Date: 19980114
Docket: IMM-828-97
Ottawa, Ontario, this 14th day of January 1998
Present: The Honourable Mr. Justice Pinard
Between:
Lorena Cecilia LUTTRA NIEVAS,
Johana Leslie BASUALTO,
Applicants,
-and-
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
ORDER
The application for judicial review of the decision of the Refugee Division dated February 3, 1997, determining that the applicants had abandoned their claim, is allowed, and the matter is referred back to a different panel of the Refugee Division for rehearing, the panel being directed that the applicants have not abandoned their claim.
YVON PINARD
JUDGE
Certified true translation
C. Delon, LL.L.
Date: 19980114
Docket: IMM-828-97
Between:
Lorena Cecilia LUTTRA NIEVAS,
Johana Leslie BASUALTO,
Applicants,
-and-
MINISTER OF CITIZENSHIP
AND IMMIGRATION,
Respondent.
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of a decision of the Refugee Determination Division dated February 3, 1997, determining that the applicants, Lorena Cecilia Luttra Nievas (the principal applicant) and her daughter, Johana Leslie Basualto, had abandoned their claim.
[2] The Refugee Division concluded that the applicants had not shown cause why their claim should not be declared to have been abandoned.
[3] On December 27, 1996, the applicants were informed by the Refugee Division that a hearing would be held on January 21, 1997. On January 20, the applicants made a request for a postponement, which was not granted. The applicants did not attend at the hearing scheduled for January 21, 1997, and on January 27, 1997, the applicants were informed that a hearing would be held on February 3, 1997, to allow them to show cause why the Refugee Division should not declare their claim to have been abandoned.
[4] The principal applicant explained that on January 20, 1997, the day before her hearing, she was suffering from nausea and felt nervous and anxious because of what she was remembering. She said that she had previously consulted Dr. Figueroa in September 1996 for her gastric problems. She contended that these health problems had appeared because she was starting to remember being gang-raped just before she left Chile. She therefore consulted Dr. Edward Cherito, who gave her a medical certificate stating that she was under his care, attesting that she was disabled until January 27, 1997, on the ground that she was suffering from gastritis, insomnia and anxiety. The principal applicant then had her counsel ask the Board for a postponement on January 20, 1997, but her request was not granted.
[5] The psychologist, Célia Lillo, met with the principal applicant on February 2, 1997, and provided a report describing the following symptoms: hypervigilence, muscle tension, continuous headaches, insomnia or nightmares, and cognitive problems. She explained that the principal applicant's reaction was consistent with the reactions of rape victims who have difficulty "breaking the silence".
[6] The principal applicant stressed the fact that she was incapable of testifying on January 21, 1997, because of her serious nausea. Ms. Lillo testified at the hearing on February 3, 1997, that the principal applicant would have been incapable of giving testimony at her examination the day before (February 2, 1997).
[7] This is a case in which I believe I must intervene. Despite the explanation given by the principal applicant as to her anxiety and the problems associated with that anxiety and Ms. Lillo's psychological report and testimony that the principal applicant was suffering from numerous symptoms of anxiety, the tribunal nonetheless concluded that the claim had been abandoned. In my opinion, the tribunal was wrong to disregard the testimony of the principal applicant, which was that she was in no fit state to testify at the hearing on January 21, 1997, because it did not place the proper weight on the testimony and report of the psychologist, Ms. Lillo. The tribunal did not refer to the evidence offered by the psychologist until the end of the hearing on February 3, 1997, as is apparent from the following comment by the presiding member:
| [translation] And secondly, I simply find that there was still a ten-day delay between the time when we initiated the abandonment proceedings and the time when the psychologist was consulted, that is, only yesterday. |
|
[8] It therefore appears to me that the tribunal in fact ignored the uncontested evidence adduced through the testimony and report of the psychologist, Ms. Lillo, which in my opinion was sufficient to corroborate the principal applicant's assertion that she was incapable of testifying on January 21, 1997.
[9] In Sanghera v. Canada (M.E.I.) (1994), 73 F.T.R. 155, my colleague Mr. Justice Gibson concluded, at pages 157 and 158, that a tribunal had not placed sufficient weight on a psychiatric report:
| . . . The Tribunal expresses concern about the ". . . somewhat evasive and confusing" nature of the applicant"s testimony. It acknowledges the submissions of applicant"s counsel in this regard relating to the passage of time and the applicant"s "minimal educational standards". The Tribunal appears to completely ignore evidence before it in the form of a written psychiatric report that indicates the applicant suffers from Post-Traumatic Stress Disorder and Depression with the result that ". . . he gets very forgetful, loses his train of thoughts, concentration and becomes very afraid, especially when the past is discussed". The applicant is entitled to an assurance that such evidence was taken into account in the credibility finding against him that apparently was based on the evasiveness and confusion in his testimony. |
|
[10] Similarly, in Reyes v. Canada (M.E.I.) (March 23, 1993), A-59-91, Mr. Justice Mahoney wrote, on behalf of the Federal Court of Appeal, at pages 1 and 2:
| The first level tribunal found that there was no credible basis to the Applicant"s claim to be a Convention refugee because of the inconsistencies and contradictions in his viva voce testimony and his behaviour while testifying. The documentary evidence disclosed that the torture the Applicant said he had experienced could well have happened in Chile at the time. The clear inference to be drawn from the evidence is that, whatever the trauma he had undoubtedly experienced, it had occurred in Chile. |
|
| There was considerable expert evidence as to post traumatic stress syndrome and as to the Applicant"s present condition. The problems which the tribunal identified with the Applicant"s testimony and behaviour were by no means inconsistent with the manifestations of the syndrome described in that evidence. |
|
| We are all of the view that, having regard to the totality of the evidence, in finding the Applicant"s evidence not to be credible for the reasons it gave, the tribunal entered on an inquiry reserved to the Refugee Division. This s.28 application will be allowed, the decision of the credible basis tribunal dated October 30, 1990, set aside and the matter remitted for a new hearing as now provided by the law. |
|
[11] Lastly, unlike the situation in Fetni v. Canada (M.C.I.) (March 27, 1997), IMM-1230-96, the principal applicant here did not demonstrate any lack of interest or negligence, since she met with her counsel some five times to prepare for the hearing of her case, and ultimately requested only one adjournment.
[12] For all these reasons, the application for judicial review is allowed and the matter is referred back to a different panel of the Refugee Division for rehearing, the panel being directed that the applicants have not abandoned their claim.
YVON PINARD
JUDGE
OTTAWA, ONTARIO
January 14, 1998
Certified true translation
C. Delon, LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO: IMM-828-97
| STYLE OF CAUSE: LORENA CECILIA LUTTRA NIEVAS ET AL. v. M.C.I. |
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: January 6, 1998
REASONS FOR ORDER OF MR. JUSTICE PINARD
DATED: January 14, 1998
APPEARANCES:
Noël Saint-Pierre FOR THE APPLICANT
Michèle Joubert FOR THE RESPONDENT
SOLICITORS OF RECORD:
Saint-Pierre, Grenier FOR THE APPLICANT
Montréal, Quebec
George Thomson FOR THE RESPONDENT
Deputy Attorney General of Canada
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