Fedee v. Canada (Citizenship and Immigration)

Fedee v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2019-01-22
Neutral citation
2019 FC 88
File numbers
IMM-2217-18
Decision Content
Date: 20190122
Docket: IMM-2217-18
Citation: 2019 FC 88
Ottawa, Ontario, January 22, 2019
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
ALVINA ANDRINA FEDEE
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
JUDGMENT AND REASONS
I. INTRODUCTION
[1] This is an application under s 72(1) of the Immigration and Refugee Protection Act, SC 2001, c 27 [Act], for judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board of Canada [RPD or the Board], dated March 1, 2018 [Decision], which refused the Applicant’s application to be deemed a Convention refugee or a person in need of protection under ss 96 and 97 of the Act.
II. BACKGROUND
[2] The Applicant, Alvina Andrina Fedee, is a citizen of Saint Lucia.
[3] The Applicant’s family moved into her aunt and uncle’s house when she was a child. The Applicant claims that her uncle was physically abusive towards her. She says she went to the hospital and to the police after her uncle broke a bottle over her head. The police took the complaint, but did not come to the house or arrest her uncle. Subsequent acts of violence against the Applicant were met with similar police inaction.
[4] The Applicant alleges that her uncle has engaged in repeated harassment of her mother and sister in order to find out her whereabouts.
[5] The Applicant fled to Canada in 2003, but did not make a refugee claim until 2012. The Applicant asserts that the officers at the Kipling immigration office would not provide her with the forms to submit her application. Instead, they asked her to fill the forms out in the office. She did not do so because she had been told by an immigration consultant to avoid speaking with immigration officers. The Applicant says she avoided submitting a claim for refugee protection until 2012 due to her fear of being deported.
[6] The Applicant has a number of medical conditions which include iron deficiency and swollen kidneys. The Applicant has also been diagnosed with psychological issues, including severe post-traumatic stress disorder and major depressive disorder.
III. DECISION UNDER REVIEW
[7] The RPD hearing took place over three sittings. The Applicant fell ill during the first sitting and the hearing was adjourned. At the second sitting, the RPD denied the Applicant’s request to be deemed a vulnerable person due to health problems. The RPD provided reasons orally for this rejection. Following the rejection, the Applicant requested that the RPD member recuse himself on the basis of reasonable apprehension of bias. This request was refused and reasons were provided orally. Despite its rejection of the vulnerable person designation, the RPD made a number of accommodations during the second sitting.
[8] The RPD reversed its decision on the requested vulnerable person designation before the third hearing. The RPD considered the Applicant’s health difficulties which she experienced during the proceedings as well as the medical documentation submitted. Based on this information, the RPD designated the Applicant as a vulnerable person. The RPD accepted the requested accommodations except the request for an in-person hearing. The RPD held that the Applicant had failed to demonstrate that a videoconference would cause unfair prejudice.
[9] The RPD determined that the Applicant is neither a Convention refugee nor a person in need of protection. The RPD identified three determinative issues. Firstly, parts of the Applicant’s testimony were found not to be credible. Secondly, the RPD found that the Applicant does not face a forward-looking fear of persecution. Finally, the RPD determined that there are not sufficient compelling reasons arising out of past persecution.
[10] The RPD found the Applicant’s testimony about the abuse at the hands of her uncle to be credible. Additionally, this testimony was found to be supported by the objective evidence about domestic abuse in Saint Lucia. As a result, the RPD determined, on a balance of probabilities, that the Applicant had been physically abused by her uncle in the past. The RPD held that this mistreatment constitutes persecution by reason of the Applicant’s membership in a particular gender-based social group.
[11] The RPD noted that past persecution is relevant, but emphasized that the assessment of a Convention refugee claim is forward-looking. The RPD went on to conclude that the Applicant’s testimony that she would face a serious possibility of persecution or risk of harm in the future was not credible.
[12] The RPD considered the Applicant’s claim that her uncle continues to ask her mother and sister about when she will return to Saint Lucia. Additionally, the RPD considered the Applicant’s testimony that her uncle visited her mother’s house to ask about her whereabouts, at which point her mother called the police. The RPD found that this testimony lacked sufficient detail to be convincing. Specifically, the RPD found that the Applicant could not explain whether her uncle had harassed her family members from 2003 until 2017. The Applicant also could not explain in detail the harassment which is said to have taken place in 2017.
[13] The RPD noted the contradiction between the Applicant’s testimony that the police did not come when called in relation to the uncle’s harassment of the mother and sister, and the mother’s letter which states that the police were called several times and arrived on two occasions. The RPD also noted that no explanation was provided for this discrepancy.
[14] The RPD questioned the Applicant in order to ascertain further details about the uncle’s harassment of her mother and sister. The Applicant stated that her mother did not give her all the information in order to protect her. The RPD did not accept this explanation. Firstly, the RPD noted that the Applicant is close with her mother and sister and remains in contact with them. Moreover, the RPD found it reasonable to expect that the Applicant would want to know the details about the threats facing her in Saint Lucia. The RPD found that the Applicant had not provided an adequate explanation for why her mother refrained from telling her about the harassment from the uncle until May 2017. The RPD concluded that the Applicant had not substantiated her claim that her uncle has engaged in ongoing threats. As a result, the RPD held that it did not believe the allegation that the uncle is continuing to engage in ongoing threatening behaviour.
[15] The RPD considered the affidavits submitted by the Applicant’s mother, sister, and aunt. The RPD found that these affidavits lacked relevant details and dates. The RPD reasoned that the Applicant’s family members would have been interested in providing as much detail as possible in their affidavits.
[16] The RPD considered the Applicant’s testimony that she has two living paternal aunts in Saint Lucia named Pamela and Mary. The RPD held that the Applicant had failed to explain why she refers to her aunt Pamela by the name “Mary.” Additionally, the RPD noted that the Applicant claims to have lived with her aunt Mary, but provided an affidavit from an individual named Pamela Seraphin. The RPD stated that this was not implausible but went on to note that the Applicant had undermined her credibility by providing inconsistent details about her aunt’s family and the time that she lived with them. Particularly, the Applicant provided inconsistent testimony about the number of children in her aunt’s family, the date that she moved into her aunt’s house, and the duration of her residence with her aunt’s family.
[17] The RPD considered the Applicant’s explanation for her inconsistent testimony that, at the hearing, she felt ill and could not concentrate, that the video feed was poor, and that the panel member spoke too fast and had a strong accent. The RPD accepted the explanation that the Applicant had difficulty concentrating due to her mental health. Additionally, the RPD recognized that the Applicant had become ill during the hearing. Finally, the RPD accepted that the quality of the video feed was deficient. The RPD noted, however, that it had adjusted the speed of the video feed and given clarifications when asked. Further, the RPD noted that steps were taken to improve the video feed.
[18] After considering the explanations, the RPD held that the discrepancies were not adequately explained by the Applicant. As a result, the RPD made a negative credibility inference in relation to the later allegations of abuse. The RPD accepted that the Applicant had been abused in the past, but held that its negative credibility finding is relevant to the assessment of forward-looking risk. Accordingly, the RPD drew a negative credibility inference in relation to the Applicant’s testimony that her uncle poses an ongoing threat.
[19] The RPD determined that, on a balance of probabilities, the Applicant’s uncle is not searching for her. Additionally, the RPD determined that there is no more than a remote possibility that the uncle would persecute her in the future. The RPD found the Applicant’s medical conditions and physical ability to flee irrelevant to the analysis because she had not demonstrated that her uncle is searching for her with the intention of causing her harm.
[20] The RPD noted the Applicant’s mental health issues as well as her unresolved problems with her kidneys and held that the Applicant had not demonstrated that she would be arbitrarily denied medical care in Saint Lucia. As a result, the RPD found that the Applicant did not face a well-founded fear of persecution or a risk of cruel and unusual treatment or punishment based on medical conditions.
[21] The RPD determined that the letter from the Applicant’s psychiatrist had probative value with respect to the Applicant’s medical conditions and mental health. The psychiatrist’s findings of fact about the Applicant’s claim as well as the impact of the video feed, however, were found to be matters within the RPD’s jurisdiction.
[22] The RPD went on to consider whether there are any “compelling reasons” to accept the Applicant’s claim based on her previous persecution. The RPD determined that the Applicant did not meet the high threshold required to establish compelling reasons. The RPD recognized that the Applicant had suffered repeated, gender-based violence at the hands of her uncle in the past. The RPD found, however, that these acts did not rise to the level of “atrocious” or “appalling” conduct but did not, in any event, hold her to this standard and went on to consider the full context. In this regard, the RPD noted the Applicant’s age, resourcefulness, and level of independence. Despite her mental and physical conditions, the Applicant has been able to support herself independently. The RPD noted that the Applicant’s circumstances had changed significantly since she was young and dependent on her aunt and uncle.
[23] The RPD determined that the Applicant is neither a Convention refugee nor a person in need of protection. Additionally, the RPD held that there are not “compelling reasons” to allow the refugee claim.
IV. ISSUES
[24] The issues to be determined in the present matter are the following:
What is the standard of review?
Did the RPD breach the duty of procedural fairness?
Did the RPD show a reasonable apprehension of bias?
Was the RPD’s Decision reasonable?
V. STANDARD OF REVIEW
[25] The Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir], held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a particular question before the court is settled in a satisfactory manner by past jurisprudence, the reviewing court may adopt that standard of review. Only where this search proves fruitless, or where the relevant precedents appear to be inconsistent with new developments in the common law principles of judicial review, must the reviewing court undertake a consideration of the four factors comprising the standard of review analysis: Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 48.
[26] A standard of reasonableness applies to the RPD’s credibility findings as well as other determinations based on mixed fact and law (Koffi v Canada (Citizenship and Immigration), 2016 FC 4 at para 27).
[27] When reviewing a decision on the standard of reasonableness, the analysis will be concerned with “the existence of justification, transparency and intelligibility within the decision-making process [and also with] whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.” See Dunsmuir, above, at para 47, and Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 59 [Khosa]. Put another way, the Court should intervene only if the Decision was unreasonable in the sense that it falls outside the “range of possible, acceptable outcomes which are defensible in respect of the facts and law.”
[28] Courts have recently held that the standard of review for an allegation of procedural unfairness is “correctness” (Mission Institution v Khela, 2014 SCC 24 at para 79; Khosa, above, at paras 59 and 61).
[29] While an assessment of procedural fairness accords with recent jurisprudence, it is not a doctrinally sound approach. A better conclusion is that no standard of review at all is applicable to the question of procedural fairness. The Supreme Court of Canada in Moreau-Bérubé v New Brunswick (Judicial Council), 2002 SCC 11 stated (at para 74) that the issue of procedural fairness,
requires no assessment of the appropriate standard of judicial review. Evaluating whether procedural fairness, or the duty of fairness, has been adhered to by a tribunal requires an assessment of the procedures and safeguards required in a particular situation.
[30] Whether a hearing was tainted by a reasonable apprehension of bias is a matter of procedural fairness. It is possible, therefore, to rely on recent jurisprudence from the Federal Court which posits that a standard of correctness applied to the question of reasonable apprehension of bias (Zhu v Canada (Citizenship and Immigration), 2013 FC 1139 at para 38). As described above, this is not doctrinally sound. As stated by Justice Teitelbaum, “Procedural fairness requires that decisions be made free from a reasonable apprehension of bias by an impartial decision-maker” (Gagliano v Canada (Commission of Inquiry into the Sponsorship Program and Advertising Activities), 2008 FC 981 at para 59). If a decision is found to have been affected by a reasonable apprehension of bias, the parties affected will have been denied procedural fairness. This will result in the decision being overturned.
VI. STATUTORY PROVISIONS
[31] The following statutory provisions of the Act are relevant to this application for judicial review:
Convention refugee
Définition de réfugié
96 A Convention refugee is a person who, by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,
96 A qualité de réfugié au sens de la Convention — le réfugié — la personne qui, craignant avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance à un groupe social ou de ses opinions politiques :
(a) is outside each of their countries of nationality and is unable or, by reason of that fear, unwilling to avail themself of the protection of each of those countries; or
a) soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de chacun de ces pays;
(b) not having a country of nationality, is outside the country of their former habitual residence and is unable or, by reason of that fear, unwilling to return to that country.
b) soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
Person in need of protection
Personne à protéger
97 (1) A person in need of protection is a person in Canada whose removal to their country or countries of nationality or, if they do not have a country of nationality, their country of former habitual residence, would subject them personally
97 (1) A qualité de personne à protéger la personne qui se trouve au Canada et serait personnellement, par son renvoi vers tout pays dont elle a la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa résidence habituelle, exposée :
(a) to a danger, believed on substantial grounds to exist, of torture within the meaning of Article 1 of the Convention Against Torture; or
a) soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la torture au sens de l’article premier de la Convention contre la torture;
(b) to a risk to their life or to a risk of cruel and unusual treatment or punishment if
b) soit à une menace à sa vie ou au risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) the person is unable or, because of that risk, unwilling to avail themself of the protection of that country,
(i) elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) the risk would be faced by the person in every part of that country and is not faced generally by other individuals in or from that country,
(ii) elle y est exposée en tout lieu de ce pays alors que d’autres personnes originaires de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) the risk is not inherent or incidental to lawful sanctions, unless imposed in disregard of accepted international standards, and
(iii) la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles infligées au mépris des normes internationales — et inhérents à celles-ci ou occasionnés par elles,
(iv) the risk is not caused by the inability of that country to provide adequate health or medical care.
(iv) la menace ou le risque ne résulte pas de l’incapacité du pays de fournir des soins médicaux ou de santé adéquats.
(2) A person in Canada who is a member of a class of persons prescribed by the regulations as being in need of protection is also a person in need of protection.
(2) A également qualité de personne à protéger la personne qui se trouve au Canada et fait partie d’une catégorie de personnes auxquelles est reconnu par règlement le besoin de protection.
Rejection
Rejet
108 (1) A claim for refugee protection shall be rejected, and a person is not a Convention refugee or a person in need of protection, in any of the following circumstances:
108 (1) Est rejetée la demande d’asile et le demandeur n’a pas qualité de réfugié ou de personne à protéger dans tel des cas suivants :
(a) the person has voluntarily reavailed themself of the protection of their country of nationality;
a) il se réclame de nouveau et volontairement de la protection du pays dont il a la nationalité;
(b) the person has voluntarily reacquired their nationality;
b) il recouvre volontairement sa nationalité;
(c) the person has acquired a new nationality and enjoys the protection of the country of that new nationality;
c) il acquiert une nouvelle nationalité et jouit de la protection du pays de sa nouvelle nationalité;
(d) the person has voluntarily become re-established in the country that the person left or remained outside
d) il retourne volontairement s’établir dans le pays qu’il a quitté ou hors duquel il est demeuré et en raison duquel il a demandé l’asile au Canada;
(e) the reasons for which the person sought refugee protection have ceased to exist.
e) les raisons qui lui ont fait demander l’asile n’existent plus.
Exception
Exception
(4) Paragraph (1)(e) does not apply to a person who establishes that there are compelling reasons arising out of previous persecution, torture, treatment or punishment for refusing to avail themselves of the protection of the country which they left, or outside of which they remained, due to such previous persecution, torture, treatment or punishment.
(4) L’alinéa (1)e) ne s’applique pas si le demandeur prouve qu’il y a des raisons impérieuses, tenant à des persécutions, à la torture ou à des traitements ou peines antérieurs, de refuser de se réclamer de la protection du pays qu’il a quitté ou hors duquel il est demeuré.
VII. ARGUMENT
A. Applicant
[32] The Applicant says that the RPD erred by failing to accommodate her as a vulnerable person. The Applicant suffers from medical issues which include swollen kidneys which results in swollen feet as well as back and abdomen pain. Additionally, the Applicant experiences migraines. She also has psychological issues including severe post-traumatic stress disorder and major depressive disorder.
[33] The video screen used during the first sitting was affected by technical difficulties. According to the Applicant, “the view was of the entire room in Vancouver rather than a closer shot of the panel. In addition, the screen was dim and whenever the Member would move, his image would transform into pixels of black and grey so that it looked like there was a dark blob at the end of the room. Overall the technical difficulties resulted in a sinister appearance” (Applicant’s Record at 62). The Applicant says these issues made her nervous and uncomfortable.
[34] The Applicant’s psychiatrist recommended that the hearings take place in person due to the Applicant’s psychological issues. The RPD, however, assigned little weight to the psychiatrist’s recommendation and denied the Applicant’s request for accommodation. The technical issues persisted throughout the remainder of the hearings. The Applicant says that the RPD erred by giving little weight to the psychiatrist’s letter. Moreover, the RPD erred by failing to accommodate the Applicant.
[35] The Applicant says that the RPD also failed to apply the Gender Guidelines. The RPD should have considered the repetitive nature of domestic abuse. Further, the RPD should have considered the Applicant’s testimony within the context of her medical and psychological issues. Instead, the RPD expected her to recite specifics incidents of abuse. The RPD displayed a lack of sensitivity when assessing the Applicant’s testimony. This led the RPD to make erroneous negative credibility findings in relation to minor inconsistencies.
[36] The Applicant says that the RPD erred in its credibility assessment. It was an unreasonable and contradictory finding for the RPD to believe that the Applicant suffered abuse in the past, but that she did not face a risk in the future. Minor inconsistencies led the RPD to make a negative credibility inference. Furthermore, the RPD made these inferences based on the hearing in which the video quality was poor and the Applicant was sick.
[37] The Applicant also says that it was unreasonable for the RPD to assign little probative value to the affidavits written by her mother and sister because they did not include enough detail about the uncle’s inquiries about her whereabouts.
[38] The Applicant says that the RPD erred further in its “compelling reasons” analysis. This analysis is contextual and does not require that the acts be “atrocious” or “appalling.” The psychological effects of past abuse are relevant. The RPD erred by failing to consider the physical and psychological conditions of the Applicant. Further, the RPD should have considered the Applicant’s age and cultural background.
[39] The Applicant says that the RPD showed a reasonable apprehension of bias. Firstly, the RPD disbelieved her contention that the quality of the video feed was poor until the IT staff confirmed the quality. The RPD then requested a different room. The RPD disbelieved herthat the video quality was poor in the second room as well until the IT staff gave their confirmation. Similarly, the RPD requested a medical note after she became ill during the hearing. This demonstrates that the RPD did not believe that the Applicant was sick.
[40] Finally, the Applicant says that the RPD was not competent. The failure to understand the cycle of abusive violence or the psychological impact of abuse demonstrates a lack of competence. There was a denial of procedural fairness because of this lack of competence.
B. Respondent
[41] The Respondent says that the RPD did not err by requiring the Applicant to be overly precise about the abuse that she suffered. Instead, the RPD noted inconsistencies about basic aspects of the refugee claim.
[42] The Respondent also says that the RPD did not violate the Gender Guidelines. The Applicant contends that the RPD ignored the cycle of violence she experienced, but she has not demonstrated how this allegation is relevant to this case. The RPD made numerous findings which are consistent with the Gender Guidelines. For example, the RPD readily accepted: the claim that domestic abuse had occurred; the Applicant’s desire to remain unaware of her uncle’s recent activities; and the Applicant’s nine-year delay in claiming refugee protection. The Applicant has not succeeded in demonstrating that any aspect of the Decision violates the Gender Guidelines.
[43] The Respondent also points out that the RPD acknowledged and took into account the Applicant’s physical and psychological conditions. Accordingly, there is no weight to the argument that the RPD ignored medical and psychological evidence.
[44] The Respondent says that the RPD reasonably arrived at its negative inferences of credibility. The Applicant’s contention that the RPD focused on minor inconsistencies is not accurate. Instead, the RPD identified an absence of basic information and discrepancies concerning central aspects of the claim.
[45] The Respondent also says that the Applicant has misconstrued the RPD’s statement that the abuse never happened outside the aunt and uncle’s home. The RPD mentioned this in order to address the Applicant’s argument that she will be unable to flee from her uncle. There would be no need to flee if she lived apart from her uncle. Additionally, the Applicant misconstrues the RPD’s remark that the abuse took place a long time ago. This was mentioned in order to demonstrate the lack of sufficient evidence that her uncle was still searching for her.
[46] It was not unintelligible or unreasonable for the RPD to find an absence of a forward-looking risk of persecution despite its finding that the Applicant had been abused in the past. Past mistreatment does not constitute future risk.
[47] Nor did the RPD rely upon minor inconsistencies. Instead, the RPD noted inconsistencies in relation to numerous details of the Applicant’s testimony and considered the explanations offered for these inconsistencies. It was reasonable for the RPD to draw negative credibility inferences based on the inconsistencies. These inconsistencies were assessed sensitively in light of the acknowledged abuse suffered by the Applicant.
[48] The Respondent says that it was reasonable for the RPD to assign little probative value to the letters written by the Applicant’s mother and sister. The letters were dismissed due to their vagueness rather than their failure to include very specific details.
[49] The Respondent says that the RPD also properly considered the Applicant’s mental health conditions as part of the “compelling reasons” analysis. The RPD was not required to consider the Applicant’s ability to flee her uncle, because she would no longer be required to live in his house. The RPD did not simply require the Applicant to show that the past persecution was “atrocious” or “appalling.” Instead, the RPD considered the Applicant’s personal characteristics and background.
[50] The Respondent emphasizes that the threshold for establishing a reasonable apprehension of bias is high. The Applicant has failed to establish any such bias. The RPD assisted the Applicant to overcome several issues that arose during the hearings. The requirement that the Applicant obtain a medical note does not demonstrate bias.
[51] The Respondent says that the RPD granted sufficient accommodations to the Applicant and that it was not unfair to hold the hearings through videoconference. The RPD has broad discretion over the procedures chosen for hearings. Additionally, the RPD used the criteria for vulnerable people in order to accommodate the Applicant. A number of accommodations were made which included the termination of a hearing, adjustment of the video quality, slowing down speech, offering breaks, and encouraging the Applicant to seek clarifications.
VIII. ANALYSIS
[52] The Applicant alleges a broad range of misconduct and error on the part of the RPD. I have carefully reviewed each of her assertions against the Decision and the record and my conclusions are as follows.
A. Failure to Apply the Gender Guidelines
[53] The Applicant alleges that the RPD failed to apply the Gender Guidelines. First of all, she says that the RPD denied her request for accommodation despite the continued poor quality of the video feed and gave little weight to Dr. Kitamura’s advice and request for an in-person hearing in his Psychological Follow-up:
10. In the previously disclosed psychiatric assessment, Dr. Kitamura diagnosed the Applicant with chronic post-traumatic stress disorder (PTSD), severe. He also diagnosed her with chronic major depressive disorder, severe. It is important to take into consideration that the Applicant was already suffering from the affects [sic] of severe chronic PTSD and severe depression. Given her psychological state and her experience with the videoconference, Dr. Kitamura has recommended that the presiding member be in person. He stated:
Reviewing her reported experience at this hearing, and your observations, it is quite apparent that Ms. Fedee struggled to relate to the use of videoconference technology. The result was increased distress and likely greater mistrust during a hearing that is already highly emotionally laden. This caused further distress and impaired her performance. I would ask that when re-scheduled, she please be granted a hearing that is in person with the presiding member, in order to reduce undue hardships on Ms. Fedee and support her providing her evidence most effectively. As per my previous note, in future hearing, permitting her the breaks she feels necessary to compose herself in times of acute stress, and the option of having a support person present with her, would be most helpful.
[Emphasis in original.]
[54] In written submissions, the Applicant summarizes her complaint as follows:
12. In reaching its conclusion, the panel states that it gave little weight to the psychiatrist’s follow-up letter regarding the impact on the Applicant of testifying by video. The panel stated that those matters are within the purview of the Board. It is submitted that the panel erred by doing so. The psychiatrist is a skilled and experienced professional and is an expert on assessing psychological impacts on his patients. He reported on the severe distress of the Applicant with the video equipment and recommended that she have an in-person member. This is certainly within his expertise and purview.
[55] The Decision itself reveals that the RPD was fully alive to the Applicant’s medical and psychological problems and her concerns about the video feed:
[43] The claimant’s explanation for these inconsistencies was that she was not feeling well and could not concentrate. In her submissions, Counsel also notes various issues during the first sitting of the hearing including the appearance of the video feed from Vancouver, the effects of the claimant’s severe PTSD and depression and other health issues, as well as the panel’s “accent issues and speaking too fast” and states that the panel should not draw any negative inferences from discrepancies in the claimant’s answers on that date.
[44] The panel accepts the claimant’s medical diagnoses, including that persons suffering from these psychological illnesses or conditions “often have difficulties with concentration and memory, especially under times of stress”. It also notes that the hearing was stopped because the claimant became ill, and was unable to continue with the proceeding.
[45] With respect to the other issues, the panel accepts that the video feed was imperfect, and that on occasion the claimant asked the panel to slow down or to repeat or clarify a question. However, overall, the flow of questions and answers during the hearing was continuous, with no significant interruption or delay. The issues identified by Counsel were not raised until well into the first sitting, and when the claimant asked the panel to adjust its speed or clarify something, it responded without delay. As already indicated, the panel took other steps to improve the video feed during the proceedings. Counsel did not explain how the quality of the video feed at any point during the hearing is to blame for any of the material discrepancies noted here.
[46] Counsel gives the example in her submissions of how there was some confusion between the words “Mary” and “married”. Specifically, the panel had asked if both of the claimant’s paternal aunts were married, which the claimant understood to mean whether both aunts are named Mary. When asked further about this, the claimant explained that she had misunderstood the panel’s question, an explanation that the panel accepted on the record. The panel considers this to be illustrative of how some of the issues raised by Counsel were in fact satisfactorily resolved during the hearing.
[47] Notwithstanding these issues, the panel finds that the claimant did not provide an adequate explanation for the discrepancies noted above. These are basic facts about the claimant’s life which she should be able to consistently recount if what she alleges is true. The claimant alleged that she moved in with her aunt and uncle for a specific purpose, to attend secondary school, a pivotal time that is usually associated with a specific age or year. Moreover, the panel asked numerous follow-up questions about her aunt’s children and the years that the claimant lived with her aunt. She did not correct herself, despite these opportunities to do so. While Counsel submits that any inconsistencies during the first hearing should be disregarded, the panel notes that she provided further contradictory testimony during resumptions. The claimant later testified that she moved in with her aunt when she was 13 years old and attended school while living there for two years, which contradicts the revised testimony that she gave at the start of the second hearing date.
[56] The RPD also considered Dr. Kitamura’s report and explains why it did not grant the request for an in-person hearing:
The various letters item the claimant’s psychiatrist, nurse practitioner, and her social worker have probative value with respect to the claimant’s psychological and medical problems, however I do not give any weight to the psychiatrist’s several findings of fact about the claimant’s narrative or his evaluation of the impact of the videoconference technology during the hearing on the evidence, matters that are within the purview of the Board. As already indicated, the panel found that the issues with the videoconference technology did not have a significant impact on the claimant’s testimony, and that remedies were promptly put in place when the matter was raised by the claimant and her counsel.
[57] The RPD points out that “Counsel did not explain how the quality of the video feed at any point during the hearing is to blame for any of the material discrepancies noted here.” This finding remains unchallenged before me. At the hearing before me in Toronto, the Applicant alleged generally that the failure to allow her an in-person hearing meant that there was no environment of trust in which she could speak and make her case. This is belied by the fact that the RPD accepted the Applicant’s case for past persecution by her uncle, and there is no evidence that any continuing problems with the video feed or an improper or hostile environment prevented her from speaking about future risk, the evidence for which mostly came from third-party family members in affidavit form.
[58] In other words, the Applicant is attempting to rely generally upon her various health problems and problems with the video feed to question the RPD’s findings without providing the specifics for each of the material discrepancies relied upon by the RPD. In taking this approach, she has not demonstrated a reviewable error on this point.
[59] Also, under this heading, the Applicant says that the RPD failed to follow the Gender Guidelines in the following ways:
14. It is submitted that the Board did not consider the Gender Guidelines. The Board’s approach failed to consider the repeated cycle of violence prevalent in domestic violence situations. The Board took a rigid approach in expecting the Applicant to regurgitate exact information from over 15 years ago. The Board did not approach the Applicant’s testimony from the medical and psychological contexts, which would have informed the gender guidelines.
[60] It isn’t entirely clear what the Applicant means by a “repeated cycle of violence” in the present context. The violence suffered by the Applicant at the hands of her uncle occurred before she came to Canada in 2003 and she has remained in Canada since that time without exposure to domestic violence.
[61] However, the RPD fully accepted that the Applicant had been abused by her uncle prior to her coming to Canada. The Applicant’s problem before the RPD was that she was unable to establish that she would face violence from her uncle if she returned to Saint Lucia:
[27] I find on a balance of probabilities that the claimant was physically abused by her uncle prior to her departure from Saint Lucia in 2003, and that this mistreatment constitutes persecution by reason of her membership in a gender-defined particular social group. I note that according to her psychiatric report, she reported being slapped, punched and verbally abused, and that she recalled being severely anxious and fearful in Saint Lucia as a result. With a few exceptions, identified below, I find that her testimony and the other supporting evidence was consistent and adequately detailed on this point, and in line with the objective evidence about Saint Lucia, which suggests that domestic violence remains “very common”.
[28] However, I have found the claimant’s testimony that she would face a serious possibility of persecution or a personal risk of harm from her uncle in Saint Lucia in the future not to be credible for the following reasons.
[62] If the RPD “took a rigid approach in expecting the Applicant to regurgitate exact information from over 15 years ago,” this is not apparent in the RPD’s reasons and it obviously accepted, for the most part, the Applicant’s evidence on what happened to her over 15 years ago.
[63] The Applicant’s allegation that the RPD “did not approach the Applicant’s testimony from the medical and psychological contexts” is unconvincing given the RPD’s full acknowledgment of the medical and psychological evidence in the context of assessing the evidence on future risk:
[44] The panel accepts the claimant’s medical diagnoses, including that persons suffering from these psychological illnesses or conditions “often have difficulties with concentration and memory, especially under times of stress”. It also notes that the hearing was stopped because the claimant became ill, and was unable to continue with the proceeding.
[64] The Applicant’s logic appears to be that the RPD’s failure to render a decision in