Toronto, Ontario, November 23, 2006
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
HANOKH IZHAK
DANIEL TESMA
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
REASONS FOR ORDER AND ORDER
[1] In the present Application, the Applicant, and her two young children, all citizens of Israel, challenge the decision of the Refugee Protection Division (RPD) of the Immigration and Refugee Board, dated January 20, 2006, in which their claim for protection was rejected.
[2] The Applicant bases her claim on prospective fear of violence at the hands of her ex-common law husband should she return to Israel. In the hearing before the RPD, the Applicant recounted a history of suffering extreme violence from this man, including recent death threats. A primary element of her fear is the fact that her ex-common law husband will be released from jail in Israel within a year having served his sentence on a conviction for murder.
[3] In support of her claim before the RPD, the Applicant submitted a psychological report to prove that she suffers from post-traumatic stress disorder as a result of the abuse she has experienced. It is agreed that the psychological evidence is relevant with respect to the Applicant’s willingness to seek state protection in Israel, should she return.
[4] The most cogent feature of the psychological report is the following expert opinion:
With regard to [the Applicant’s] psychological condition, Ms. Tesema is presently experiencing symptoms consistent with the diagnosis of Post Traumatic Stress Disorder (PRSD). She meets the criterion for trauma, having experienced years of abuse with danger to her life and the well being of her children. Currently, the trauma is persistently re-experienced as recurrent distressing and intrusive recollections as well as recurrent and distressing dreams (e.g. being stabbed). Flashbacks are experienced as well.
(Applicants’ Record, p.47)
However, with the following statement, in effect, the RPD refused to accept the expert opinion into evidence:
Dr. Bodenstein’s second letter largely contains the same information as in the first letter, often using the same words. However, in his second letter he gives a diagnosis, namely that the claimant is suffering from Post Traumatic Stress Disorder. He states that she ‘meets the criterion for trauma, having experienced years of abuse with danger to her life and well-being of her children.’ He gives no evidence as which standard tests he used to arrive at his diagnosis. Furthermore, the claimant has not suffered abuse from her husband since he went to prison in 1998, almost eight years ago. Nor has she presented any evidence that she sought psychological or psychiatric assistance to deal with her trauma while she was living in Israel. I find that the psychologist’s report is based on the claimant’s testimony to him, some of which was found to be lacking credibility in the hearing room.
[Emphasis added]
(Applicants’ Record, p.21)
[5] The issue for determination is whether, in rejecting the opinion, the RPD committed a reviewable error. In Gina Curry v. Minister of Citizenship and Immigration, IMM-10078-04, dated December 21, 2005, Justice Gauthier clearly delineates an immigration officer’s discretion in assessing psychiatric or psychological evidence:
As it has been mentioned on numerous occasions by this Court, immigration officers are not experts in psychology or psychiatry. They cannot simply discard experts’ opinions without giving at least one reason that stands to probing examination.
Applying this opinion to the present case, I agree with Counsel for the Applicant’s argument that the refusal to accept the psychological opinion does not meet the standard expressed.
[6] In my opinion, the RPD’s statement does not provide any legitimate reason for not accepting the professional opinion. Expressed in the words used is the RPD’s belief that the opinion is unsubstantiated, and contrary to its own opinion of the Applicant’s mental state. I find that it was not open to the RPD to reject a professional opinion on this basis, and to do so, constitutes the making of a capricious finding. As a result, the RPD’s decision was rendered in reviewable error.
ORDER
Accordingly, the RPD’s decision is set aside and the matter is referred back to a different panel for re-determination.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-773-06
STYLE OF CAUSE: ALEMTSEHY TESEMA, HANOKH IZHAK, DANIEL
TESMA v. THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
DATE OF HEARING: NOVEMBER 21, 2006
APPEARANCES:
|
MICHAEL CRANE
|
|
|
JOHN PROVART
|
SOLICITORS OF RECORD:
|
IMMIGRATION AND FAMILY LAW OFFICES, TORONTO
|
|
|
JOHN H. SIMS, Q.C. DEPUTY ATTORNEY GENERAL OF CANADA
|
|