Date: 19990412
Docket: IMM-1922-98
BETWEEN:
ANNY SENGA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.
[1] The applicant, a 32 year-old citizen of the Democratic Republic of Congo formerly Zaïre (the DRC) seeks judicial review of a decision of the Immigration and Refugee Board Convention Refugee Determination Division (the "Board") dated March 11, 1998 whereby the applicant's claim for refugee status was denied.
[2] The issues are whether the Board neglected to take into account relevant evidence, namely two medical reports, in its consideration of subsection 2(3) of the Immigration Act, and secondly whether the Board provided adequate reasons for determining whether the applicant came within the class of persons identified in subsection 2(3).
[3] The applicant submits that the Board made an error in law in saying that her psychological state was not relevant to the definition of refugee under the Convention. In particular, the Board stated at page 4:
| Le tribunal est d'avis que les rapports médicaux indiquent qu'elle est angoissée et traumatisée, cependant, ils laissent plutôt présumer que son état psychologique est relié aux difficultés qu'elle éprouve au Canada depuis son arrivée en 1994, plutôt qu'aux événements avant son départ du Zaïre. Cependant, nous sommes d'avis que cet état psychologique est relié à des éléments extérieurs aux motifs énoncés dans la définition de réfugié au sens de la Convention. |
An examination of the medical reports indicates that there was a complete misreading of the reports. Dr. Blakeney, at page 3 of his report of January 14, 1997 referred to the events relating to the applicant's children viewing her rape and he went into further detail about why she avoids discussing the subject of rape. He concluded, "...Ms. Senga's account of the immediate and long term sequelae of being raped is very credible from a medical perspective." He does not discuss at all the affect of any problems subsequent to her arrival in Canada in 1994.
[4] Dr. Baruch in her report of January 12, 1998 stated that "[Ms. Senga] lived in constant fear that she would be found and perhaps beaten and raped again." This was in reference to a period of time when she was still in [the former] Zaïre. Dr. Baruch referred to the applicant's continuation of nightmares since coming to Canada and stated, "I feel that Mrs. Senga is suffering from Post Traumatic Stress Disorder." Dr. Baruch connected this directly to the circumstances of the rape. She did mention that in addition the applicant has had a tremendous amount of stress and uncertainty about her life since 1994. However, this was simply mentioned as an additional stress to that stemming from Ms. Senga's experience in the former Zaire. The Board must have either misinterpreted or ignored the doctors' evidence in coming to its finding. The Board was certainly in error in saying that her psychological state was not related to the definition of a refugee under the Convention. This is an error of magnitude and is therefore reversible.
[5] I do not need to review extensively the second issue with respect to the reasons since the Board misunderstood the medical reports and accordingly I am not able to determine what their view would be of the circumstances involved in the rape properly understood.
[6] When this matter is returned to a newly constituted Board, this Board will have to determine whether the circumstances of the rape amount to appalling persecution as set out in Canada (Minister of Employment and Immigration) v. Obstoj (1992) 2 F.C. 739 at page 748 and provide any potential reviewing Court with sufficient analysis in order for it to determine whether this amounts to appalling persecution.
[7] There is no doubt that subsection 2(3) of the Act is only applicable to a "special and limited category of persons", as was held in Obstoj, supra at page 748.
[8] The application for judicial review is allowed. The matter is returned to the Board for redetermination by a newly constituted panel in a manner not inconsistent with these reasons.
[9] In view of my reasons for decision, the proposed certified questions are not relevant.
Judge
OTTAWA, ONTARIO
April 12, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-1922-98
| STYLE OF CAUSE: ANNY SENGA |
| - and - |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
DATE OF HEARING: TUESDAY, APRIL 6, 1999
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: McKEOWN J.
DATED: MONDAY, APRIL 12, 1999
APPEARANCES: Mr. Micheal Crane
For the Applicant
Ms. Marianne Zoric
For the Respondent
SOLICITORS OF RECORD: Micheal T. Crane
Barrister & Solicitor
200-166 Pearl St.,
Toronto, Ontario
M5H 1L3
For the Applicant
| Morris Rosenberg |
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19990412
Docket: IMM-1922-98
Between:
| ANNY SENGA |
Applicant
| - and - |
| THE MINISTER OF CITIZENSHIP |
AND IMMIGRATION
Respondent
REASONS FOR ORDER