Ehigiator v. Canada (Citizenship and Immigration)

Ehigiator v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2023-03-06
Neutral citation
2023 FC 308
File numbers
IMM-3260-22
Notes
An amendment was made on March 20, 2024
Decision Content
Date: 20240320
Docket: IMM-3260-22
Citation: 2023 FC 308
Ottawa, Ontario, March 20, 2024
PRESENT: The Honourable Mr. Justice Régimbald
BETWEEN:
OSAHENOME EHIGIATOR
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AMENDED JUDGMENT AND REASONS
I. Overview [1] The Applicant, Osahenome Ehigiator, is a citizen of Nigeria. She fears persecution or harm from her ex-partner due to domestic abuse. In one particular instance, the alleged abuse was a factor in the tragic death of their infant son. The Applicant’s alleged fear of persecution is based on membership in a particular social group, namely women subject to domestic abuse as recognized in Chapter 4 - Grounds of persecution - Nexus - Immigration and Refugee Board of Canada (irb.gc.ca)) (Immigration and Refugee Board of Canada, Guideline issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act: Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, effective November 13, 1996) [Guideline 4].
[2] The Applicant is seeking judicial review of the Refugee Appeal Division [RAD] decision [the Decision] dated March 11, 2022, upholding a decision of the Refugee Protection Division [RPD] dated September 24, 2021, ruling that the Applicant is neither a Convention refugee nor a person in need of protection as defined in sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2011, c 27 [the IRPA]. The RAD agreed with the RPD that the Applicant’s claim was not credible.
[3] For the reasons that follow, the application for judicial review is allowed. After consideration of the applicable law and the evidence before the RAD, I am not satisfied that the RAD’s decision meets the standard of reasonableness. In my view, the Decision does not explain why no or very little weight was given to the objective evidence suggesting that the Applicant had been subject to domestic abuse. The RAD had to weigh the entire evidence, holistically and contextually, in its decision-making process and explain why the remaining objective evidence could not rehabilitate the Applicant’s credibility regarding her alleged fear; and it did not properly do so.
[4] Before the RPD, the Applicant introduced into evidence two medical reports from Nigeria indicating that she had to go to the hospital twice as a result of what she claimed were distinct incidents of domestic abuse from her ex-partner, one that lead to the death of their infant child who was injured during an alleged spousal attack. The Applicant also introduced evidence of a pastor indicating that she had left her house and sought refuge in a church because of domestic abuse. The church granted refuge and, when the threats from her partner became unbearable, raised repeated offerings to assist her financially to leave for Canada. Finally, the Applicant introduced into evidence a medical report from a Canadian medical doctor who indicated that the Applicant suffered from severe depression, was under medication, and that this could impair her capacity to testify.
[5] The RAD rejected the Applicant’s credibility on the basis of two specific contradictions made during her testimony, relating to the evidence found in the two Nigerian medical reports. The RAD was entitled to do so. However, the RAD was not entitled to dismiss without explanation the remaining objective evidence, including the information in those same Nigerian medical reports, suggesting that notwithstanding those contradictions, there could be an objective and consistent narrative of actions taken by the Applicant on the basis of her subjective fear of persecution because of domestic abuse.
[6] Notably, the two medical reports from Nigeria specifically note that the Applicant attended because of alleged domestic abuse. The RAD selectively relied on parts of those two medical reports to reject the Applicant’s credibility, but failed to explain why other parts of the same medical reports indicating the reason for both hospital admissions were not credible.
[7] Moreover, un-contradicted evidence indicated that the Applicant did leave her home and sought refuge in a church, because of domestic abuse. The RAD dismissed that evidence as not being first-hand evidence that could rehabilitate the Applicant’s credibility on the two noted contradictions regarding the Nigerian medial reports. In doing so, the RAD failed to explain why the first-hand evidence of the pastor relating to the continuing threats of the ex-partner, motivating the church to raise offerings to help her depart for Canada because of those threats, was not relevant or reliable.
[8] Finally, the RAD noted that the Applicant’s past “trauma” could not explain the contradictions she made during her testimony. However, the RAD was in possession of a recent medical report from Canada indicating that the Applicant was diagnosed with severe depression and currently under medication. In the circumstances, that recent medical report suggested that the Applicant was a vulnerable person and that she “may have trouble relaying the details of her traumatic past as she complains of distractibility and poor concentration [and that] [d]ifficulties in memory and concentration are common symptoms in persons suffering from depression”. While specifically noting the medical report, the RAD does not explain why that recent medical evidence cannot justify the contradictions in the Applicant’s testimony – instead only relying on it to decide that she was not a “vulnerable person” in the sense referred to in Guideline 8: (IRB, Chairperson Guideline 8: Procedures with Respect to Vulnerable Persons Appearing Before the IRB; Effective date: December 15, 2006; Guideline issued by the Chairperson pursuant to paragraph 159(1)(h) of the Immigration and Refugee Protection Act) [Guideline 8].
[9] In my view, the RAD made its decision on a selective examination of the evidence and did not explain why some evidence was given no or little weight. I must therefore send the matter back for redetermination before a different member of the RAD.
II. Background [10] The Applicant is a citizen of Nigeria. Her ex-partner, Obi Emeka [ex-partner], is a Nigerian police officer. They began cohabiting in September 2015 and the Applicant became pregnant with their child.
[11] On January 3, 2016, the Applicant learned that her ex-partner already had two wives and two sons with one of these wives. After confronting him regarding these marriages, he threatened to beat her and revealed that he was a member of the Aye Confraternity. Item 7.27 of the National Documentation Package [NDP] from Nigeria mentions that the Aye Confraternity is a secret cult created in the 1970s to uphold the core nature of African culture. The cult eventually became an organized criminal group committing violence in Nigeria and abroad.
[12] The ex-partner was a controlling person, forbidding the Applicant from visiting her family and friends, and forbidding her to leave the house while he was at work. During the period in which they were living together, he allegedly sexually, physically and emotionally abused the Applicant.
[13] On or about February 22, 2016, the ex-partner beat the Applicant because he found her talking to neighbours. After this assault, the Applicant, who was pregnant, began to experience bleeding and fear for the loss of her unborn baby. She therefore went to the hospital at around 7:15 PM.
[14] According to the Nigerian medical report, the Applicant was semi-conscious on admission. She told the doctor that she was 38 weeks pregnant and was “beaten by her husband.” She was given antibiotics, analgesics and hematinic with strict bed rest and was asked to come back for a follow-up visit in the following two weeks. The medical report is not clear as to the date of admission to hospital, other than to state it was at 7:15 PM. The medical report does state that she was discharged on February 22, 2016.
[15] When she returned from the clinic, the Applicant called the police. When the police arrived, the officers saw the ex-partner and allegedly stated it was a domestic issue and that hence, the Applicant ought to be respectful to her partner.
[16] After that incident, the Applicant’s mother tried to take her to the family house to help her with the pregnancy, but the ex-partner refused.
[17] On April 5, 2016, the Applicant’s son was born. A week later, she left the hospital and moved to her parents’ house. However, on April 15, 2016, the ex-partner, accompanied by fellow police colleagues, visited the house of the Applicants’ parents and forced the Applicant to return to his house.
[18] In December 2016, the Applicant decided to return to work as the ex-partner hardly gave her any money to support her and their son. The ex-partner threatened to kill her if she did.
[19] On January 15, 2017, the Applicant still decided to return to her former place of employment, despite the threats she had received from her ex-partner. She arranged for her son to be cared for by her mother while she was working.
[20] On that same day, the ex-partner returned home after work before the Applicant, and as she was entering the house with her son swaddled on her back, he began to beat her.
[21] During the fight, the baby was injured. Both the Applicant and the ex-partner rushed their son to the hospital. According to the medical report, the baby was brought in with “multiple injury [sic] due to fall from the mother [sic] back during a fight between both parents.” The baby was diagnosed with broken ribs.
[22] On January 19, 2017, the baby had complications from his injuries and the Applicant brought him again to the hospital while her ex-partner was at work. The baby died later that day.
[23] After this event, the Applicant moved back to her parents’ residence and in mid-February 2017, the ex-partner began to forcefully demand for her to return to their home and threatened to kill her when she refused. The police were called on the scene and spoke with the ex-partner, but he was not arrested.
[24] Following this incident, the Applicant was harassed by an unknown group of men and her parents’ house was attacked twice during the night. Following those threats, the Applicant’s mother sought help from their pastor, Pastor Osahon.
[25] On March 30, 2017, the Applicant went to live at the church. Pastor Osahon explains in his letter that was introduced into evidence before the RPD that the Applicant came to the church to seek refuge “following repeated beatings from her boyfriend.” He then states in his letter that he introduced her to a travelling agent named Mr. Ogbede “when the threat from her husband became unbearable.” Pastor Osahon mentioned that the “church had to raise repeated offering to assist [the Applicant] financially for her to travel, so that the boyfriend does not take her life after she lost her baby.”
[26] On November 14, 2017, the Applicant entered Canada by way of illegal border crossing, and subsequently made a refugee protection claim.
III. RPD Decision [27] The RPD found that the Applicant had not satisfied her burden of establishing a serious possibility of persecution on a Convention ground under section 96 of the IRPA. The RPD also found that, on a balance of probabilities, the Applicant would not be subject to a risk to life or a risk of cruel and unusual treatment or punishment or a danger of torture upon her return to Nigeria, under subsection 97(1) of the IRPA.
[28] It is important to note that during the hearing before the RPD, the Applicant expressed various difficulties in testifying. She expressed being extremely stressed and nervous from the beginning to the end, only had a little understanding of English (an interpreter was required), and four breaks were taken to give her the time she needed to collect herself.
[29] The RPD rejected the Applicant’s credibility because of inconsistencies between her testimony and her narrative. The RPD found that on a balance of probabilities, the Applicant’s confusion about the time she went to the hospital on February 22, 2016 and the discrepancy between the Applicant’s testimony regarding her son’s injury and the medical report undermined her credibility.
[30] The Applicant testified that she was admitted on February 22, 2016 at about midnight, while the medical report indicated that the time of admission was at about 7:15 PM. Moreover, the Applicant testified that her son was injured by a punch from her ex-partner, while the medical report indicated that the child fell from her back during the fight. The RPD found that the discrepancy undermined her credibility and was not a result of a memory issue.
[31] The RPD relied mainly on these two contradictions during testimony to dismiss the Applicant’s entire credibility and claim. The RPD then held that all other corroborating pieces of evidence carried no weight to rehabilitate the Applicant’s credibility.
IV. RAD Decision [32] After an independent review of the record, the RAD found that the RPD’s decision was correct in finding that the Applicant is neither a Convention refugee nor a person in need of protection. It concluded that on a balance of probabilities, the Applicant had failed to provide sufficient, credible or trustworthy evidence to establish her claim.
[33] The RAD found that the RPD did not err in its application of Guideline 8. It found that the RPD accommodated the Applicant with breaks to provide her with an opportunity to collect herself and to present her case upon resumption of the hearing. It specified that even though a medical doctor’s letter suggested that the Applicant was a vulnerable person, there was no indication that this suggestion was referencing to the Guideline 8 definition of “vulnerable” as this consideration can only be decided by the RPD, or upon request by counsel.
[34] The RAD further found that no application to have the Applicant designated as a vulnerable person had been made to the RPD as required by the RPD rules. It specified that regardless of the fact that Guideline 8 indicates that the RPD “may act on its own initiative” to designate a claimant as vulnerable, this decision is up to the RPD’s discretion. In the absence of an application or objection at the outset of the hearing to have the Applicant designated as vulnerable, the RAD concluded that the RPD did not err in exercising its discretion and by proceeding with the hearing without the Applicant being designated as such.
[35] The RAD also drew a negative credibility inference regarding the Applicant’s inconsistent and evolving testimony concerning her attendance at the hospital and the cause of her son’s death.
[36] The RAD considered the possibility that the Applicant’s contradictions during her testimony may be due to “trauma, depression or memory or concentration problems”. However, it found that there were too many inconsistencies in the Applicant’s testimony on a balance of probabilities.
[37] The RAD first held that it was not credible for the Applicant to fail to recall whether her son was punched or fell from her back during the domestic abuse, on February 15, 2017, until prompted by the RPD. The RAD upheld the RPD’s finding that the contradiction in the Applicant’s testimony concerning the events leading to her son’s death undermined her credibility as “her son’s death because her son being struck and the [Applicant] transferring him from her back does not present the same implication as her son being struck, falling and being picked up before being taken to hospital”. For that reason, the RAD gave no weight at all to the Applicant’s oral testimony concerning the incident alleged to have occurred on January 15, 2017. The RAD found that her difficulty in explaining the inconsistencies could not be explained by her past “trauma.”
[38] Second, the RAD rejected the Applicant’s credibility because her testimony presented inconsistencies in relation to the time when she was admitted to the hospital for a second alleged domestic abuse while she was pregnant. The Nigerian medical report indicates that she was admitted in the hospital at 7:15 PM when the Applicant was “semi-conscious.” There is no date on the report as to the admission, but the Applicant was released on February 22, 2016. The RAD found that the Applicant was direct in asserting on multiple occasions that the incident and her admission to the hospital was at about midnight, while the medical report indicated that she had arrived to the hospital at 7:15 PM.
[39] Again, the RAD found that the Applicant’s confusion was not a result of a memory issue or trauma. Her emphatic assertions that she proceeded to the hospital demonstrated, in the RAD’s view, that the Applicant was unable to recount with accuracy a central allegation of her claim.
[40] On the basis of these two contradictions, the RAD held that the Applicant was not credible.
[41] Furthermore, the RAD also found that the RPD erred in assessing the supporting letters.
[42] First, the RAD held that the RPD erred in assigning no weight to the letter from the Applicant’s pastor. However, it did not find this error fatal to the RPD’s decision, since this letter did not present information that resolved the credibility issues the RPD found in relation to the central allegations of the Applicant’s claim. In fact, the RAD assigned little weight to the letter because the pastor did not indicate that he had first-hand knowledge of the domestic abuse and his evidence could not overcome the inconsistencies in the Applicant’s testimony concerning the events of January 22, 2016, and February 15, 2017.
[43] Then, the RAD found that the RPD had erred in assigning no weight to the letters provided by the Applicant’s sister and former employer as they contained information that corroborated certain aspects of the Applicant’s claim. However, again, the RAD did not find this error fatal to the RPD’s decision since neither of the letters overcame the inconsistencies related to the two events of domestic abuse noted above, that were central to the Applicant’s claim.
[44] It is worth noting that in its decision, the RAD does not mention having considered Guideline 4 despite it being mentioned by the RPD.
[45] Before this Court, the Applicant submits that the RAD’s conclusions are unreasonable. The Applicant submits that the RAD erred in its application of Guideline 8. The Applicant further submits that the RAD erred by making adverse findings of credibility in a perverse and capricious manner, on irrelevant considerations, or without regard to the totality of the evidence before it.
V. Issues and Standard of Review [46] The overall question is whether the RAD’s findings were reasonable.
[47] The parties agree that the issues are reviewable on a reasonableness standard (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65) [Vavilov].
[48] In the case of Romhaine v Canada (Citizenship and Immigration), 2011 FC 534 at paragraph 22, where the application of Guideline 8 was also at stake, Justice Shore held that the standard of reasonableness applied.
[49] As held by the Supreme Court of Canada in Vavilov, reasonableness review requires a deferential approach to the decision maker and the reviewing court must read the reasons holistically and contextually (at para 97). The Court must consider the outcome of the decision and its rationale in order to ensure that the decision as a whole is transparent, intelligible and justified (Vavilov at paras 15, 95, 136). Judicial review is not a “line-by-line treasure hunt for error” (at para 102). The decision maker does not have to respond to each argument nor refer to all the evidence – indeed, the decision maker is presumed to have considered all of the evidence and the arguments on the record (at paras 127-128).
[50] However, when the decision maker is silent on a critical issue, or when evidence is found in the record that contradicts the decision maker’s findings of fact and that evidence is not considered nor assessed, it becomes impossible for the reviewing court to “connect the dots” and reveal a reasonable picture (at paras 97, 128).
[51] In those cases, the Court “may infer that a decision maker has made an erroneous finding of fact without regard to the evidence from a failure to mention in the reasons evidence that is relevant to the finding and which points to a different conclusion” (Gill c. Canada (Citoyenneté et Immigration), 2020 FC 934 at para 40; Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), 1998 CanLII 8667 (FC), [1998] FCJ No 1425 at para 15; Barril v Canada (Citizenship and Immigration), 2022 FC 400, at para 17). As stated at para 126 of Vavilov: “The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it.”
[52] Overturning a decision because the reasons did not discuss critical contradicting evidence is not “disguised correctness” - nor the application of a court established “yardstick” to measure the decision maker’s reasons (see Hiller v Canada (Attorney General), 2019 FCA 44 at para 14). Rather, it is a conclusion that the decision maker may not have meaningfully grappled with key issues and evidence and may not have been alert and sensitive to the matters before it (Vavilov at paras 83, 125-128). The decision consequently does not bear the hallmarks of reasonableness – justification, transparency and intelligibility – because it either does not justify in a transparent and intelligible manner why an important factor was not assessed, or it demonstrates that the decision maker failed to consider relevant evidence, argument or ground.
[53] When a decision maker has failed to explain how it considered an important factor, the Court should not supplement its own reasons to justify the “fundamental gap” or correct the “unreasonable chain of analysis,” because doing so would intrude on the decision maker’s powers (Vavilov at paras 87, 96). The Court should simply remit the decision back to the tribunal and not “disregard the flawed basis for a decision and substitute its own justification for the outcome” (Vavilov at para 96; Delta Air Lines Inc v Lukács, 2018 SCC 2 at paras 26–28), and make the conclusion that the Court would have preferred in the tribunal’s place.
[54] In this case, I conclude that the RAD failed to consider and properly assess relevant evidence. As explained below, the RAD failed to justify in a transparent and intelligible manner why important evidence was excluded or assigned no weight. I therefore remit the decision back to the RAD for further consideration.
VI. Analysis A. Did the RAD err in its application of the Chairperson Guideline 8: Procedures with Respect to Vulnerable Persons appearing before the RAD? [55] The Applicant argues that the RPD erred by not properly applying its own Guideline 8. Counsel submits that regardless of the fact that the Applicant’s initial counsel failed to make an application to designate the Applicant as a vulnerable person for the RPD hearing, the RPD had the authority to act on its own initiative, and should have done so.
[56] The Respondent submits that the RAD reasonably found that the RPD accommodated the Applicant with breaks to provide her with an opportunity to collect herself. He also argues that the RPD gave due consideration to the letter filed by the Canadian physician indicating that the Applicant was somewhat vulnerable. Notwithstanding the fact that the letter stated that the Applicant should be recognized as a “vulnerable person”, the RPD considered the Applicant as such and tried to put her at ease as much as possible and took into consideration the stresses inherent in testifying.
[57] The Respondent further submits that by providing breaks, the RPD therefore respected the Applicant’s right to be heard. He also argues that counsel for the Applicant could have asked for an adjournment of the hearing if it had been necessary. He also submits that there is no mention in the letter that the Applicant is unable to understand the proceedings.
[58] With respect to the conduct of the hearing, I find that the RPD reasonably followed the process set out in Guideline 8 for vulnerable people during the hearing. Pursuant to s.4.2 of Guideline 8, the IRB has a broad discretion to tailor procedures to meet the particular needs of a vulnerable person and, where appropriate and permitted by law, the IRB may accommodate a person’s vulnerability by various means, including:
allowing the vulnerable person to provide evidence by videoconference or other means;
allowing a support person to participate in a hearing;
creating a more informal setting for a hearing;
varying the order of questioning;
excluding non-parties from the hearing room;
providing a panel and interpreter of a particular gender;
explaining IRB processes to the vulnerable person; and
allowing any other procedural accommodations that may be reasonable in the circumstances.
[59] The Guideline 8 also provides a clear definition of who can qualify as a vulnerable person:
2. Definition of Vulnerable Persons
2.1 For the purposes of this Guideline, vulnerable persons are individuals whose ability to present their cases before the IRB is severely impaired. Such persons may include, but would not be limited to, the mentally ill, minors, the elderly, victims of torture, survivors of genocide and crimes against humanity, and women who have suffered gender-related persecution.
. . .
2.3 Persons who appear before the IRB frequently find the process difficult for various reasons, including language and cultural barriers and because they may have suffered traumatic experiences which resulted in some degree of vulnerability. IRB proceedings have been designed to recognize the very nature of the IRB's mandate, which inherently involves persons who may have some vulnerabilities. In all cases, the IRB takes steps to ensure the fairness of the proceedings. This Guideline addresses difficulties which go beyond those that are common to most persons appearing before the IRB. It is intended to apply to individuals who face particular difficulty and who require special consideration in the procedural handling of their cases. It applies to the more severe cases of vulnerability.
[Emphasis added.]
[60] The Applicant sought refugee status in Canada because she suffered from domestic abuse and lost her child because of it. Her ability to present her case before the RPD may therefore have been impaired by the events she had lived in Nigeria and she could likely have qualified under the definition of a vulnerable person.
[61] Although these guidelines are not binding, the RAD had the obligation to consider them in this case as there were various indications that their application was necessary (Sebok v Canada (Minister of Citizenship and Immigration), 2012 FC 1107, at para 14) [Sebok]. As stated in Hilary v M.C.I., 2011 FCA 51 [Hilary], at para 43, although counsel is “best placed to bring to the Board’s attention the special vulnerability of a person who may require some kind of procedural accommodation […] the Board may also act on its own initiative (section 7.4).”
[62] However, as held at para 42 of Hilary, “the IAD does not bear primary responsibility for identifying appellants who are especially vulnerable” as provided under subsection 19(1) of the Immigration Appeal Division Rules, SOR/2002-230 [Rules]. The duty therefore relies on counsel for the applicant, and the Minister also has a duty to advise the IAD “if they believe that a designated representative should be appointed because of the appellant’s inability to appreciate the nature of the proceedings.”
[63] During the hearing before this Court, counsel for the Applicant gave clear examples of further accommodations that should have been granted to the Applicant before the RPD. For example, she argued that more information could have been provided to the Board member or that a rearrangement of the order of questioning should have been made.
[64] Nevertheless, in my view, because the Applicant’s first counsel did not require any specific accommodation before the RDP hearing, and because the RDP did recognize the situation by granting four (4) breaks to the Applicant during the hearing, the RPD reasonably complied with its obligations under Guideline 8.
[65] It is also important to note that the Guidelines are meant to ensure a certain level of sensitivity, empathy and respect to the claimant’s reality, but not a perfect hearing. As held by Justice Mosley in Konecoglu v Canada (Citizenship and Immigration), 2021 FC 1370 at para 26, in reference to Guideline 8:
[26] The purpose of the Guideline is to ensure sensitivity to an applicant’s difficulty in testifying in the context of a gender-based claim: Manege v Canada (Citizenship and Immigration), 2014 FC 374 at para 30; citing Juarez v Canada (Minister of Citizenship and Immigration), 2010 FC 890 at paras 17-20. But they do not serve to cure all deficiencies in the applicant’s evidence: Yu v Canada (Citizenship and Immigration), 2021 FC 625 at para 22.
[…]
[29] The RPD panel member described the applicant at one point during the hearing as a vulnerable person. However, no application was made in writing in accordance with Rule 50 of the Refugee Protection Division Rules (SOR/2012-256) for the applicant to be provided with any of the available accommodations for vulnerable persons, as the RAD noted. Without taking that step in compliance with the Rule, the applicant cannot now argue that the Board did not apply this guideline.
[30] This may seem to be rigid adherence to a technicality. However, the applicant has not pointed to any specific accommodation that she requested at the hearing and was refused. Moreover, the real issue was whether the RPD’s questioning was “condescending, demeaning and dismissive of the trauma and domestic violence and sexual violence claims” as the applicant argues. The RAD had the benefit of a complete review of the RPD record and the excerpts of the hearing submitted by the applicant. Based on that, the RAD concluded that the applicant was in fact questioned with sensitivity and respect. I see no basis in the record to interfere with that finding on the reasonableness standard.
[Emphasis added.]
[66] In this case, as explained above, no specific accommodation was required by counsel at the time of the hearing before the RPD and the Applicant was treated with sensitivity and respect by the RPD.
B. Did the RAD make an unreasonable decision by making adverse findings of credibility in a perverse and capricious manner, on irrelevant considerations, or without regard to the totality of the evidence before it? [67] The Applicant argues that the RAD unreasonably ignored the evidence. For instance, the Applicant argues that the RAD failed to consider the medical report written by a Canadian physician explaining that she suffered from major depression, was currently under medication, “may have trouble relaying the details of her traumatic past as she complains of distractibility and poor concentration [and that] [d]ifficulties in memory and concentration are common symptoms in persons suffering from depression”, and that her condition could explain her contradictions.
[68] Moreover, the Applicant argues that the RAD’s analysis was simply overzealous in trying to find contradictions. Her testimony that her infant son was struck by her ex-partner instead of having fallen from her back, and that she was admitted to the hospital at 7:15 PM (while semi-conscious) and not at about midnight, are not major contradictions that should detract from her consistent narrative that she was a victim of domestic abuse. For the Applicant, the fact remains that several medical reports prove that she and her son had been injured as a result of domestic abuse and the simple errors noted by the RPD should not have undermined her entire testimony and claim.
[69] The Applicant further submits that the RAD should have considered and given probative value to the letter provided by her sister as it corroborated the Applicant’s domestic abuse and that her ex-partner intimidated and threatened the entire family. The Applicant submits that the Court has held several times that evidence from family members cannot be rejected simply because of hearsay, since these family members are often in the best position to confirm what occurred to the claimants.
[70] The Respondent submits that the RAD’s decision is reasonable. The RAD’s reasons explain that the Applicant’s credibility was undermined because of several inconsistencies and contradictions in her testimony on issues that were central to her claim. For example, she disputed the time of her admission to the hospital, as indicated in a medical report, during an alleged incident of domestic abuse. Another time, she testified that her son was punched by her partner, while the medical report stated that the Applicant’s son fell from her back. The RAD reasonably held that it was not credible for the Applicant not to recall specifically what occurred during such a tragic event leading to the death of her son. Therefore, “trauma” could not explain her memory loss.
[71] In my view, after consideration of the applicable law and the evidence before the RAD, I am not satisfied that the Decision meets the standard of reasonableness. Given the important interest at stake for the Applicant, the Decision does not explain why significant evidence weighing in favour of the Applicant was rejected or assigned only minimal weight : “[w]here the impact of a decision on an individual’s rights and interests is severe, the reasons provided to that individual must reflect the stakes” (Vavilov at para 133).
[72] In this particular case, I am not persuaded that the RAD considered all the evidence before it. As held in Vavilov at para 126: “[t]he reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it.”
[73] As explained by Justice Aylen in Barril v Canada (Citizenship and Immigration), 2022 FC 400 at para 17:
[17] A decision-maker is required to address relevant evidence if such evidence goes directly to contradict their findings. The Court may infer that a decision-maker has made an erroneous finding of fact without regard to the evidence from a failure to mention in the reasons evidence that is relevant to the finding and which points to a different conclusion [see Kaur v Canada (Citizenship and Immigration), 2020 FC 934 at para 40; Cepeda-Gutierrez v Canada (Minister of Citizenship and Immigration), 1998 CanLII 8667 (FC), [1998] FCJ No 1425 at para 15]. […]
[74] That is what happened in this case. While I agree that the RAD is presumed to have weighed all of the evidence and has no obligation to refer to every document, the RAD cannot remain silent or ignore relevant evidence contradicting the decision maker’s finding of fact (see Rajput v Canada (Citizenship and Immigration), 2022 FC 65 at para 25) [Rajput]. Instead, the RAD had the burden to explain why no or little weight had to be assigned to the contradicting evidence and why it preferred, in light of the contradicting evidence, to dismiss the Applicant’s credibility. The Decision therefore lacks justification, transparency and intelligibility, and must be sent back for redetermination.
[75] Specifically, the RAD conducted a selective analysis and ignored relevant contradictory evidence. As stated by Justice Brown in Aslan v Canada (Citizenship and Immigration), 2021 FC 1165 at para 32, a decision maker cannot focus on “one aspect” of a particular piece of evidence “but wholly ignore […] the unchallenged fact”. In this case, that “unchallenged fact” is that the Applicant has suffered from domestic abuse, since there is additional objective evidence supporting that conclusion, but that the RAD failed to assess.
[76] First, the RAD relied on two medical reports from Nigeria to ground its conclusion that the Applicant was not credible. It failed, however, to consider those Nigerian medical reports holistically and contextually and put any weight to the remaining parts of the same documents, indicating that the reasons for both visits was as a result of domestic abuse.
[77] Second, the RAD dismissed or assigned little weight to the objective evidence of the Applicant’s sister and pastor, both because they were not “first-hand” witnesses to the domestic abuse and because neither could rehabilitate the Applicant on the two credibility issues raised during her testimony (the two contradictions with the Nigerian medical reports on the time of admission and the circumstances leading to the death of her son).
[78] Third, the RAD failed to consider the entirety of the evidence from the sister and pastor, who both presented “first-hand” evidence of the continuing threat as well as the actions taken by the Applicant to protect herself from domestic abuse.
[79] Finally, the RAD failed to explain why a recent letter from a Canadian physician, diagnosing the Applicant with major depression requiring current medication, and indicating that the Applicant “may have trouble relaying the details of her traumatic past as she complains of distractibility and poor concentration [and that] [d]ifficulties in memory and concentration are common symptoms in persons suffering from depression”, could not explain her memory lapse. Let me explain.
(1) Nigeria Medical Reports
[80] The first medical report states the following:
Patient, age 35 years was rushed into the hospital at about 7:15pm with history of bleeding per vagina secondary to assault. On admission, she was semi-conscious.
Vital signs were T.37 C P 80 r 20b/p/n B/P 100/ 60mm Hg. FHR-132, FH-38 weeks palpable, said was beaten by her husband. A diagnosis threatened abortion was made. Patient was managed conservatively with i.v, antibiotics, analgesics and hematinic with strict bed rest. Patient stopped bleeding with stable vital signs.
A viable fetus was revealed in abdominal ultra sound scan. Patient was discharged home in satisfactory condition on the 22nd Feb. 2016.
[Emphasis added.]
[81] There is no date on the medical report, only a date for the release, on February 22, 2016.
[82] The second medical report from Nigeria is dated January 15, 2017. The report states the following:
Baby Jeffrey, Male 9 months old rushed into our facility on the 15/1/2017 with history of multiple injury due to fall from the mother back during a fight between both parents.
On admission, baby had difficulty in breathing, afebrile to touch, not pale but cry on chest exertion, vital signs were T.36.8 C pulse 108 R.38 managed conservatively while chest x-ray revealed a fractured rib.
Intravenous anti-biotics and analgesic were given. On the 17/1/2017 baby was discharged and referred to our medical centre for further evaluation and management.
[Emphasis added.]
[83] The RAD puts weight on one part of the Nigerian medical reports, but ignores the others.
[84] First, the RAD puts great weight on the Applicant’s contradiction on the time she went to the hospital on February 22, 2016. The RAD mentions that the Applicant was adamant during her testimony that she was admitted at about midnight and not at 7:15 PM as stated in the medical report. The RAD concludes that because of her clear testimony on that point, the Applicant’s memory did not fail her. However, because of the contradiction, she is not credible.
[85] However, the RAD fails to put any weight on the other statements made in the medical report that mentions the reason f