Date: 20070522
Docket: IMM-4270-06
Citation: 2007 FC 539
Ottawa, Ontario, May 22, 2007
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
MASTEWAL
FELEKE
Applicant
-and-
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This is an application pursuant to subsection
72(1) of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (“the Act”), for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board (“RPD”) dated July 14, 2006,
which determined that Mastewal Fekele (“the Applicant”) was not a Convention
refugee or a person in need of protection, and forms the basis for the present
review.
BACKGROUND
FACTS
[2]
The Applicant is a citizen of Ethiopia who bases her Convention refugee
claim on an alleged fear of persecution by reason of her political opinion and
her membership in a particular social group, namely the All Ethiopian Unity
Party (“AEUP”).
[3]
According to the Applicant’s Personal
Information Form (“PIF”) Narrative dated April 4, 2005, the Applicant’s father
was one of the founding members of an AEUP office and was detained,
interrogated and beaten by the government more than five times. The Applicant
joined the organization in May 2000 and took part in demonstrations, meetings
and other activities.
[4]
In 1999, the Applicant was detained for five
days at a police station and asked questions relating to her membership in the
AEUP. In August 2000, three armed security agents came to the Applicant’s
house and interrogated the Applicant about the AEUP. She was then beaten and
then detained for two weeks in a district detention centre. The Applicant was
arrested for a third time in February 2004 and was detained for three months and
two days. While she was detained, the Applicant was subjected to a series of
interrogations and beatings. The Applicant, in her PIF, also states that
during her last detention, she was raped three times by a police officer. The
Applicant was not brought before a court of law nor charged with a crime.
[5]
On November 3, 2004 the Applicant left Ethiopia and arrived in Toronto the following day on a work
permit. The Applicant was employed as a live-in caregiver until February 25,
2005 when her contract was terminated due to a conflict with one of the
children in her care. The Applicant made a claim for protection with
immigration officials in April 2005.
ISSUE
[6]
This application raises the following issue: Did
the RPD err by not appropriately considering the Applicant’s psychological
report when making its negative credibility findings?
ANALYSIS
Standard of
Review
[7]
The standard of review for credibility issues
and questions of fact is that of patent unreasonableness (Aguebor v. Canada
(Minister of Employment and Immigration), [1993] F.C.J. No. 732 (QL) at
para. 4; Harb v. Canada (Minister of Citizenship and Immigration), [2003]
F.C.J. No. 108 (QL) at para. 14; Umba v. Canada (Minister of Citizenship and
Immigration), [2004] F.C.J. No. 17 (QL)).
Consideration
of Psychological Reports in Making Findings of Credibility
[8]
The jurisprudence of this Court supports the
notion that the RPD has a duty to consider documentary evidence that supports
the Applicant’s position (Bains v. Canada (Minister of Employment and
Immigration), [1993] F.C.J. No. 497; Maldonado v. Canada (Minister of
Employment and Immigration), [1980] 2 F.C. 302). Justice Shore recently held, in Assouad v. Canada (Minister of Citizenship and
Immigration), [2006] F.C.J. No. 1216 that “A Board
is under a duty to justify its credibility findings with specific and clear
reference to the evidence, particularly when the evidence is cogent and
relevant to the Applicant’s allegations.”
[9]
The consideration of documentary evidence
includes the consideration of psychological assessments when making findings of
credibility. In Ozturk v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 1545 at para. 13, I found that “an applicant’s
mental health is of the utmost importance when one is evaluating an applicant’s
testimony and the credibility of his claim.”
[10]
In considering mental health assessments when
evaluating the Applicant’s credibility, there are two reasons why the
assessment may aid an Applicant. First, it may serve as corroborative evidence
of an Applicant’s story or second, it may provide an explanation for the
inconsistencies in the Applicant’s evidence. Jurisprudence of this court has
supported the notion that mental health assessments may be tendered for either
purpose. For example, in Yilmaz v. Canada (Minister of Citizenship and
Immigration), [2003] F.C.J. No. 1970, Justice Russell, on reviewing whether
a mental health assessment was properly considered as corroborative evidence of
an applicant’s story, held that, “It is not, of course, patently unreasonable
for the Member to consider the psychological assessment in light of her own
findings, and to give it little or no weight because it is based upon
assumptions that she has concluded are false.”
[11]
Justice O’Keefe, in evaluating whether a mental
health assessment was considered as an explanation for inconsistencies in the
applicant’s evidence, in Perera v. Canada (Minister of Citizenship and
Immigration), [2002] F.C.J. No. 1590 stated at para. 29:
It is clear from
the decision that there were differences between the applicant’s statements in
her PIF and her testimony, but these must be weighed in light of the
psychiatrist’s report that she attempts to block out the difficulties in Sri Lanka to handle stress. Although the
Board did not accept the psychiatrist’s report, it gave no reasons for not
accepting the report’s conclusion that the applicant’s PTSD was a result of the
events in Sri Lanka. If
correct, this medical condition could explain some of the differences between
the PIF and the applicant’s oral testimony.
[12]
In Krishnasamy v. Canada (Minister of Citizenship and
Immigration), [2006] F.C.J. No. 561 at para. 15-18,
it was held that in every case where a mental health assessment is tendered as
an explanation for inconsistencies of an applicant’s evidence, it is not always
the case that it will definitively provide the reason for the inconsistencies.
Rather, it is for the RPD to decide after reviewing all the evidence.
[13]
Justice Layden-Stevenson, in Krishnasamy,
supra at para. 14, held that the “conclusion was open” to the member and
that the member was “alert and sensitive to the medical reports prior to and
throughout the hearing.” My colleague concluded that “her negative finding of
credibility was one she was able to make, even taking into account the medical
reports.” She acknowledged that “if the ID had failed to consider the report,
or had disbelieved its contents, the situation might well be different” but
found that this was not the case here. She concluded that “The ID Member’s
determination that the psychiatric report did not provide the better
explanation for the inconsistencies and evasiveness in Mr. Krishnasamy’s
evidence was a determination for the member to make.”
Did the RPD err in its determination that the psychological
report did not provide an explanation for the inconsistencies in the
Applicant’s evidence?
[14]
The RPD, in its decision, stated the reasons why
the Applicant’s psychological report did not change its finding on credibility:
The panel has
reviewed the evidence that the claimant has filed in support of her claim.
There is the psychological report dated July 10, 2006 from Dr. Judith
Pilowsky. Dr. Pilowsky found the claimant credible and assessed her as
suffering from Post Traumatic Stress Disorder in the severe range. However, in
the final analysis it is for the panel to assess credibility at the hearing,
and the panel cannot delegate this important function to Dr. Pilowsky. The
panel does not take issue with Dr. Pilowsky’s clinical observations or
diagnosis, but the panel cannot rely on such assessment to revive a story that
the panel has found to contain significant credibility problems.
(Applicant’s
Record, p. 17-18)
[15]
While the RPD did turn its mind to the
psychological report, the RPD erroneously evaluates the psychological report’s
usefulness. The RPD considered the report’s corroborative nature rather than
as an explanation for the discrepancies in the Applicant’s evidence. Indeed
the Court in Yilmaz, supra, accentuated the importance of evaluating
the evidence for the purpose it was tendered at para. 70:
Thus, the report
was not adduced in order to corroborate the incidents per se but rather
as a means of providing an explanation to the tribunal as to why the applicant
had obvious difficulties during the court of the hearing in answering
straightforward questions. The tribunal in its reasons for decision
acknowledged that the applicant had had difficulty during the course of the
hearing in answering questions but dismissed the report because it disbelieved
the applicant due to his inconsistent testimony. However, the report was not
adduced to prove the testimony but to provide an explanation for the
applicant’s difficulty. It is submitted that it is here that the tribunal goes
in error because it failed to appreciate the reason why the report was adduced
into evidence and failed to deal with its import….
[16]
The Court in Perera, supra also supports
the notion that, if a psychological report is tendered for the reason of
explaining the applicant’s behaviour in giving evidence, the RPD is obliged to
explain whether it accepts the medical assessment as explaining the
discrepancies and not just whether it accepts the report as corroborative
evidence or “reviving” the Applicant’s story as the RPD in this case has
characterized it.
[17]
I agree with the Applicant that the RPD did not
consider the impact of the psychological report on the discrepancies of
Applicant’s evidence, all the while acknowledging the Applicant’s difficulties
during her testimony, citing that the Applicant “said that she was upset and
not thinking clearly”. In fact, the Applicant stated at one point during her
testimony:
There are all
kinds of emotion that’s going on at this point, because I also have to deal
that I was questioned about me being violated and also there is the issue of my
father, and I am dealing with all kinds of things and that’s probably I’m not
thinking clearly, but sometimes I don’t even know when all those things are
coming in my head. I don’t even know what I am exactly doing.
(Certified
Tribunal Record, pgs. 404-405.)
[18]
The medical assessment, which the RPD accepted,
stated that the Applicant suffered from “cognitive difficulties, avoidance
behaviours, generalized anxiety symptoms”, all of which could have provided an
explanation for the Applicant’s behaviour. The RPD, in finding a decision
either way, with regards to credibility, had an obligation to explain how the
diagnosis impacts the RPD’s assessment of any discrepancies.
The AEUCRO letter is objective evidence supporting the Applicant’s
claim she is a member of the AEUP
[19]
The RPD erred when it found that the letter from
the All Ethiopian Unity Cultural and Relief Organization (“AEUCRO”) did not
provide objective evidence as to how the AEUCRO determined that the Applicant
was a member of the AEUP party. The RPD erred when it reasoned that the letter
did not prove that in the future the Applicant would come to the attention of
the authorities. Rather, the letter was properly submitted as corroborative
evidence of the Applicant’s involvement in the AEUP. As a result, when the
matter will be re-examined by a new panel, an assessment should be made of the
impact of being a member of the AEUP party in light of both, the corroborative
evidence provided by the Applicant, and, the documentary evidence showing that
the government is very harsh with perceived members of the opposition.
[20]
For these reasons, the application for
judicial review of the RPD’s decision is granted and the matter is referred
back for re-determination by a different panel.
JUDGMENT
The application for judicial review of the RPD’s decision is granted
and the matter is referred back for re-determination by a different panel.
“Danièle
Tremblay-Lamer”
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