Date: 19991014
Docket: IMM-5489-98
BETWEEN:
LILIANA ISABEL VILDOZA
LAURA NOELIA SOSA (minor)
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] Liliana Isabel Vildoza, of Mendoza, Argentina, has been a victim of two abusive relationships. The first was with her husband and continued through July 1990, when the couple separated permanently. The second was initiated by her employer in June 1991. The severe and recurrent physical abuse worsened until Ms. Vildoza left for Canada with her daughter in December 1995.
[2] The panel of the Convention Refugee Determination Division, after considering what it first viewed as implausibilities, substantially accepted the veracity of Ms. Vildoza"s allegations concerning her gender-related fear of persecution and concluded that the applicants had "demonstrated clear and convincing proof that state protection was not available to them against [Ms. Vildoza"s] husband or her employer in Mendoza".1
[3] However, her claim for refugee status, as well as that of her minor daughter, was refused on the ground that she had an internal flight alternative in Buenos Aires, where one of her brothers resides and where she herself worked in 1976-77. Buenos Aires is situated some one thousand kilometres east of Mendoza. Ms. Vildoza also has a sister who lives in Rawson, Argentina, approximately one hundred kilometres west of Buenos Aires. Her mother visits the region regularly.2
[4] The applicants challenge the tribunal"s conclusion concerning the internal flight alternative on the grounds that it was based on contradictory and perverse findings of fact. The applicants also submit that the tribunal decision was made without regard for a report concerning the psychological condition of Ms. Vildoza.
[5] The applicants" first argument was that the tribunal, having found an absence of state protection in Mendoza, could not properly conclude that there existed a safe haven in another part of Argentina, apparently under the control of the same police and other government agencies with respect to which the employer allegedly had contacts and influence. The applicants rely on the following statement of the Court of Appeal in Canada (Minister of Employment and Immigration) v. Sharbdeen:3 "Once a well-founded fear of persecution at the hands of the national army in a part of the country it controlled had been established, it was not reasonable to expect the respondent to seek refuge in another part of Sri Lanka controlled by the same army."
[6] In my view, counsel for the respondent properly distinguished the facts in this case from the principle in Sharbdeen. The tribunal"s finding that the applicants could safely live in Buenos Aires was based on the absence of persuasive evidence that Ms. Vildoza"s former employer had "either the ability or any interest in pursuing her to seriously harm her or her daughter".4 Put simply, the tribunal did not accept that the employer would harass the applicants in Buenos Aires. In this context, the issue of the state protection in Buenos Aires is not relevant.
[7] Moreover, it was open to the tribunal, on the facts of this case, to find that the applicants were at risk in Mendoza and could not rely on the police or judicial authorities there, and yet question the bald assertions by Ms. Vildoza, unsupported by specific evidence, that the employer"s apparent contacts with certain government institutions would extend throughout the country.
[8] The applicants" second argument is that the tribunal erred in linking the employer"s failure to pursue Ms. Vildoza in Canada to its finding that he would not harass her and her daughter in Buenos Aires. In particular, according to the applicants, the tribunal failed to take into consideration three relevant facts: (a) the employer would have difficulty in obtaining a visitor"s visa to enter Canada because of his earlier assistance in obtaining a travel permit for Ms. Vildoza in December 1995, subsequent to which she sought refugee status; (b) the employer knew that Ms. Vildoza"s brother-in-law had been imprisoned in Canada for assaulting her sister; and (c) Canada"s more severe enforcement of its laws against spousal abuse was sufficient to discourage the employer from pursuing the applicants in this country.
[9] Even if the tribunal"s reliance on the employer"s failure to follow the applicants to Canada may be questionable, I am not satisfied that this constitutes a reviewable error when viewed in the context of other evidence that the employer would not pursue the applicants in Buenos Aires. He did not attempt to harm Ms. Vildoza"s daughter when she was sent, for safety reasons, to live with family in another part of Mendoza. He facilitated their departure from Argentina by paying for their travel to Canada in December 1995. The tribunal also questioned the "overwhelming interest"5 that the employer, a successful entrepreneur with extensive business interests in Mendoza, would have in seeking the applicants in Buenos Aires, after their absence from Argentina since late 1995. Further, the tribunal did not accept that the employer had recently been inquiring about the applicants" whereabouts.
[10] Finally, the applicants attack the decision under review for the tribunal"s failure to refer to a statement in the report filed by psychologist Dr. Judith Pilowsky that "if Ms. Vildoza were made to return to Argentina, the site of the traumatizing stressor, she would become retraumatized and her psychological condition worsened".
[11] In Singh v. Canada (Minister of Citizenship and Immigration),6 Justice Richard, as he then was, noted:
| The tribunal also committed an error by failing to have regard to the psychological report in a more general sense. This evidence appears to have been reliable and directly relevant to the applicants" claims. ... In my view, it is also a relevant factor for determining whether an I.F.A. is reasonable in the particular circumstance of the applicants. |
...
| ... A psychological or medical report may provide objective evidence that it would be "unduly harsh" to expect the applicant to have been persecuted in the past in one part of the country to move to a less hostile part of the country. |
[12] In Taher v. Canada (Minister of Citizenship and Immigration),7 Justice Rothstein found that the tribunal"s failure to consider a psychological report, which was "a centre-piece" of the case, justified his intervention with respect to the finding that there existed an alternate flight alternative. In the words of Justice Rothstein:
| Where the evidence is specific and important to the applicant"s case, prima facie credible and persuasive, I think a panel has some obligation, even very briefly, to explain why it is not persuaded by that evidence. In this case, I am not satisfied that the panel did have regard for the psychological assessment in arriving at its conclusion. [Emphasis added.] |
In Taher, the panel made a passing reference to the psychological assessment:
| The panel also considered the psychological assessment of Dr. Hap Davis in relation to the reasonableness of the claimant and his family relocating to Islamabad. The panel concluded in the particular circumstances of the claimant and his family that it would not be unreasonable for them to relocate to Islamabad.8 |
[13] In Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration),9 Justice Evans was also called upon to consider a report of Dr. Pilowsky. Justice Evans referred to Dr. Pilowsky"s report in some detail:
| In her evidence, which was unchallenged, Dr. Pilowsky described the applicant"s symptoms and concluded that: |
| In my clinical opinion, having reviewed the clinical data emanating from the interview and after analysing the scores from the testing materials, Mr. Cepeda is currently suffering from symptoms of Posttraumatic Stress Disorder. .... This client was likely suffering the full blown PTSD while living in Mexico but it appears that some of his symptoms, such as his nightmares, are abating in Canada. |
| This client"s PTSD condition is a direct result of his traumatic experiences in Mexico as he reported no prior history of psychological problems. ... |
| Posttraumatic Stress Disorder is a condition highly susceptible to intensification and reinvigoration of symptoms if the sufferer is exposed to triggering stimuli reminiscent of the original trauma. Consequently, it is my professional opinion that if Mr. Cepeda were made to return to Mexico, the site of the traumatizing stressor, he would become retraumatized and his psychological condition would worsen. |
| If the client is allowed to remain in Canada, the chances for recovery are more promising particularly once the anxiety of his hearing vanishes. |
In Cepeda-Gutierrez, the panel made no reference to Dr. Pilowsky"s report in its decision.
[14] Justice Evans noted that the evidence did not disclose how Dr. Pilowsky would define "the precise location of the site of the applicant"s traumatizing stressor". He went on to conclude that the psychological report was important evidence and the panel"s failure to take it into consideration was fatal to the integrity of its decision. It is useful to refer specifically to the rationale of Justice Evans" conclusion:
| We do not know, of course, how Dr. Pilowsky would define the precise location of the site of the applicant"s traumatizing stressor. Nonetheless, in light of the psychological evidence before it, the Refugee Division erred in finding that it would not be unduly harsh for the applicant to relocate in Mexico outside Mexico City. The fact that the Refugee Division found that, in other respects, it would not be unreasonable to expect the applicant to return - such as the employment prospects of the applicant and his wife - does not mitigate the effect that Dr. Pilowsky predicts a return to Mexico is likely to have on his psychological condition. Indeed, some of those symptoms, such as depression, nightmares and a feeling of detachment, are likely to make it much more difficult for him to undertake the search for new and different employment with the necessary energy and motivation. |
| Finally, I must consider whether the Refugee Division made this erroneous finding of fact "without regard for the material before it." In my view, the evidence was so important to the applicant's case that it can be inferred from the Refugee Division"s failure to mention it in its reasons that the finding of fact was made without regard to it. This inference is made easier to draw because the Board"s reasons dealt with other items of evidence indicating that a return would not be unduly harsh. The inclusion of the "boilerplate" assertion that the Board considered all the evidence before it is not sufficient to prevent this inference from being drawn, given the importance of the evidence to the applicant"s claim.10 [Emphasis added.] |
[15] It is difficult not to note that Dr. Pilowsky"s conclusions concerning the psychological conditions of both Ms. Vildoza and Mr. Cepeda (in Cepeda -Gutierrez) are cast in substantially identical terms. Again, in our case, it is not clear whether Dr. Pilowsky was referring to Mendoza or any location in Argentina when she noted that the applicants" return to that country, "the site of the traumatizing stressor", would worsen Ms. Vildoza"s psychological condition. Indeed, there is no evidence that this distinction was one she was asked to consider.
[16] In Taher and Cepeda-Gutierrez, counsel"s submissions before the refugee panels focussed specifically and emphatically on the psychologists" reports concerning the claimants" post-traumatic stress disorder in the context of the internal flight alternative.11 The principal issue in the applicants" memoranda of law in support of those applications for judicial review was the failure of the panels to consider the psychologists" reports in the internal flight alternative analyses.
[17] Before the C.R.D.D., Ms. Vildoza"s former counsel did not mention her client"s psychological condition or the report of Dr. Pilowsky when specifically asked to address the I.F.A. issue during argumentation.12 In this Court, the issue was only raised in oral submissions, without objection from the respondent.
[18] I am satisfied that the tribunal considered Dr. Pilowsky"s report in this case, to the extent that it was relied upon by the applicants to support Ms. Vildoza"s claim of gender-related persecution. The report itself does not specifically address the chances of her psychological condition worsening if she were to return to a place in Argentina other than Mendoza, such as Buenos Aires where she has family and she has previously lived. The applicants" then counsel did not refer to Dr. Pilowsky"s report when she was asked by the tribunal to address the internal flight alternative issue. It would be inappropriate, in my view, to set aside this decision because its reasons do not refer to a report, which is itself at best equivocal concerning the internal flight alternative and which was not relied before the tribunal on this issue. In Taher and Cepeda-Gutierrez, the treatment of the psychologist"s report before the panel enabled my colleagues to characterize that evidence as "important" for the internal flight alternative analysis. I cannot do so in this case.
[19] In summary, I find no reviewable error in the decision under review and the application will be dismissed. The parties may file further submissions concerning the certification of a question within seven (7) days of the issuance of these reasons.
[20] While another panel might have decided otherwise, this tribunal determined that Buenos Aires was an internal flight alternative which would not be unduly harsh. Unfortunately for the applicants, I have not been able to conclude that this finding discloses a reviewable error. This case, however, invites the close examination of the Minister and her officials. The Convention Refugee Determination Division accepted Ms. Vildoza"s subjective fear of her abusers. While she may not have the legal status of a refugee, her concern in particular for the unpredictable behaviour of her former employer, who subjected her to grievous abuse, is not totally unwarranted. This is one of the humanitarian and compassionate considerations which might allow the mother and daughter, who have been in Canada for almost five years, to remain in this country.
"Allan Lutfy"
J.F.C.C.
Ottawa, Ontario
October 14, 1999
__________________2 Tribunal record, pp. 333 and 379.
3 (1994), 23 Imm. L.R. (2d) 300 (F.C.T.D.) at paragraph 5.
6 (1995), 30 Imm. L.R. (2d) 30 (F.C.T.D.) at pp. 231-32.
7 (1998), 157 F.T.R. 233 at paragraph 9.
9 (1998), 157 F.T.R. 35 at paragraphs 24 through 28.
11 In Taher , supra note 7, IMM-265-98, see the tribunal record at pp. 302-3. In Cepeda-Gutierrez, supra note 9, IMM-596-98, see the tribunal record at pp. 482-83.