Date: 20090630
Docket: IMM-2111-08
Citation: 2009
FC 687
Toronto, Ontario, June 30, 09
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
NADINE KUTA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
present Application concerns a decision denying refugee protection to a citizen
of Burundi who fled that country for
fear of persecution based upon her gender and her Tutsi ethnicity. Ms. Kuta’s claim
for protection was rejected by the Refugee Protection Division (RPD) on March
6, 2008 on the basis of a global negative credibility finding.
[2]
The
negative credibility finding is the result, in large part, of the Applicant’s
apparent inability to give clear and consistent evidence of her suffering as a
sexual assault survivor in Burundi at the hands of her ex-husband
in 2003 and the Hutu militia in 2006. With respect to this finding, Counsel
for the Ms. Kuta relies on evidence of Ms. Kuta’s psychological condition at the
time of the hearing to argue that the RPD’s decision is rendered in fundamental
error.
[3]
The
psychological evidence is contained in the following letter dated October 4,
2007 written by Ms. Kuta’s physican and addressed to Counsel for Ms. Kuta:
Dear Mr Confente,
Re: KUTA, Nadine
DOB 25-05-69
In response to your letter dated
September 10, 2007, Nadine Kuta joined our medical practice in February 2007.
However, she has been attending the Centre de Sante Communautaire for
assistance with integration and counselling since August 2006.
As you are aware, Nadine is from Burundi. She tells me that she was a
victim of violence in her home country. She witnessed the murder of her family
and is now the only surviving family member. As a result, she suffers from
anxiety, depression, insomnia, loneliness and chronic headaches.
Symptoms of depression include changes in
appetite which may lead to weight loss or weight gain, sleep disorders such as
early morning wakening, decreased interest, poor concentration, difficulty
making decisions, guilt and feelings of worthlessness, decreased energy, and in
severe cases, suicidal ideation.
Anxiety however is characterised by a
heightened sense of fear and can manifest itself in excessive palpitations,
nausea, shortness of breath, trembling and sweating.
It is very common to have both conditions
simultaneously as is the case with Nadine.
In effect, Nadine suffers from Post
traumatic stress disorder. This is defined as exposure to a traumatic event
experienced or witnessed by the person usually resulting in injury to self or
injury or death to others. The usual response in a person with the disorder is
to feel intense fear, helplessness or horror. The traumatic event is
persistently re-experienced through recurrent distressing dreams or
flashbacks. Symptoms persist for more than 1 month.
Nadine is currently taking fluoxetine
(Prozac) 20 mg for her depressive symptoms and ativan .05mg to help with
anxiety and insomnia, when she needs it. She also takes advil occasionally for
her headaches. Furthermore, she sees our mental health counsellor and social
worker Lubna Moric and Jocelyn Bond respectively about her post traumatic
stress disorder.
It is possible that her condition can
affect her memory. Certainly, preoccupation with distressing events may affect
one’s ability to remember things. In addition, she may experience ante grade
amnesia, confusion and drowsiness with ativan. However this is more likely to
occur with much higher doses. (See enclosed copy of information about the
medication she is currently on taken from the 2005 Compendium of
Pharmaceuticals and Specialties).
I hope this is the information you
require.
Yours truly,
Dr. Nasima Mottiar MD CCFP
(Tribunal Record, pp. 108-109)
[4]
Counsel
for Ms. Kuta advances the importance of this evidence by reference to the
Immigration and Refugee Board’s “Guideline 4: Women Refugee Claimants
Fearing Gender-related Persecution: Guidelines issued by the Chairperson
pursuant to section 65(3) of the Immigration Act” as follows:
D. SPECIAL PROBLEMS AT DETERMINATION
HEARINGS
Women refugee claimants face special
problems in demonstrating that their claims are credible and trustworthy. Some of the difficulties may
arise because of cross-cultural misunderstandings. For example:
[…]
3. Women refugee claimants who
have suffered sexual violence may exhibit a pattern of symptoms referred to as
Rape trauma Syndrome and may require extremely sensitive handling. […]
Counsel for Ms. Kuta argues that the RPD’s failure to
acknowledge Guideline 4, and, indeed, to consider the Applicant’s
testimony in the manner it describes constitutes a reviewable error. I agree
with this argument.
[5]
The
approach adopted by the RPD as evidenced in the decision was to first take
instances of Ms. Kuta being: “utterly confused”, stating that “there was an
error in her PIF”, giving “internally inconsistent” testimony, being “mixed
up”, “failing to bring to her hearing key documents that would have helped
corroborate her account”, having “great difficulty recalling”, and having
“great difficulty” explaining details (Decision pp. 3 - 4) as evidence that Ms.
Kuta was lying in the giving of her evidence, and to then discount the evidence
of her suffering Post Traumatic Stress Disorder. The following passages from
the RPD’s decision are evidence of this approach:
The panel accepts that
people’s memories can be affected by stress. However, in this case, the panel
is not persuaded that either stress or the possibility the claimant might
have Post Traumatic Stress Disorder (PTSD) can reasonably explain the
multiple inconsistencies in her evidence. When it comes to one’s children in
particular, it is hard to imagine a mother not recalling the last time she held
her own son and daughter in her arms. (Decision, p. 6) [Emphasis added]
[…]
Doctor Mottiar has come to her medical
conclusions based on the account the claimant has provided to her. These
conclusions are not based on verifiable, independent, objective evidence. Even
if the claimant might be suffering from PTSD, the panel has no credible
evidence before it that this is the result of the persecutory events the
claimant has alleged, since the panel is persuaded these events never happened.
(Decision, p. 7) [Emphasis added]
[6]
The unchallenged
evidence before the RPD was that Ms. Kuta was suffering PTSD at the time she
testified. I find it is an error for the RPD to not have, unequivocally,
accepted this fact. It is clear that the purpose of Guideline 4 is to
alert RPD members of the need to use evidence of this condition as a lens
through which to view the evidence given by a suffering claimant, and to take
care, not only in obtaining the evidence in a sensitive way, but also to be
very cautious in arriving at credibility conclusions where the evidence
exhibits the kinds of problems identified in the decision presently under
review.
[7]
During the
course of the hearing of Ms. Kuta’s claim, Counsel for Ms. Kuta squarely placed
her psychological condition before the RPD with the following comment at a
point in the proceeding when an adjournment was required to give Ms. Kuta a
chance to recover from being emotionally upset:
I think we are on the subject
of a sexual assault, sexual violence. And we have the letter from Dr. Motilla
(ph) and it seems that this event had an impact on Ms. Kuta. If I can suggest
that we take a 5 or 10 minute break, just for her to calm down. Because I think
it is the subject that has a huge impact on her ability to recall incidents.
(Transcript of the Hearing, p.
56)
In my opinion, the RPD’s failure to properly apply Guideline
4 in evaluating Ms. Kuta’s evidence taints the quality of the whole of the
decision under review. As a result, I find the decision is unreasonable.
ORDER
Accordingly, I set
aside the decision under review and refer the matter back for redetermination
by a differently constituted panel.
There is no question to
certify.
“Douglas
R. Campbell”
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