Date: 20041102
Docket: IMM-9238-03
Citation: 2004 FC 1485
BETWEEN:
ROSA YASMIN DOMINGUEZ NAPURI
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
PINARD J.
1. This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board on October 29, 2003 that the applicant is not a Convention "refugee" nor a "person in need of protection" pursuant to sections 96 and 97 respectively of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
2. Rosa Yasmin Dominguez Napuri (the applicant) is a national of Peru who was born in 1961. She alleged she was persecuted by terrorists in her country, without being able to turn to the authorities of her country for protection.
3. The applicant maintained that through her counsel she had sought an adjournment of the hearing of April 14, 2003 in view of her psychological frailty at that time. Essentially, the applicant argued that the IRB erred in relying on the facts to dismiss her application, without taking the psychological report into account. In the applicant's submission, there was a denial of justice because she was obliged to go ahead when she was not prepared.
4. There is no evidence in the record that the applicant sought an adjournment of the hearing on account of her psychological condition. It only contains a letter dated April 8, 2003 (less than a week before the hearing) from counsel for the applicant to the IRB, asking for the panel and the interpreter to be women. At the hearing, the interpreter was a woman but the presiding member was a man. Counsel sought to raise the problem which this presented, but the member dismissed the objection and the hearing proceeded without further objection.
5. The Court has often dealt with the problem of a psychological assessment as a tool to support the credibility of an asylum claimant.
6. As Reed J. wrote in Danailov v. Canada (M.E.I.), [1993] F.C.J. No. 1019 (T.D.) (QL):
[2] With respect to the arguments concerning the panel's findings on credibility, I read both the transcript and the Tribunal's decision before hearing counsels' submissions. I have now had the benefit of those submissions and could not conclude that the Tribunal's finding was other than entirely proper on the basis of the evidence before it. With respect to the assessment of the doctor's evidence, to find that that opinion evidence is only as valid as the truth of the facts on which it is based, is always a valid way of evaluating opinion evidence. If the panel does not believe the underlying facts it is entirely open to it to assess the opinion evidence as it did.
7. I feel that in the case at bar the IRB's findings are also supported by the evidence in the record. The psychological report mentions the facts reported by the applicant: it corroborates the trauma; it cannot corroborate the facts justifying granting of asylum. As Rothstein J. wrote in Rosales v. Canada (M.E.I.), [1993] F.C.J. No. 1454 (T.D.) (QL), at paragraph 14:
. . . a psychiatrist's letter does not, of itself, prove that an applicant meets the test for Convention refugee. At most, in this case, it is consistent with the applicant's story. But it is the factual evidence that must be relied upon to prove the qualifications for Convention refugee status.
8. The same reasoning is to be found in Al-Kahtani v. Canada (M.C.I.), [1996] F.C.J. No. 335 (T.D.) (QL), per MacKay J., at paragraph 14:
. . . I am not persuaded that the tribunal's determination of the weight to be given to the report was unreasonable. But even if it were, at most the report supports the applicant's difficulties with post-traumatic stress disorder, but not the particular facts that he alleges give rise to his claimed fear of persecution. In my opinion, that is the essence of the tribunal's conclusion in relation to the report and that conclusion cannot be said to be unreasonable or in error in law.
9. Further, such a psychological report cannot support an application which is otherwise completely deficient in credibility. The applicant's emotional state, quite visible according to the transcript, could to some extent have excused certain minor discrepancies, in view of the psychological evidence. However, in the case at bar it was not just the testimony which undermined credibility. The documentary evidence itself was contradictory, as witness the route taken by the applicant to come to Canada, the lack of documents to corroborate her marriage, her children and the medical care received in Peru or documents relating to the visa application which showed two Peruvian passports issued in 1998 and two declarations of civil status (separated and married). A third civil status (single) appeared on the military notebook and the notarial deed which created the company in which the applicant was a shareholder. Additionally, the Personal Information Form also raised problems, with inconsistencies and contradictions.
10. The applicant accordingly failed to show that the IRB infringed procedural fairness, nor was she able to show that the decision of this specialized tribunal was based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it (paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7): accordingly, this Court's intervention is not warranted.
11. Consequently, the application for judicial review is dismissed.
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"Yvon Pinard"
Judge |
OTTAWA, ONTARIO
November 2, 2004
Certified true translation
Jacques Deschênes, LLB
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-9238-03
STYLE OF CAUSE: ROSA YASMIN DOMINGUEZ NAPURI v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 22, 2004
REASONS FOR ORDER BY: Pinard J.
DATED: November 2, 2004
APPEARANCES:
Odette Desjardins FOR THE APPLICANT
Diane Lemery FOR THE RESPONDENT
SOLICITORS OF RECORD:
Odette Desjardins FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec