Docket: IMM-7680-14
Citation:
2015 FC 812
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Montréal,
Quebec, July 2, 2015
PRESENT: The Honourable Mr. Justice Martineau
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BETWEEN:
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SABRINA BENZABA
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MUSTAPHA
BELAHMAR
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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
[1]
The applicants are challenging the legality of a
decision of the Refugee Protection Division (RPD) of the Immigration and
Refugee Board, dated October 23, 2014, in which the RPD held that the applicants
were neither Convention refugees nor persons in need of protection under
sections 96 and 97 of the Immigration and Refugee Protection Act, SC
2001, c 27.
[2]
The applicants are citizens of Algeria. They say
that they fear returning to their country because an influential businessman working
for the national police (agent of persecution) threatened them with death
following a favourable judgment received on October 24, 2010, by the
applicant against him. On June 12, 2011, the applicant allegedly received
an initial threatening phone call; a few weeks later, they applied for a visa. A
second threatening call was made at about that time. On October 6, 2011,
the applicant learned that a police officer was searching for him in Annaba. The
applicant went to the police station, where he was allegedly told that there
was nothing the police could do for him, that the agent of persecution was
dangerous and that he should not leave his house. The same day, the applicants
purchased their plane tickets for Canada and left Algeria on October 14,
2011. However, the applicants did not claim refugee protection immediately. After
six months, they had their tourist visas extended. On April 24, 2012, the
applicant learned that the agent of persecution was circulating freely;
accordingly, on May 17, 2012, the applicants filed a claim for refugee
protection.
[3]
The claim for refugee protection was rejected without
the RPD having really considered the issue of state protection, although it did
note that, given the judgment of October 24, 2010, [translation] “the
Panel believes that the applicant was able to get justice in his own country”.
The RPD held that the applicants were not credible for the majority of their
allegations and that they lacked a subjective fear of persecution. The RPD
accepted the applicant’s testimony and evidence regarding the fraud committed
by the agent of persecution and the judgment that the applicant had obtained
against him. However, the RPD noted certain inconsistencies and contradictions in
the applicant’s testimony with respect to the threatening calls and the
complaints allegedly filed with the police. The RPD also noted that before
receiving the initial death threat on June 12, 2011, the applicants had
already received, on June 3, 2011, an invitation from the female
applicant’s sister in Canada to come visit. In fact, the applicants submitted
their visa application on July 1, 2011, but stated that they did not make
their decision to leave the country until October 6, 2011. The RPD also
criticizes the applicants for having waited seven months after arriving in
Canada before claiming refugee protection. Finally, the RPD concluded that the
medical and psychological reports filed by the applicant regarding his medical
condition (epilepsy) and mental condition (memory problems) did not cast doubt
on the applicant’s ability to testify.
[4]
The applicants criticize the RPD member for
handling their file improperly; for presumptuously stating that the applicant
had been able to obtain justice, when the agent of persecution was a police
officer and an influential businessman; and for rejecting their claim for
having found that the applicant lacked credibility on the basis of
contradictions and inconsistencies in his testimony, while the medical and
psychological reports filed in evidence show that the applicant has epilepsy
and that his memory and ability to testify are greatly affected. The applicants
also note that the RPD never raised its doubts as to whether the applicant had
recently had epileptic seizures and that it therefore never gave them an
opportunity to make submissions on that subject. The applicants allege that the
psychological report clearly demonstrates the applicant’s problems with his
memory and cognitive ability. The RPD called into question the fact that the
applicant had epilepsy because he failed to mention it in his claim for refugee
protection. However, that fact was relevant not to the basis of the claim, but
to the assessment of his oral testimony. The RPD also acted unreasonably in
dismissing the relevance of the psychological report because of its proximity
in time to the hearing. On the contrary, it was normal for the psychological
assessment to take place as close to the hearing date as possible to ensure that
the evaluation of the applicant’s ability to testify was not outdated or
obsolete. Accordingly, the decision is unreasonable. According to the
applicants’ learned counsel, it is difficult to speculate on what the RPD might
decide if the claim for refugee protection were to be returned to it. The role
of this Court in judicial review is not to reassess the evidence or to
substitute our own opinion for that of the RPD (Hughes v Canada (Attorney
General), 2014 FCA 43 at para 11).
[5]
The respondent essentially contends that the
RPD’s findings were reasonable. According to the respondent, it was reasonable
for the RPD to give no weight to the medical report because it was brief; the most
it demonstrated was that the applicant may have had infantile epilepsy and it
did not corroborate the fact that the applicant had experienced epileptic
seizures recently. As for the psychological report, the respondent contends
that it was reasonable to set it aside because the applicant had not consulted
a psychologist at the time of his seizures in 2012 and 2013, instead waiting
until shortly before the date set for the hearing, and also because the
psychological report is not corroborated by the medical report. In the
alternative, even if the RPD committed a reviewable error, this does not affect
the validity of the RPD’s other findings, and the applicants have failed to
show how the alleged memory problems could have affected his ability to
testify. It is clear that there are many contradictions. The rejection is also
based on other important factors. The applicants lacked subjective fear because
they had taken their first steps toward obtaining visas before the threats
began and because they had waited seven months before making a refugee claim in
Canada, and it is possible that the RPD would have reached the same conclusion
had it afforded a certain weight to the medical and psychological reports. Therefore,
the application for judicial review should be dismissed.
[6]
It is well established by the case law that this
Court must show significant deference to the RPD’s findings regarding
credibility and the assessment of evidence. However, in this case I am of the
view that the RPD committed a reviewable error by failing to give any weight to
the medical and psychological reports and that this was determinative in this
case. First, with respect to the medical report, even if it is brief and does
not explicitly state that the applicant is currently experiencing epileptic
seizures, it clearly states that the applicant consulted the specialist three
times and that he is currently taking medication (Epival) for the treatment of “a
presumed Juvenile Myoclonic Epilepsy”, which suggests that the applicant has a
serious illness that could affect his memory, according to the evidence in the
record. Nothing in the evidence indicates that the specialist based this
diagnosis and treatment solely on what he was told by the applicant rather than
on objective factors. Second, with respect to the psychological report by Dr. Marta
Valenzuela, nothing suggests that the psychologist was consulted for treatment,
but rather for a diagnosis of the applicant’s ability to testify, and the fact
that the applicant waited until shortly before the hearing to obtain this
report should not have resulted in a negative inference. Moreover, despite the frequency
with which the RPD mentioned the precise dates of the applicant’s alleged
epileptic seizures in 2012, they are not relevant. Because Dr. Venezuela
took into consideration objective factors over and above what the applicant
told her, the RPD should not have set aside the psychological report on the basis
of its finding with respect to the applicant’s credibility (Park v Canada
(Citizenship and Immigration), 2010 FC 1269 at para 47). In
this case, the purpose of the medical reports was not to corroborate the
applicants’ fears on the merits (as would be the case, for example, for a
medical report corroborating injuries relating to torture), but to explain the
applicant’s difficulties with testifying.
[7]
As indicated by the Court in Ameir v Canada
(Minister of Citizenship and Immigration), 2005 FC 876 at para
27:
It is open to the Board to afford no
probative value to a medical report if that report is founded essentially on a
claimant’s story which is disbelieved by the Board. However, there may be instances
where reports are also based on clinical observations that can be drawn
independently of the claimant's credibility. In the instant case, Dr. Hirsz’s
medical report is based, at least in part, on independent and objective
testing. In such cases, expert reports may serve as corroborative evidence in
determining a claimant’s credibility and should be dealt with accordingly
before being rejected.
[8]
I would also like to add the following to ensure
that the scope of this decision is fully understood. In her report, Dr. Valenzuela
states that she assessed the applicant’s memory using the Wechsler Memory scale,
and she concluded that the applicant’s ability to testify was compromised and
that it was likely that he would have difficulty remembering dates during his
hearing. The RPD essentially performed its analysis backwards: instead of using
the medical reports to assess the applicant’s credibility, the RPD drew
conclusions about credibility and then used those conclusions to reject the
reports.
[9]
It is also clear from reading the impugned
decision that this error in the analysis may have had a negative impact on the
outcome. If the RPD had used the medical reports to assess the applicant’s
credibility, it is possible that it would have accorded little weight to the
inconsistencies in the applicant’s testimony and found it to be credible. Indeed,
the RPD does not indicate in its decision that it would have reached the same
conclusion if it had accepted the medical reports. Because the claim was
principally rejected on the basis of credibility, the error in the
consideration of the medical reports had an important impact on the RPD’s
findings. The respondent indicates that the RPD also considered other factors,
such as the fact that the applicants had started taking steps to obtain visas
before the threats began and that they had waited seven months before making a
claim for refugee protection in Canada. However, these factors are also
affected by the credibility of the applicant’s testimony, and if the applicant
had been found to be credible by the RPD, it is possible that it would have
accepted his explanations for the chronology of his visa application and for
the delay in claiming refugee protection. Moreover, the RPD was silent on the
subjects of state protection and internal flight alternatives.
[10]
However, as indicated by the respondent, it is
also possible that the RPD would have concluded that the applicant was not
credible even if it had accepted the medical reports, or that it would have
rejected the claim for refugee protection even if it had found the applicant to
be credible. However, it is not clear from the RPD’s reasons that the decision
would have been the same regardless of the error involving the medical reports,
and it is not open to this Court to rewrite the RPD’s reasons or substitute its
own appreciation of the evidence. As indicated by this Court on many occasions,
if there is no certainty that the result would have been the same had the RPD
not committed its error, the decision must be returned to the panel for
redetermination (Barrak v Canada (Citizenship and Immigration),
2008 FC 962 at para 34; Pathmanathan v Canada (Citizenship and
Immigration), 2013 FC 353 at para 21; Raju v Canada (Citizenship
and Immigration), 2013 FC 848 at para 22; Kovac v Canada (Citizenship
and Immigration), 2015 FC 497 at para 8).
[11]
Accordingly, the application for judicial review
is allowed and the matter referred back to a different RPD panel for
redetermination. Counsel agree that there is no question of general importance
to certify.
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