Date: 20050729
Docket: IMM-5676-04
Citation: 2005 FC 1047
Ottawa, Ontario, this 29th day of July, 2005
Present: The Honourable Mr. Justice Mosley
BETWEEN:
MAYA GARDANZARI
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Maya Gardanzari is a 57-year-old citizen of Georgia. She initially claimed a fear of persecution as a member of a minority group as a Yezidi Kurd, because she converted to Orthodox Christianity, and as a woman abused by her husband. In a decision dated June 7, 2004, a panel of the Refugee Protection Division of the Immigration and Refugee Board (the "Board") found that she was neither a Convention refugee nor a person in need of protection. She sought judicial review of that decision under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 ("IRPA").
[2] At the hearing of this application, counsel for Ms. Gardanzari advised the court that the applicant was taking issue only with the Board's treatment of her spousal abuse claim and, in particular, with the Board's assessment of her psychological condition.
[3] The hearing before the Board took place on three separate dates: September 3rd, 2003, December 16th, 2003 and January 12th, 2004. A psychological report prepared by Dr. Pilowsky dated August 21st, 2003 was submitted at the first hearing date. Dr. Pilowsky had assessed Ms. Gardanzari on one occasion and concluded that she was suffering from Post-traumatic Stress Disorder (PTSD) due to traumatic experiences in her country of origin.
[4] The September 3rd hearing was adjourned by the Board because of concerns about the quality of the applicant's evidence and to allow for a more specific evaluation to be conducted than that described in Dr. Pilowsky's report. Accordingly, she was examined by a psychiatrist, Dr. Yaroshevsky, on four occasions and he submitted a report dated December 12, 2003. In that report, Dr. Yaroshevsky confirmed the diagnosis of PTSD and noted "some elements of psychotic depression." He stated that "there were no thought or perceptual disorders detected...her memory seems to be satisfactory...she does not form a delusional content."
[5] The hearing was not concluded on December 16th, as questions arose about the legitimacy of the sole documentary evidence submitted in support of the applicant's claim that she had been married and had left a daughter in Georgia - a document purporting to be the daughter's birth certificate. Forensic examination proved inconclusive, but identified a number of concerns consistent with forged documents.
[6] Following the last hearing date, Dr. Yaroshevsky reviewed his file notes and submitted a further report dated January 13, 2004. He stated that his earlier report had not contained important information that might shed some light on the applicant's mental state when the credibility of her claim was being questioned. That information was that she had presented as confused and nervous and could not concentrate on the topic of discussion or answer questions clearly. Dr. Yaroshevsky stated that her PTSD could be the reason why she appears to be inaccurate and inconsistent in her recollections.
[7] In its reasons for decision, the Board found that Mrs. Gardanzari was not credible in her testimony. Based on the medical assessments, the Board found that she was capable of giving testimony. It also found that the only documentary corroboration of the relationship with her alleged abuser, the birth certificate, was not genuine.
[8] The Board held that Mrs. Gardanzari had trouble with memory only when discussing details about her life with her alleged abuser and concluded that she was not abused by her husband or anyone she alleged to be her husband. Of particular note, the Board found disagreement between the applicant's personal information form and her oral testimony about the year of his birth. On a balance of probabilities, the Board found that the applicant did not know his birth date because she was not married to him.
[9] The Board did not believe that Mrs. Gardanzari had converted to the Orthodox religion because she had only vague knowledge of the religion and had not joined an Orthodox congregation in Canada.
[10] With respect to the medical reports, the Board preferred Dr. Yaroshevsky's earlier diagnosis - in which he had found no thought or perceptual disorders - to his later report, because the earlier one was written shortly after the patient evaluation and before the hearing. The Board erred in stating twice that the later report had been made more than a year after the first. It is difficult to understand how this error occurred other than from simple confusion between the years when the panel member came to prepare her reasons. In any event, I do not find it to have been material to her findings.
[11] A high level of deference should be accorded to the decisions of the Board made on the basis of credibility findings. The appropriate standard of review is patent unreasonableness. Unless it is shown that the Board's inferences and conclusions are so unreasonable that they could not have been drawn, or the Board appears to have drawn them capriciously or without regard to the evidence, this Court should not interfere, whether or not it agrees with those inferences: Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.).
[12] The applicant submits that the Board failed to give the evidence of the effects of the applicant's PTSD on her ability to communicate the proper weight or recognition on the crucial issue of credibility: Fidan v. Canada (Minister of Citizenship and Immigration) [2003] F.C.J. No. 1606 (F.C.); C.A. v. Canada (Minister of Citizenship and Immigration) [1997] F.C.J. No. 1082 (T.D.); Dink v. Canada (Minister of Citizenship and Immigration) [2003] F.C.J. No. 471(T.D.).
[13] I cannot agree. The Board was obliged to consider the medical reports in assessing credibility and did so. It accepted the evaluation that the applicant was suffering from PTSD, but held that the factual foundation upon which the medical reports were based was not credible. That decision was within the Board's discretion: Canada (Minister of Citizenship and Immigration) v. Szoradi 2003 FCT 388.
[14] This is not a case in which medical reports were ignored. Indeed, the Board recognized the need for a proper assessment to be made when the difficulties with the applicant's evidence first emerged. But the doctor through his reports could not usurp the Board's role as trier of fact. Where it finds, as here, that the applicant testified generally in a coherent or rational manner, the Board may give medical reports little weight if satisfied that there is no credible basis for the claim.
[15] The application is therefore dismissed. No serious questions of general application were proposed and none will be certified.
ORDER
THIS COURT ORDERS that this application is dismissed. No questions are certified.
" Richard G. Mosley "
F.C.J.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5676-04
STYLE OF CAUSE: MAYA GARDANZARI
AND
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: June 8, 2005
REASONS FOR ORDER
AND ORDER BY : The Honourable Mr. Justice Mosley
DATED: July 29, 2005
APPEARANCES:
Arthur I. Yallen FOR THE APPLICANT
Jamie Todd FOR THE RESPONDENT
SOLICITORS OF RECORD:
ARTHUR I. YALLEN FOR THE APPLICANT
Barrister & Solicitor
Toronto, Ontario
JOHN H. SIMS, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario