Docket: IMM-3606-15
Citation:
2016 FC 329
Ottawa, Ontario, March 18, 2016
PRESENT: The
Honourable Mr. Justice Phelan
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BETWEEN:
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SHEREENA SALIJH
STERLING
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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.
Introduction
[1]
The Refugee Protection Division [RPD] made a “no credible basis” finding in respect of a claim
grounded in sexual orientation – alleged bisexuality. As a result of that
finding, the Applicant could not appeal to the Refugee Appeal Division [RAD]
and obtained leave for judicial review of the RPD’s decision [Decision].
II.
Background
[2]
The Applicant, a Jamaican citizen, claimed
refugee protection because of her bisexuality. The narrative contained
allegations of sexual assault by a 26 year old neighbour when the Applicant was
around the age of 5, as well as numerous other sexual assaults. It also
outlined the timeline of the Applicant’s awareness of her growing attraction to
women.
The
Applicant claimed that she was blackmailed when her first lesbian relationship
became known in her community in Jamaica. She also provided details of numerous
other relationships.
[3]
The RPD rejected the refugee protection claim
because of lack of credibility. This credibility finding was based
significantly on the Applicant’s inability to recall details of personal
relationships and trauma experienced. In particular, the RPD was concerned
about the Applicant’s inability to recall details of her childhood experiences and
her most recent relationship.
[4]
The Applicant also described coming to Canada as
a visitor and becoming involved with a man who abused her, leading the
Applicant to a suicide attempt. She admitted that she began to research how to
stay in Canada and discovered, on a website, that a claim for asylum could be
based on sexual orientation.
It
appears that the “convenience” of a claim of
bisexuality was a theme running through the RPD’s credibility finding.
[5]
Importantly, the RPD had before it a
psychologist’s report [Report] which addressed the psychological impact on the
Applicant of the alleged events. The Report also provided an explanation for
the Applicant’s inability to remember key events and circumstances.
[6]
The RPD rejected the Report because it did not
adequately explain the Applicant’s memory issues given that the RPD had
concluded that the Applicant was not credible. Having rejected the Applicant’s
story as not credible, a psychologist’s report based on that story can be given
little weight.
III.
Analysis
[7]
The issues in this case – the treatment of the
Report, the credibility findings, the “no credible
basis” finding – are all subject to a reasonableness standard of review
(Sukhu v Canada (Citizenship and Immigration), 2008 FC 427, 166 ACWS
(3d) 345).
[8]
The RPD’s decision suffers from circular
reasoning – a Catch 22 situation. The RPD found the Applicant’s story not
credible; therefore, any report (or this Report in particular) cannot be given
weight in terms of explaining credibility concerns if that Report is based on a
non-credible story.
[9]
In Ameir v Canada (Minister of Citizenship
and Immigration), 2005 FC 876, 140 ACWS (3d) 338 [Ameir], the
reasoning of which was relied on by the RPD, the Court held that a
psychologist’s report based solely on an applicant’s non-credible story can be
given little weight. The proposition, as far as it goes, is reasonable on a
theory akin to “garbage in, garbage out”. The
psychologist has no first-hand knowledge of the facts alleged.
[10]
However, the Ameir decision goes further
to find that where reports are based on clinical observations that can be drawn
independently from a claimant’s credibility, such expert reports can serve as
corroborative evidence in determining credibility and should be dealt with
accordingly.
[11]
A psychologist’s report based on the expert’s
observation and the conclusion that such observations or manifestations are
consistent with the claimant’s narrative are often relied upon with respect to
physical injuries. For example, a doctor, while having no first-hand knowledge
of whether the patient was in a car accident, can validly opine that the
injuries observed by him/her are consistent with injuries from a car accident
as the patient describes.
[12]
In the Report in issue, the psychologist
performed an analogous function in explaining the reasons for defective memory
which formed a basis for the adverse credibility finding.
The
RPD was unreasonable in not considering the psychologist’s report from that
perspective. The RPD’s reason was tantamount to, “I do
not believe you, therefore I do not believe anything that explains why I might
be wrong”.
[13]
Given the Report, the RPD could not make a “no credible basis” finding. Such a finding is
predicated on the absence of any credible evidence to support a
claimant’s case.
[14]
The RPD cannot insulate itself from appellate
review merely by making such a finding. A court must carefully examine such a
finding because it has significant legal consequences and could possibly be
made too easily or conveniently.
[15]
In this case, the RPD did not properly consider
the psychologist’s objective considerations. Those observations offer “some”
credible grounds for aspects of the Applicant’s narrative. Unless the RPD had a
basis for rejecting the psychologist’s observations and explanation for memory
deficiencies, it cannot make a “no credible basis”
finding.
[16]
As the Ameir decision underscores, the
RPD may assign little weight to such a report (presuming it had grounds to do
so), but that is a different finding than a “no
credible basis” finding.
[17]
The RPD also ignored various relevant documents in
evidence, which also undermines the “no credible basis”
finding.
IV.
Conclusion
[18]
This judicial review will be granted, the
decision quashed and the matter referred back to a different panel.
[19]
There is no question for certification.
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