Docket: IMM-4851-15
Citation:
2016 FC 573
Ottawa, Ontario, May 26, 2016
PRESENT: The
Honourable Mr. Justice Diner
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BETWEEN:
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FIKRETE SHALA
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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.
Background
[1]
This is a judicial review, pursuant to
subsection 72(1) of the Immigration and Refugee Protection Act, SC 2001,
c 27 [the Act], of a decision by the Refugee Appeal Division [the RAD] of the
Immigration and Refugee Board confirming a decision by the Refugee Protection
Division [the RPD] rejecting the Applicant’s claim for refugee protection.
[2]
The Applicant is 52-year old citizen of Kosovo.
She alleges that her husband emotionally, physically and sexually abused her
since shortly after they married in 1986 until a particularly brutal incident
in 2012. She then fled Kosovo on June 3, 2013, ultimately making her way to
Canada in March 2015.
[3]
Before the RPD, the Applicant submitted, among
other pieces of evidence, a psychiatric report diagnosing her with a “mild Major Depressive Episode”, including
post-traumatic stress disorder symptoms, suicidal ideations and a “somewhat anxious, obsessional personality (probably within
normal limits)”. That report was based on one visit with a psychiatrist
in Canada.
[4]
The Applicant also submitted country condition
documentation suggesting that while Kosovo had legislation in place to combat
domestic violence, the implementation of that legislation was inadequate. She
argued that the relevant National Documentation Package [NDP] affirmed this
assessment and that it was objectively unreasonable, in light of her
psychiatric report, to have expected her to seek state protection in Kosovo.
The RPD, however, rejected her claim, finding that, while her narrative was
credible, the Applicant had not rebutted the presumption of state protection.
She appealed to the RAD shortly thereafter.
[5]
The RAD, in its decision, agreed with the RPD
that the Applicant could have approached the state for protection but did not
and thus that the presumption of state protection had not been rebutted. In
considering the psychiatric report, the RAD noted that no evidence had been
provided to suggest that the Applicant had sought any further treatment or
visit after the initial diagnosis. The RAD also observed in its words, that no “formal testing” was done by the psychiatrist; the
Applicant self-reported her story and symptoms to the psychiatrist without
corroborating documentation; there were no signs of alleviated stress levels
during her RPD hearing; the Applicant made no requests for special
consideration for that hearing; and the Applicant’s counsel only briefly raised
the psychiatric report when making submissions.
[6]
As for the country condition analysis, the RAD
also upheld the RPD’s findings, rejecting the claim that it had been selective
in its assessment of the documentary evidence. The RAD concluded that, while it
would have preferable for the RPD to have considered the report, there remained
insufficient evidence to demonstrate that it was not reasonable for the
Applicant to seek state protection.
II.
Analysis
[7]
The Applicant raises two issues, asserting that
the RAD (i) unreasonably dismissed and did not consider the Applicant’s mental
health; and (ii) failed to consider the impact of her mental health on her
ability to seek state protection.
[8]
Preliminarily, the Federal Court of Appeal
recently clarified that the standard of review the RAD should apply when
reviewing RPD decisions is correctness, conducting “its
own analysis of the record to determine whether, as submitted by the appellant,
the RPD erred” (Canada (Citizenship and Immigration) v Huruglica,
2016 FCA 93 at para 103 [Huruglica FCA]). The RAD’s selection of a
standard of review must then be reviewed by this Court on a reasonableness
standard (Huruglica FCA at para 35).
[9]
Here, the RAD selected and applied the standard
laid out in Huruglica v Canada (Citizenship and Immigration), 2014 FC
799 at para 54 [Huruglica FC], a standard which has since been
supplanted by the approach offered in Huruglica FCA. Selecting the Huruglica
FC standard, however, does not mean that the RAD has committed a reviewable
error: so long as the RAD conducted, in substance, a thorough, comprehensive,
and independent review of the kind endorsed in Huruglica FCA, the RAD’s
selection and application of a standard of review was reasonable (Ketchen v
Canada (Citizenship and Immigration), 2016 FC 388 at para 29). This is
especially true, where, as in this dispute, credibility was not an issue before
the RAD (Huruglica FCA at para 71).
[10]
As for the RAD’s assessment of the facts and its
application of the state protection analysis, they are reviewable on a
reasonableness standard (Moya v Canada (Citizenship and Immigration),
2016 FC 315 at para 32). As such, if the RAD’s decision on these issues falls
within a range of possible, acceptable outcomes that are defensible in respect
of the facts and the law and is justifiable, transparent and intelligible, it
should not be disturbed (Dunsmuir v New Brunswick, 2008 SCC 9 at para
47).
[11]
On the first issue – the RAD’s failure to
properly consider the psychiatric evidence – the Applicant submits that it was
an error to reject the psychological evidence without a permissible basis. The
report should not have been discounted because it was based on self-reporting (Lainez
v Canada (Citizenship and Immigration), 2012 FC 914 at para 42). Similarly,
the RAD member does not have the training and expertise of a mental health
professional and is thus not competent to dismiss the report on the basis of
insufficient “formal testing” (Gyarchie v
Canada (Citizenship and Immigration), 2013 FC 1221).
[12]
Furthermore, the Applicant contends that it was
unreasonable for the RAD to question the severity of her mental condition based
on the fact that she did not display any outward signs of stress during the
hearing and did not make any requests for special accommodations as a victim of
sexual assault. Citing Shaker v Canada (Minister of Citizenship and
Immigration), [1999] FCJ No 1077 at paras 9-10, the Applicant submits that
a claimant’s emotional state while recounting traumatic events should not serve
as an indicator of their credibility.
[13]
Finally, the Applicant argues that it was
unreasonable to draw a negative inference from either her counsel’s limited
focus on the subject of mental health at the hearing or the fact that no
further medical evidence beyond the psychiatric report was tendered. The
Applicant contends that counsel limited questions on the subject due to its
sensitive nature. As for the lack of further evidence, the Applicant argues
that she had no need to submit new evidence since she was arguing that the RPD
unfairly ignored her mental health evidence entirely, rather than arguing that
it had been minimized or misconstrued. Since appellants to the RAD are only allowed
to submit new evidence to address errors made by the RPD in the appealed claim,
there was no reason for her to adduce further proof of her mental health.
[14]
On the second issue – the RAD’s state protection
analysis – the Applicant argues that, in light of her mental health issues, it
was not objectively reasonable to expect her to contact the authorities in
Kosovo. In other words, as an individual who suffers from anxiety and
depression and some symptoms of post-traumatic stress disorder, she could not have
sought state protection, even if it were reasonably forthcoming. As such, the
RAD erred in concluding that “there was insufficient
evidence to demonstrate that it was not reasonable for the Appellant to seek
out state protection” (Certified Tribunal Record at 8 [CTR]).
[15]
I agree with the Applicant that there were
several problematic elements to the RAD’s assessment of the psychiatric report,
in particular the RAD’s reliance on the fact that the Applicant did not make
any requests for special accommodation, and did not appear in distress in the
RPD hearing. Neither of these details impugns or diminishes the psychiatric
assessment in any way.
[16]
Despite these problematic elements, I find the
decision to be reasonable overall. This is because the RAD determined that the
Applicant could have contacted state authorities for protection but did not,
and I find nothing unreasonable about this conclusion, even in light of the
psychiatric report.
[17]
A refugee claimant’s failure to test state
protection is determinative to their claim, except where it would have been
objectively unreasonable to do so (Canada (Attorney General) v Ward,
[1993] 2 S.C.R. 689 at 724). Claimants cannot evade this obligation because of
subjective fear or reluctance to contact the authorities. Instead, they must
submit evidence to demonstrate that reluctance or fear was objectively
reasonable. As stated by Justice Rennie (then of this Court) in Aurelien v
Canada (Citizenship and Immigration), 2013 FC 707 at para 13, “an applicant’s subjective fear will not be determinative of
the question of state protection. Rather, the jurisprudence requires that an
applicant’s perception be considered in light of the general country conditions
and factors such as the applicant’s age, social and cultural context”.
[18]
A claimant’s psychological or mental health
certainly should be considered as part of this contextual analysis, especially
when there is evidence to support a particular diagnosis. A mental disorder is
more than just a “subjective fear or reluctance”
and must be treated as such. However, it is not clear to me how a diagnosis of
depression and anxiety necessarily and determinatively demonstrates that the
Applicant was unable, throughout over twenty-five years of marriage, to contact
the authorities at any point. There is neither a statement to this effect in
the report itself, nor anything else in the evidence submitted to support such
a claim.
[19]
I would also note that this Court has held that
the RAD is entitled to deference in how it weighs and considers evidence. This
is equally true as to the weighting it gives to expert evidence, including
uncorroborated evidence in a psychiatric report. It was open to the RAD to be
cautious about the report given that it was based on one meeting after nearly
three decades, a period from which not a single other psychological report, or
evidence of any consultation, was produced. Decision-makers may validly
exercise caution in relying overly on untested expert evidence obtained for the
purposes of litigation (see, for example, Czesak v Canada (Citizenship and
Immigration), 2013 FC 1149 at paras 37-39; Molefe v Canada (Minister of
Citizenship and Immigration), 2015 FC 317 at para 31; Moya v Canada
(Minister of Citizenship and Immigration), 2016 FC 315 at paras 58-59).
[20]
That said, even if the RAD had given the
psychiatric report the weight the Applicant suggests is reasonable, I do not
see how that would have changed the outcome, particularly in light of the RAD’s
conclusion, based on the country condition evidence that state protection would
have been reasonably forthcoming. As mentioned above, there is nothing before
me to suggest that depression and anxiety would necessarily and automatically
prevent a claimant from seeking state protection over the course of almost
three decades. The RAD is entitled to deference on this point.
III.
Conclusion
[21]
In sum, I do not find that the RAD came to an
unreasonable conclusion in its assessment of state protection in light of the
psychiatric report. Though it made problematic findings relative to the scant
questioning on the report by counsel and the lack of accommodation requested at
the hearing, I do not find that those conclusions render the decision
unreasonable overall. The crux of the matter is that both the RPD and RAD
reasonably found that the requirement to seek state protection had not been
satisfied and the Applicant had not demonstrated that she was exempt from that
requirement, given the contextual factors surrounding this case. This
application for judicial review is dismissed. There are no costs or certified
questions.
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