TB9-29437

RAD File / Dossier de la SAR : TB9-29437 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision April 14, 2021 Date de la décision Panel David Morris Tribunal Counsel for the person who is the subject of the appeal Michael F. Loebach Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] These are my reasons for allowing this appeal. The Appellant's claim will be referred back to the RPD for re-determination by a differently constituted panel. [2] The Appellant, XXXX XXXX XXXX XXXX, is a citizen of Jordan and is 24 years old. In Jordan, he had an affair with a young girl of his age who was from a powerful Bedouin tribe. In about September or October of 2013, after the Appellant's girlfriend became pregnant, she was murdered by her brother. The Appellant fears he will be killed by the brother or the girlfriend's family. [3] The Appellant came to Canada in XXXX 2014 to study. He claimed refugee protection in December 2017. Refugee Protection Division Findings [4] The Refugee Protection Division (RPD) found that credibility was determinative of the Appellant's claim. It found the Appellant had not provided corroborative documentation which should have been easily available. It found that the circumstances surrounding the Appellant's affair with his girlfriend were implausible. It found there was no evidence to connect the girlfriend to a powerful Bedouin tribe. It found there was no evidence of the girlfriend's murder or of her brother's conviction for that murder. It found the evidence as to the Appellant's mental state did not explain these issues. It gave no weight to letters from the Appellant's psychiatrist, lawyer, and father. Summary of Appellant's Arguments [5] The Appellant argues that his former counsel did not have time to evaluate whether the Appellant was fit to testify. The Appellant's mental status at the hearing was indicative of his inability to provide clear testimony. The panel erred in its credibility assessment by ignoring the Appellant's mental health condition. The hearing should have been adjourned. [6] The Appellant argues that the RPD ignored evidence that shows incidents of honour-based violence go unreported. It is plausible that the girlfriend's tribe would not want the story published. The Appellants submits it was unreasonable for the RPD to give little weight to the letters of the lawyer and the father. He argues the RPD did not adequately explain its conclusions with respect to the plausibility of the relationship with his girlfriend. [7] The Appellant argues he provided reasonable explanations for his delay in claiming protection. [8] Finally, the Appellant argues there is no state protection or viable Internal Flight Alternative (IFA) available to him in Jordan. NEW EVIDENCE The new XXXX/XXXX evidence presented by the Appellant is accepted, but the XXXX assessment from 2018 and the motel receipts from 2013/2014 are rejected. [9] According to the law,1 I can only accept evidence that: i. arose after the RPD decision; or ii. was not reasonably available at the time of the decision; or iii. you could not reasonably have been expected in the circumstances to bring to the RPD before the decision. [10] If the evidence meets one or more of these requirements, I must decide if the evidence is new, credible, and relevant before I can accept it.2 [11] The Appellant submits the following new evidence which he asks to be admitted: i. Appellant's affidavit, dated 9 March 2020;3 ii. XXXX assessment, dated 29 November 2018;4 iii. XXXX letter, dated 24 February 2020;5 iv. XXXX letter, dated 2 March 2020;6 v. XXXX assessment, dated 4 March 2020;7 vi. Motel receipts from 2013 to 2014;8 vii. Medication list, dated 2 March 2, 2020.9 [12] I find the Appellant's Affidavit essentially forms a part of his submissions in this appeal. I will consider it as a part of his Memorandum. [13] The psychological assessment from 29 November 2018 will not be admitted. This document arose and was reasonably available prior to the rejection of the Appellant's claim. At his hearing the Appellant clearly put his XXXX condition in issue. He requested and was given time to obtain further medical evidence along with his written submissions. Under these circumstances, I find the Appellant could reasonably have been expected to provide this document prior to the rejection of his claim. [14] The motel receipts will also not be admitted. On their face they are dated from 2013 and 2014 and therefore arose prior to the rejection of the Appellant's claim. [15] Although the Appellant asserts that his brother was only able to get these receipts the week before the Appellant's Record was filed, he has provided no explanation for why this is so. It is for the Appellant to show why these documents could not have been submitted. I find he has failed to do so. [16] The Appellant submits that it did not occur to him to try and obtain proof of his relationship with XXXX as he was focused on her murder. I do not find this explanation credible. The relationship goes to the heart of the Appellant's claim. He was represented by counsel and was obviously aware of the importance of supporting his allegations with evidence since he filed two packages of documents at his hearing - including letters from his lawyer and his father both of which indicate the Appellant was in a relationship with XXXX. I find the Appellant was clearly aware the bona fides of his relationship with XXXX was in issue. [17] I find these receipts were reasonably available and could reasonably have been expected under the circumstances to have been presented to the RPD prior to the rejection of the Appellant's claim. [18] Even if these documents had met the statutory requirements for admission, I find they are not credible as to the source and circumstance under which they came into existence. I note that while these receipts are all from the same motel, the Appellant's Basis of Claim (BOC) narrative indicates that, "... each time (he and XXXX met) we would meet at different places fearing her family seeing us together."10 I find that these receipts clearly contradict the Appellant's BOC narrative as they indicate they met at the same place each time. I find, on a balance of probabilities, that these receipts are not genuine. They will not be admitted. [19] The remainder of the new evidence, all of it relating to Appellant's medical and psychological state, arose after the rejection of the Appellant's claim. I find this evidence is new and relevant to the assessment of the Appellant's ability to testify and therefore to his credibility: which is the determinative issue in his claim. This evidence is credible to the limited extent that it appears to come from the sources indicated. The psychiatrist's letter, dated 24 February 2020, the Dr.'s letter, dated 2 March 2020, the psychosocial assessment, dated 4 March 2020, and the medication list, dated 2 March 2, 2020, will all be admitted. [20] I find an oral hearing is not necessary to reach a determination in this case. The request for an oral hearing is denied. ANALYSIS [21] My role is to look at all the evidence and decide if the RPD made the correct decision.11 [22] In my own assessment, I find the RPD failed to engage with the evidence of the Appellant's psychological and memory impairments and whether these could explain any of the credibility issues which it identified as reasons for rejecting the Appellant's claim. [23] At the outset of the hearing, counsel requested a pre-hearing conference and disclosed that the Appellant was suffering from XXXX and XXXX. Counsel provided a prescription showing that the Appellant was on medication.12 Counsel indicated that he believed the Appellant was able to testify but indicated he may wish to obtain a medical report. The RPD noted that the prescription listed possible side effects including dizziness and drowsiness or excitability. However, it found there was nothing indicating the medication might impair any intellectual faculty. The RPD said it would take this into consideration and if the Appellant needed a break he could be accommodated. [24] The Appellant testified that he had been taking the medication since before he left Jordan, and that he was being followed by a XXXX since coming to Canada. The Appellant was asked if he had a note from the XXXX. He said he did not but that he could get one. The Appellant was asked if he had any side effects from the medication. He stated that he was exhausted, and he gets XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. He said he was drowsy and anxious but that he was able to testify. The RPD indicated that this was normal and that anyone in the Appellant's situation would feel anxious. The RPD asked a second time if the Appellant was able to testify at the hearing. He said he could. [25] At several points during the hearing the Appellant indicated that he could not remember dates. While being questioned by his counsel, the Appellant appears to have had a panic attack. The Member stopped the hearing, called security, and asked if an ambulance was needed but the Appellant indicated he was able to continue. Counsel asked a few more questions and the hearing concluded. [26] At the close of the hearing counsel requested time to obtain further medical evidence and to provide written submissions which would take this new evidence into account. The RPD reluctantly agreed to this suggestion and the Appellant was given 11 days to provide further medical evidence and written submissions. Post-hearing, the Appellant submitted a letter from his XXXX who indicated he had been following the Appellant since 2015 and that the Appellant, "... has had a XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX."13 The letter indicates that it would not be surprising that the Appellant would struggle recalling past events in a stressful hearing environment. [27] The Appellant submits that the RPD erred in its assessment of the Appellant's state of mind. I take this to mean that the RPD erred in assessing how Appellant's medical or XXXX condition may have affected his testimony. The Appellant submits that it was unreasonable for the panel to dismiss his anxiety as normal and similar to all refugee claimants. The Appellant provides the new medical and psychological evidence on appeal to support this assertion. [28] In its reasons the RPD's consideration of the Appellant's XXXX state is limited to the following: While I respect the doctor's professional opinion, the letter does not help much in this claim. Even if I take into consideration the (Appellant's) memory issues and struggling with the dates, the narrative did not contain a single date and the issue was the lack of easily available evidence, contradictions, plausibility, and lack of subjective fear.14 [29] Although the XXXX letter which was before the RPD is less than fulsome, I find there was no real analysis by the RPD as to how the Appellant's memory issues might have affected his credibility. This is particularly so considering the Appellant's difficulties during the hearing which were clearly beyond what would normally be expected. [30] This is not to say that the mere existence of such XXXX difficulties, on their own, establishes the truth of the Appellant's allegations. As Federal Court stated, "[j]ust because a patient is suffering from psychological problems and manifests symptoms associated with those problems does not mean that the patient's account of past persecution as the cause of those problems can be believed."15 [31] Put another way, a XXXX report is not a cure-all for any and all deficiencies in a refugee claimant's testimony.16 However, I find this evidence was submitted not to prove past persecution, but to alert the RPD to the Appellant's XXXX condition and to the effect this may have had on his testimony.17 [32] Given the obvious difficulties at the hearing, I find the XXXX letter is probative. It is authored by a qualified XXXX who indicates he has followed the Appellant's case for several years. The relationship between the doctor and the Appellant clearly exists for medical reasons emanating outside of the refugee determination process. Its conclusions bear on the Appellant's ability to testify and to recall past events. [33] The RPD does not appear to have considered any of these factors. Instead, because it found the Appellant was not credible, it found the letter was not helpful. The jurisprudence warns against this type of circular reasoning.18 [34] I find that while the RPD was not obliged to accept the XXXX report as an explanation for the faults it found with the Appellant's testimony, it was required to state in clear terms why the evidence of the Appellant's XXXX state did not affect its conclusions.19 [35] On appeal, I have accepted new medical and XXXX evidence which is considerably more detailed than that which was before the RPD. I have considered this evidence and how it may have affected the Appellant's testimony in my analysis below. [36] The letter from the Appellant's XXXX submitted with the Appeal Record reiterates that the Appellant struggles with XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX It indicates the Appellant would have difficulty answering questions or recalling events in a stressful hearing. Although describing the Appellant's memory issues as severe and prominent, the XXXX provides no details as to what exactly these issues are or how they were identified. [37] I accept from the XXXX letter that the Appellant suffers from ongoing pain due to his 2018 accident. However, I place no weight on the XXXX comments in relation to XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX since I find him unqualified to provide any expert opinion on these issues. [38] The Appellant's XXXX assessment was completed by a qualified XXXX after an initial assessment followed by eight treatment sessions. Although it indicates the Appellant is a victim of pre- and post-migration trauma, no details of the pre-migration trauma are set out. I am also concerned that the assessment appears to offer a diagnosis XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX are authorized only to identify and treat symptoms or sequelae of mental health disorders. They have no authority to render diagnoses.20 [39] Nonetheless, I note that the XXXX in this case administered a questionnaire intended to measure the Appellant's memory. On the third questionnaire, that examines his memory ability- his score was weak; he gave different answers. On the clinical interview/questionnaire, he has some low level of remembering stuff, meanwhile, he was irritated and unstable, unfocused when he was questioned, (the Appellant) indicated that: "these memories/this hurts me; I don't feel good at all!", The overall results from the testing and clinical interviews suggest that (the Appellant) suffers from symptoms of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX.21 [40] The list of medications which has been submitted into evidence shows that the Appellant has been on medication since even before his accident in April 2018. Some of this medication appears to be for pain. However, the document is of limited value since it does not indicate which medication the Appellant was on at the time of his hearing or what the side effects of any medication would be. [41] From all of this, I accept that the Appellant suffers from pain related to his 2018 accident and that he has suffered from XXXX XXXX XXXX since before he came to Canada and that he currently has symptoms or sequelae of XXXX. I also accept that the Appellant has suffered from "XXXX XXXX XXXX". These reports reference trauma that occurred prior to the Appellant's departure from Jordan, although no details of this trauma are provided. [42] Having accepted that the Appellant has undergone trauma, wherever it occurred, I find it is necessary to consider his testimony through the lens of that trauma.22 The Appellant has established that he suffers from chronic pain and XXXX as a result of a motor vehicle accident in Canada and that he has mental health issues which existed prior to his flight from Jordan. These circumstances have negatively affected his XXXX and therefore his ability to recall dates and events which may have clarified his testimony. The RPD erred by failing to assess the Appellant's testimony in light of these issues. [43] I find support for this conclusion in the fact that, despite being questioned by the RPD about his XXXX health issues here in Canada, the Appellant did not mention that he had been involved in a motor vehicle accident, or that he had been assessed by a XXXX as a result, or that he had undergone two operations for scoliosis and suffers from chronic pain. In my assessment, this is a clear indication that the Appellant was not capable of clearly articulating readily available evidence which might have assisted him at his hearing. [44] I also note, for the record, that former counsel was of little assistance to the Appellant in the RPD proceedings since he does not appear to have met with his client to prepare him until just prior to the hearing, Counsel was therefore uninformed about an issue which was crucial to adequately representing his client. In my opinion, this is poor practice. [45] Having determined that the RPD erred, I have decided that this appeal must be allowed. However, in my opinion, I am unable to reach a determination of this claim without hearing the evidence which was presented to the RPD. CONCLUSION [46] The appeal is allowed. Pursuant to section 111(1)(c) of IRPA, the Appellant's claim is referred back to the RPD for re-determination by a differently constituted panel. (signed) David Morris David Morris 14 April 2021 Date 1 Subsection 110(4), Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 2 Canada (Citizenship and Immigration v. Singh, 2016 FCA 96; Canada (Citizenship and Immigration) v. Raza FC 385. 3 Exhibit P-2, Appellant's Record, pp. 1-10. 4 Exhibit P-2, Appellant's Record, pp. 13-17. 5 Ibid., pp. 18-19. 6 Ibid., pp. 20-21. 7 Ibid., pp. 22-36. 8 Ibid., pp. 39-53. 9 Ibid., pp. 54-57. 10 Exhibit RPD-1, RPD Record, Exhibit 2, at p. 11, lines 16-17. 11Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 12 This prescription does not seem to have been entered into evidnce by the RPD as it should have been. However, the Appellant has provided a list of medications (Appellant's Record, at pp. 54-57) which I have entered as new evidence. The Appellant asserts that the prescription that he presented at the RPD was part of this new document which is a complete list of his medications. 13 Exhibit RPD-1, RPD Record, Exhibit 7, p. 349. 14 Exhibit RPD-1, RPD Record, RPD Reasons, p. 5, at para. 6. 15 Mico v. Canada (Citisenship and Immigration) 2011 FC 964, at para. 54. 16 Arizaj v. Canada (Citisenship and Immigration) 2008 FC 774, at para. 26. 17 Exhibit P-2, Appellant's Record, at p. 117, para. 97. See Mico v. Canada (Citisenship and Immigration) 2011 FC 964, at para. 49. 18 Sterling v. Canada (Citisenship and Immigration) 2016 FC 329, at para. 8. 19 Mico v. Canada (Citisenship and Immigration) 2011 FC 964, at para. 56. 20 See Psychotherapy Act, 2007, S.O. 2007, c. 10, Sched R, at s. 4; see also Regulated Health Professions Act, 1991, S.O. 1991, c. 18, at s. 27. 21 Exhibit P-2, Appellant's Record, p. 30. 22 Gurses v. Canada (Citisenship and Immigration) 2021 FC 83, at para. 11. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-29437 RAD.25.02 (January, 2020) Disponible en français 2 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (January, 2020) Disponible en français