citizenship and Immigration), 2011 FC 964 at paras 45
and 49). Its purpose was not to corroborate Ms Hidad’s claims of persecution. Rather,
it helped explain the difficulties Ms Hidad might experience in testifying
before the Board.
[12]
In making its adverse credibility findings
against Ms Hidad, the Board did not appear to appreciate the real significance
of the psychiatric report. It correctly noted that Ms Hidad’s consistent account
of events to the psychiatrist could not help establish her credibility before
the Board. But it did not acknowledge that the assessment should be considered
in deciding whether Ms Hidad’s testimony was credible, an entirely separate
issue. The Board was entitled to disbelieve the source of the symptoms, but it
could not ignore the symptoms themselves.
[13]
Therefore, the Board’s credibility assessment
was unreasonable as it did not take account of the psychiatrist’s assessment of
Ms Hidad’s capacity to testify.
III.
Issue Two – Did the Board unreasonably find that
the applicants had not established their identities?
[14]
The Minister argues that the Board reasonably
found that the Ms Hidad and her daughter had not proved their identities. There
were numerous problems with their birth certificates. First, they were only in
English, not in either of Eritrea’s official languages (Tigrinya and Arabic).
Second, there was no space on the documents for the father’s name. Third, Ms
Hidad’s address was incorrectly recorded as being in Assab instead of Asmara.
Fourth, Ms Hidad did not state that she presented a hospital certificate when
she registered her daughter’s birth, as the documentary evidence indicates
would be required.
[15]
I disagree. There was evidence before the Board
addressing each of these issues, but the Board failed to consider it adequately.
[16]
The evidence showed that official documents can
be obtained in English, and that Ms Hidad had requested them in English. She
also explained that Assab was mentioned on her birth certificate because it was
the place of her birth, not the place of her then current residence. It was
incorrectly named as her daughter’s birthplace. The Board did not address Ms
Hidad’s testimony on this issue.
[17]
Regarding the absence of the father’s name, Ms
Hidad explained that a father’s name is included in a daughter’s full name, so
there was no need for a separate entry for it. The Board did not address that
explanation.
[18]
Finally, Ms Hidad explained that she was not
required to provide any documentation to obtain the birth certificates.
Documentary evidence shows that a hospital certificate is required for
registration of a child’s birth within three months of delivery. After that, it
can be obtained in person without a certificate.
[19]
In light of this evidence, the Board’s
conclusion that the identity documents presented by Ms Hidad and her daughter
were irregular, whether improperly obtained or fraudulent, was unreasonable.
IV.
Conclusion and Disposition
[20]
The Board failed to appreciate the extent to
which the psychiatric assessment of Ms Hidad might affect its credibility
findings, including its conclusion that Ms Hidad and her daughter had failed to
establish their identities. The result was an unreasonable dismissal of their
claims. I must, therefore, allow this application for judicial review and order
another panel of the Board to reconsider their applications for refugee
protection. Neither party proposed a question of general importance for me to
certify, and none is stated.
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