Date: 20050119
Docket: IMM-9213-03
Ottawa, Ontario, this 19th day of January, 2005
Present: The Honourable Justice James Russell
BETWEEN:
MONICA LOURDES PANTAS
LAYLA YAEL LOURDES PANTAS
RODRIGO FACUNDO ENTRE RIOS
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review under s. 72(1) of the Immigration and Refugee Protection Act ("Act") S.C 2001, c. 27, of the decision made by an Officer of the Refugee Protection Division of the Immigration and Refugee Board ("Board") dated October 23, 2003 ("Decision").
BACKGROUND
[2] Monica Lourdes Pantas is a 39-year-old citizen of Argentina.
[3] Along with her two minor children, Layla Yael Lourdes Pantas and Rodrigo Facundo Entre Rios, she claims refugee protection.
[4] She bases her claim to a well-founded fear of persecution on being a woman in an abusive relationship.
[5] The minor children base their claims on the claim of Ms. Pantas, as well as on membership in a family group.
[6] They arrived in Canada in December 2001, and claimed refugee status at the Fort Eerie border.
[7] Ms. Pantas says that she was in an abusive relationship with a man called Aldo Ochoa. She says she moved in with Ochoa in August 1996, after which she "became aware of characteristics in Ochoa I had not seen before; jealousy and a desire to control me as if I was a piece of property."
[8] Ochoa is employed as a professional basketball referee.
[9] Ms. Pantas says she "tried to accommodate and manage the situation to make the relationship work." However, she says that, "in October 1996, Ochoa erupted into physical violence. He beat me, tried to strangle me, threw me to the floor and used humiliating language towards me." She says her son, Rodrigo, tried to defend her and Ochoa slapped him. As a result, she says her son suffered a split lip that required stitches. She took him to the hospital. She has provided notes from doctors, dated October 24, 1996, for both her visit and her son's visit. After leaving the hospital, Ms. Pantas says she went to the home of her parents. She says that Ochoa threatened to kill her if she went to the police.
[10] About a week after the October 1996 incident, Ochoa came to her parents' home and apologized. Ochoa asked her to return to him, and she did two days later.
[11] She then lived with Ochoa until June 1997. She says that Ochoa is the father of her daughter, Layla, born November 28, 1997.
[12] She says a second incident occurred in June, 1997 when she was four months pregnant. Ochoa accused her of "dressing in a way to attract other men, and then assaulted [her] so severely that [she] lost consciousness and awoke in the Fleming Hospital on Colon Street in Mendoza." She says she was in the hospital for at least ten days, following which she received medical care at her parents' home for the remainder of her pregnancy. She provided a doctor's note, dated June 26, 1997, which states that "Mrs. Pantas, who is in her fourth month of pregnancy, presents light and severe injuries caused by her partner's physical abuse, with a syndrome of threatened immature [sic] delivery."
[13] Ms. Pantas says that, even after moving into her parents' home, she received threatening phone calls from Ochoa. She says that Ochoa threatened to kill her if she "went with another man," or went to the police. Ochoa claimed that "he had many friends in the police."
[14] Regardless of the threats, Ms. Pantas says she reported to police station no.34 on November 2, 1998. She says that "violence erupted in the street where [she] was living" and that "[She] was assaulted by Ochoa," while he was visiting relatives on the same street. She says that, besides reporting to the police station, she went for medical attention and attempted to start legal action against Ochoa. She says she never heard anything from the police, nor did she hear about her case. She provided a doctor's note, dated November 2, 1998, which describes various traumas that she has suffered. She also provided a note dated August 6, 2001 that she says comes from the legal office handling her action, which states, in part (translation):
I have the pleasure of address you, in order to inform that this office has decided no longer to intervene in the case open under No 2320 of November 2nd 1998 for maltreatment and harassment that you and your daughter suffered by your partner ALDO OCHOA.
The decision is motivated by the fact that we did not have any positive result on the denunciations held due to the high degree of influence we suppose political that this individual has. With concern for the maltreatment and traumatism suffered by you and your daughter, we advise the intervention of international bodies in your case.
[15] Ms. Pantas says that a further incident occurred in June 2001. She says that when she went to pick up her son from school, Ochoa was there. She says that Ochoa talked to her son "and told him that we should all live together as a family again." After this incident, she says that her son feared returning to school.
[16] Ms. Pantas says she received further threatening phone calls in February 2001, following which she contacted her sister who lives in Canada. She says that her sister encouraged her to come to Canada, which she did in December, 2001.
[17] Ms. Pantas underwent a psychological assessment on June 13, 2003 in Toronto, Ontario. The assessment was conducted by Dr. J. Pilowsky, a registered psychologist. A written report, dated June 18, 2003, was submitted by Dr. Pilowsky, and contains the following:
DIAGNOSIS AND PROFESSIONAL OPINION
Ms. Pantas arrived punctually for her appointment accompanied by her five year old daughter. She began crying soon after she was advised that given the nature of her case, her five-year-old daughter could not be in the interview room with her. She cried for most of the interview and presented as uneasy and worried about the safety of her daughter outside. Nevertheless, she was forthcoming and came across as quite honest in her reporting of symptoms and affect. She seemed very depressed and discouraged about her future, yet appeared to be trying to make an effort to feel better because of her children. Her speech was clear and she spoke in a low tone of voice. It is my opinion that Ms. Pantas presented as very credible in her emotional distress and reporting of events.
Ms. Pantas presently meets the diagnostic criteria for Posttraumatic Stress Disorder (309.81) and Major Depressive Disorder, Moderate Severity (296.22). She has been highly traumatized by the abuse that she was forced to endure in her country. She was advised that even though she reported the abuse to the police, no help was given to her "because women have no protection in [her] country". She is also experiencing typical symptomatology of abused women including very low self esteem, feelings of worthlessness, and profound sadness. She has also internalized the abuse and believes that she is somehow responsible. She continues to relive the abuse through flashbacks, nightmares, and recollections. She also lives in the constant fear that her children will be taken from her and this fear has generalized to the belief that they could be kidnapped at any moment. Apparently, the recent news of a ten-year-old girl that was taken and murdered has exacerbated her fears.
I believe Ms. Pantas is not emotionally capable of dealing with a return to Argentina. She is utterly convinced that her life and the lives of her children are in danger there. She would suffer tremendous hardship and she may experience an emotional breakdown. This, in turn, would affect her ability to parent and care for her young children.
In addition to the hardship Ms. Pantas would have to face, the retraumatization of her twelve-year-old son cannot be underestimated. This young man has witnessed and experienced violence in the past and he is old enough to comprehend that a return to Argentina would mean further violence for him and his mother. I believe this would cause serious psychological damage to this young man. He has apparently benefited from living in a safe environment and forcing him to return to an unsafe one would lead to devastating and longstanding psychological consequences.
Ms. Pantas was given a letter for antidepressive medication to help her better control her present symptoms. She was also referred to the Centre for Spanish Speaking Peoples' abused women's support group. I believe with the above interventions in place and once the uncertainty of the hearing passes, Ms. Pantas will most likely improve psychologically. She will then be able to provide the loving and safe home environment she has longed to provide for her children.
[18] The psychology report is acknowledged in the text of the Board's reasons:
The claimant presented a psychological report dated June 18, 2003. The report iterates the PIF narrative. The report states that the claimant is suffering from Posttraumatic Stress Disorder and a major depressive disorder. The claimant was referred to the Center for Spanish Speaking Peoples' abused women's support group.
According to the claimant's testimony at the hearing, she was continuously employed while she lived in Argentina, having been employed as a health inspector for the public sector. None of the Argentinean medical and psychology reports refer to the claimant's inability to carry out activities on a daily basis or that she ever had any mental health condition either before or after 1999 that rendered her unable to care for and provide for herself and her children. (emphasis in original)
[19] Ms. Pantas has not submitted any records from Argentina resulting from a psychological assessment.
[20] However, her medical record, dated August 16, 2001, states that "although some of her symptoms are in remission, the patient must continue her psychological and psychiatric treatment."
[21] Her medical record, dated August 10, 1998, does indicate that she was "being referred to a psychologist with expertise in the matter concerned and her case is being approached by a multi-disciplinary team." No psychological follow up records were provided.
DECISION UNDER REVIEW
[22] The Board determined that the Applicants would not be subject to risk of persecution, torture, or risk to life of cruel and unusual treatment or punishment if returned to Argentina, because: (i) the Board was not satisfied there was a "reasonable chance" or a "serious possibility"(Adjei v. Canada (Minister of Employment and Immigration), [1989] 2 F.C. 680 (F.C.A.)) that the Applicants would be persecuted, should they return to Argentina, based on membership in a particular social group; and (ii) the Applicants are not persons in need of protection under s. 97(1)(a) or (b) of the Act.
[23] The Board identified four issues upon which the decision was based:
(i) identity as nationals of Argentina;
(ii) credibility;
(iii) well-founded fear of persecution; and
(iv) consolidated grounds.
[24] On the first issue, the Board found that the Applicants are nationals of Argentina.
[25] On the second issue, credibility, the Board challenged a number the Applicants' submissions: the letter from the lawyer in Mendoza; the plausibility of not reporting threatening telephone calls received after 2001 to the police; the medical letters from Argentina; the Canadian psychological report; the identity of Ochoa as the common-law spouse; and the alleged high profile of Ochoa as a basketball referee.
[26] The Board addressed each submission in turn. The credibility of the letter from the lawyer was challenged because: (i) the letter is not on official stationary; (ii) the letter is void of legal terminology; (iii) the writer advises the client to seek international protection; and (iv) the letter appears to be computer generated. The Board also challenged the credibility of the letter because it was sent to Ms. Pantas'residence. The Board went on to find that the letter was fabricated solely for the RPD hearing.
[27] The second challenge to the credibility was based on Ms. Pantas' failure to report the threatening telephone calls, received after June 2001, to the police. The Board found that, because she had reported the November 2, 1998 incident to the police in the past, her failure to report subsequent events damaged her credibility.
[28] The third credibility challenge was based on the medical letters from Argentina. The Board did not challenge the medical treatment that Ms. Pantas and her son received between 1996 and 1999. The Board did state, however, that there was no reliable evidence of any medical or psychological care in Argentina after 1999.
[29] The fourth challenge was to the Canadian psychological report. No reasons were given to disbelieve the report, but the Board took the position that none of the Argentinian medical documents support Ms. Pantas' "inability to carry out her activities of daily living," or "rendered her unable to care for and provide for her children," while she was in Argentina.
[30] The fifth challenge was to the identity of Aldo Ochoa as Ms. Pantas' common-law spouse. The Board pointed out that there is no specific reference to Ochoa in any of the medical documents. The Board also drew adverse inferences from the fact that Ochoa is not named as the father on Layla's birth certificate. The space is blank. The Board concluded that "[T]here is no reliable evidence before the panel that Aldo Ochoa was a common-law partner or that he was the perpetrator of her [Ms. Pantas'] abuse." (emphasis in original). The Board also questioned whether Ochoa, as a basketball referee, could be accorded a high profile in Argentina.
[31] Following the credibility discussion, the Board went on to discuss the well-founded fear of persecution. The Board found that state protection is available in Argentina for women in abusive relationships, particularly in Buenos Aires. At the international level, Argentina is a signatory to the Convention on the Elimination of All Forms of Violence Against Women ("CEDAW"), as well as the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women. (RPD Disclosure Package - Argentina, September 2002, section 3, "Gender")
[32] At the national level, the Consejo National de la Mujer (National Women's Council, "CNM") is in charge of maintaining the floor of rights prescribed by the international conventions. In Buenos Aires, the provincial government has established two centres, and a twenty-four hour hotline has been set up for women who have been the victims of violence. There are also other services in Buenos Aires for women who have been the victims of violence. The Board went on to find that the documentary evidence indicates that Argentina, and especially Buenos Aires, offers protection for the Applicants. The Board acknowledged that the protection may not be perfect, but it is available, and the onus is on the Applicants to show why they cannot avail themselves of state protection.
[33] The Board found that both parts of the test set out by Mahoney J. in Rasaratnam v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 706 (F.C.A.) were met: (i) the Board must be satisfied on a balance of probabilities that there is no serious possibility of the claimant being persecuted in the part of the country to which it finds an Internal Flight Alternative ("IFA") exists; and (ii) conditions in that part of the country must be such that it would not be unreasonable, in all the circumstances, including those particular to the claimant, for the claimant to seek refuge there.
[34] The final issue was consolidated grounds. The Board concluded that, "[s]ince the panel did not find the claimant's claim to a well founded fear of persecution to be objectively well-founded, it must also fail on the grounds of a risk to life and danger to torture."
ISSUES
[35] The Applicants raise the following issues:
1. The Board erred in law by mischaracterizing and ignoring material evidence, including expert psychological evidence, and drawing unfounded negative inferences;
2. The Board erred in law in assessing and determining the well-foundedness of the claim with respect to state protection, domestic violence, and IFA.
ARGUMENTS
Applicants
[36] The Applicants submit that the Board did not provide material reasons for challenging Ms. Pantas' credibility. Further, in challenging her credibility, the Board relied upon frivolous and unfounded negative inferences.
Challenge to Ms. Pantas' Credibility
The Lawyer's Letter
[37] The first challenge to credibility was through the lawyer's letter. The Applicants submit that the lawyer's letter included the letterhead of the law firm, with address and telephone/fax numbers.
[38] The Applicants further submit that the lawyer's letter is signed with the name of the lawyer. A legal identification number for the lawyer is also given.
[39] The Applicants say that the Board's finding that the letter is fabricated is erroneous because there is no way of determining what the Board means by "official stationary." The lawyer's name, the law firm's address, the telephone/fax numbers, and the lawyer's identification number, all appear on the letter. The Applicants submit that the appearance of the lawyer's letter is both official and genuine, and the Board did not make any inquiry to verify the information in the letter.
[40] The Applicants also challenge the negative inference that the lawyer's letter is void of legal terminology. The Board fails to define what it means, or expects, by way of legal terminology. The Applicants point out that most lawyer's letters to a client or non-lawyer do not contain legal terminology.
[41] The Applicants further submit that there is no evidence that the Board member was a lawyer, and they challenge the expertise of the Board with relation to the assessment of the lawyer's letter.
[42] The Applicants argue that the negative inference drawn from the fact that the letter is computer generated is also without basis because most lawyer's letters are computer generated.
[43] The Applicants say that the contents of the lawyer's letter cannot be questioned on the grounds that: (a) the letter was mailed to Ms. Pantas' residence; (b) the letter implies lack of state protection, or advises Ms. Pantas to seek international protection; and (c) the letter imputes a political profile to a basketball referee. None of these factors negate the authenticity of the document, since the letter represents the lawyer's opinion.
[44] The Applicants submit that the Board did not provide any material evidence to support the inference that the lawyer's letter was fabricated, and failed to inquire into the full credentials and identification of the lawyer provided by the Applicants.
Medical and Psychological Care
[45] The Board accepted the medical documentation provided for the period between 1996 and 1999.
[46] The Applicants submit that the Board's acceptance of Ms. Pantas' abuse and treatment from 1996 - 1999 supports her credibility and contradicts the Board's negative inferences with regard to credibility.
[47] The Applicants says the Board erred in law by inferring no further medical or psychological care, after 1999, and by ignoring Ms. Pantas' testimony with respect to periodic psychological care in 2000.
Canadian Psychological Report
[48] The Applicants point out that the Board acknowledged the Canadian psychological report, but ignored the report's substance. Instead of a report analysis, the Board drew a negative inference because the medical documents from Argentina do not include a reference to Ms. Pantas' being unable to care and provide for herself and her children.
[49] The Applicants say that psychological reports are material in determining credibility, and reasons must be provided for rejecting them. Failure to provide reasons is an error of law.
[50] The Applicants argue that the test used by the Board was irrelevant to the medical and psychological issues to be determined.
[51] They further submit that a psychological report must be considered as a constituent element in forming Board determinations and, in this case, the Board failed to treat the Canadian report as such.
[52] The Applicants say that in a case where a psychological report is deemed not to be persuasive, the Board has an obligation to explain why. In this case, the Board did not provide any reasons why it did not find the Canadian psychological report persuasive.
[53] The Applicants argue further that the Board's acceptance of Ms. Pantas' abuse and treatment from 1996 - 1999 must be considered to place an even greater obligation on the Board to assess all of the psychological and medical evidence in detail.
Aldo Ochoa as the Common-Law Partner
[54] The Applicants say the Board ignored written evidence and testimony identifying Ochoa as Ms. Pantas' persecutor. They concede that no name appears on Layla's birth certificate, and that no name appears on the Argentinian medical reports. The absence of a name, however, without greater evidence, is not a valid reason to reject Ochoa as the perpetrator.
[55] The Applicants argue, with regard to Ochoa's profile, that Ochoa was known as a professional basketball referee, both nationally and locally, and his name appeared in the newspaper.
Well- Founded Fear
State Protection
[56] The Applicants submit that Ms. Pantas sought police protection and retained a lawyer. They allege that the lawyer withdrew because of corruption and influence, which prevented the lawyer from being useful.
[57] The Applicants point out that corruption and inadequacy of the police in Argentina is well documented. They rely on the United States Department of State ("DOS") report on Human Rights Practices - 2002 for Argentina, which states, in part:
The Government generally respected the human rights of its citizens; however, there were problems in some areas. There were instances of killings, torture, and brutality by police and prison officials. Authorities prosecuted some police for such actions, although impunity continued, particularly in jails and prisons. Police corruption was a problem. Police used excessive force against demonstrators on several occasions. Overcrowding in jails and prisons was a problem. Provincial police sometimes arbitrarily arrested and detained citizens ... Domestic violence against women was a problem.
[58] The Applicants further submit that the current DOS report, from 2003, corroborates the risks with relation to human rights abuses, police corruption, and inadequate government mechanisms to address the problem of corruption and use of force by police officers. The current report emphasizes concern with regard to filing domestic abuse reports, and says that victims are reluctant to file because of: (a) fear of police retaliation; or (b) belief that no action will result from a report. The report does not give an estimate of the percentage of reported cases, which the Applicants say is between 10% and 20%.
Well Founded Fear - IFA
[59] The Applicants argue that a reasonable IFA in Buenos Aires is not available. The current DOS report states that "one small shelter [for battered women] in a capital city [Buenos Aires] of more than 12 million is obviously inadequate to commence to address the problem." The Applicants go on to cite information request ARG 37270.E, 28 June 2001, which claims that, although there are now laws in place to prohibit sexual exploitation, judicial intervention is almost non-existent.
[60] The Applicants submit that Law 24.417 is in place in Buenos Aires, but the law, which is designed to protect against Family Violence, is inadequate. The Applicants rely on Elcock v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1438 (F.C.T.D) which states that the Board must "effectively analyse, not merely whether a legislative and procedural framework for protection existed, but also whether the state, through the police, was willing to effectively implement any such framework." The Applicants say that the police in Argentina are not trained to deal with female victims of violence, nor is there a reliable and consistent rule of law for domestic violence.
[61] The Applicants cite the words of Rothstein J. in Jane Doe v. Canada (Minister of Citizenship and Immigration), [1996] F.C.J. No. 1579 at para. 1, as being applicable to their case:
The words used by the panel and its references to the evidence suggest that it may have required the applicant to exhaust absolutely all avenues of protection rather than taking all steps reasonable in the circumstances to seek protection in the country of origin.
[62] The Applicants submit that there is no reasonable IFA as suggested by the Board. The Applicants' persecutor is a national basketball referee who travels throughout Argentina in his work.
[63] The Applicants further submit that any action taken in Buenos Aires is dependant on the attitudes of individual police chiefs and not on the rule of law.
[64] After finding that an IFA exists, the Board was obliged to determine the reasonableness of the IFA in the particular circumstances of the Applicants' case, (Rasaratnam) and independently of the issue of well-foundedness of the Applicants' fear of persecution.(Nizamov v. Canada (Minister of Employment and Immigration), [1995] F.C.J. No. 805 (F.C.A.).)
[65] The Applicants also submit that the Canadian psychological report may provide objective evidence that an IFA would be unduly harsh, in view of past persecution in one part of the country. (Singh v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 1044 (F.C.T.D.).) Hence, the Board erred in failing to consider the psychological evidence in assessing the reasonableness of an IFA.
Respondent
[66] The Respondent submits that the Board came to the correct conclusions on credibility, and IFA.
Credibility
[67] The Respondent says the Applicants have failed to demonstrate that there is an arguable issue of law upon which judicial review can succeed. The Respondent cites Noël J., in stating that the Court must be "most careful not to substitute its decision for that of the Board, where the decision is based on an assessment of credibility." (Ankrah v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 385 (F.C.T.D) at para 7.)
[68] The Respondent further submits that the Court should not interfere with the Decision unless there has been an overriding error made by the Board (Oduro v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1421 (F.C.T.D)). Relying on Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (F.C.A), the Respondent asserts that the Board is entitled to make reasonable findings, based on implausibilities, common sense, and rationality.
[69] The Respondent also argues that the Board is entitled to reject uncontradicted evidence if it is not consistent with the probabilities affecting the case as a whole. The Board can also prefer documentary evidence to testimony. (Zvonov v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 1089 (F.C.T.D.))
[70] In the case at bar, the Respondent points out that, in assessing credibility, the Board correctly concluded that:
(a) the lawyer's letter should be given little weight because it was not written on official letterhead, and appeared to be computer generated;
(b) it was implausible that a basketball referee would have a political profile;
(c) it was implausible that Ms. Pantas would not file a police report after the alleged June 2001 incident, considering that she had filed a complaint in the past;
(d) none of the Argentinian medical reports made any specific reference to the alleged perpetrator; and
(e) the perpetrator is not named as the father on the daughter's birth certificate.
[71] The Respondent also submits that an expert report cannot, by itself, serve as a cure for any and all deficiencies in Ms. Pantas' testimony. (Boateng v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 517 (F.C.T.D.); Rosales v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No 1454 (F.C.T.D.))
[72] The Respondent says that the Board did not err in giving more weight to the medical evidence from Argentina than to the Canadian psychological report.
[73] The Respondent points out that Ms. Pantas was abused between 1996 and 1999, but there was no reliable evidence that the Applicants suffered any further abuse after 1999.
[74] The Respondent argues that, with regard to credibility, the Court should not re-weigh the evidence. If the finding of the Board is supportable by the evidence, the Court should not interfere. (Azad v. Canada (Minister of Citizenship and Immigration), [1995] F.C.J. No. 136 (F.C.T.D))
Well Founded Fear - IFA
[75] The Respondent also argues that an IFA requires that the Applicants have a well-founded fear of persecution which renders them unable or unwilling to return to their own country.
[76] The Respondent's position is that the idea of an IFA is inherent in the definition of a Convention refugee. If the Applicants are able to seek safe refuge in their own country, there is no basis for finding that they are unwilling or unable to avail themselves of the protection of that country. Further, once the Board raises the issue of an IFA, the onus is on the Applicants to show that there is a serious possibility of persecution throughout the country (Thirunavukkarasu v. Canada (Minister of Employment and Immigration), [1994] 1 F.C. 589 (F.C.A.)).
[77] The Respondent submits that the test for an IFA is objective, and following Thirunavukkarasu, the question is whether, given the persecution in the Applicants' part of the country, it is objectively reasonable to expect them to seek safety in a different part of the country before seeking haven in Canada.
[78] The Respondent says that it is generally presumed that, in the absence of a complete breakdown, a state is able to protect a claimant (Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689). Further, the Respondent submits that state protection need not be perfect, but merely available (Canada (Minister of Employment and Immigration) v. Villafranca, [1992] F.C.J. No 1189 (F.C.A.)). The Respondent argues that the Board's finding that there is an IFA available to the Applicants in Mendoza is correct. In the alternative, the Respondent submits that the Board's finding that an IFA is available in Buenos Aires is correct.
[79] The Respondent says that the Board did not err in concluding that there was a valid and reasonable IFA for the following reasons:
(a) Ms. Pantas had completed high school and had attended university;
(b) she had been employed on a regular basis, and is employable as either a secretary, or a Health Inspector; and
(c) Buenos Aires is the capital, and it is reasonable to expect that the Applicants could receive any necessary medical and psychological attention there.
[80] The Respondent submits that, although the Board did not mention some of the oral and documentary evidence, the exclusion was not fatal to the Decision. The Board accorded the proper amount of weight to the evidence provided. The Board must be assumed to have weighed and considered all the evidence presented to it, unless the contrary is shown (Florea v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 598 (F.C.A.)).
Analysis
The Decision as a Whole
[81] The Decision is somewhat confusing. The principle conclusions are:
1. "There is nor (sic) reliable evidence before the panel that the claimant experienced the incidents alleged after the incident in 1998";
2. "The panel finds that state protection is available in Argentina especially in Buenos Aires ... . She could receive protection in Mendoza or in Buenos Aires";
3. "The claimant could return to Argentina and live in Buenos Aires ... . The panel finds that both parts of the test in Rasaratnam have been met."
[82] It is not entirely clear why, if the Board found "state protection is available in Argentina," there was a need to go on to say that she could "return to Argentina and live in Buenos Aires ... ." The suggestion is that there is an IFA available to the Applicants in Buenos Aires. But it is unclear what relevance an IFA has if there is adequate state protection in Argentina.
[83] The Respondent says there are three separate grounds for the Decision, any one of which will support the Decision as a whole. This is not clear in the Decision and, in any event, the Board tends to conflate the issues in its reasons. For instance, when discussing the negative inference to be drawn from the lawyer's letter concerning Ms. Pantas' credibility, the Board says the "documentary evidence indicates that perpetrators of domestic violence are dealt with by the legal system in Argentina. The documentary evidence does not substantiate the implied lack of state protection in the lawyer's letter." In other words, the Board uses the documentary evidence on country conditions to bolster a conclusion on the authenticity of a lawyer's letter it has already decided is highly questionable for other reasons.
[84] Presumably then, the converse must apply. If there is no real basis upon which to question the authenticity of the lawyer's letter, the Board should have specifically dealt with that letter as part of its discussion on country conditions.
[85] I do not believe that the grounds for the Decision can be kept separate in the way suggested by the Respondent.
Credibility
[86] The Board provides a number of grounds for questioning Ms. Pantas' credibility, many of which cannot be supported on the basis of evidence or logic.
The Lawyer's Letter
[87] The Board thought the lawyer's letter was fabricated because:
1. the letter is not written on official stationary;
2. it is void of legal terminology;
3. the letter advises the claimant to seek international protection;
4. it appears to be a computer generated letter;
5. when asked if she went to the lawyer's office to obtain the letter, Ms. Pantas said that the inquiry could affect her in a way, and that this is why the lawyer sent the letter to her residence;
6. to impute a political profile to a basketball referee is possible but not probable;
7. the documentary evidence does not substantiate the implied lack of state protection in the lawyer's letter.
[88] Revealingly I think, the Board does not reproduce the letter accurately in its reasons. The original introduced at the hearing contains a very official looking name and address for a law firm in Mendoza. Hence, it is impossible to tell what the Board has in mind when it refers to "official stationary" or whether it believed there was no name and address for the law firm. Why a letter to a client requires "legal terminology" is not immediately apparent, and why a letter from a lawyer should be inauthentic because it is "computer generated" or because it "advises the claimant to seek international protection" defies logic. The Board is just plain wrong, also, when it says that the letter imputes a political profile to a basketball referee. The letter imputes a high degree of political influence to someone called Aldo Ochoa; it doesn't say this influence is due to the fact that he is a basketball referee.
[89] In my view these reasons and grounds for doubting the authenticity of the lawyer's letter are patently unreasonable and perverse. The Board says that it finds the letter to be fabricated "when all of the above is taken into consideration." Hence, even if some of the reasons adduced were not perverse, the Board's reasons on the lawyer's letter cannot stand.
Failure to Report Threatening Telephone Calls
[90] The Board drew a negative inference from the fact that Ms. Pantas failed to report threatening telephone calls received after June 2001:
When asked why she did not report these threatening telephone calls to the police, she said that she was afraid. The claimant's actions are not credible considering that she alleged that she had filed a police complaint (denunciation) and she had initiated a court case that was still in progress.
[91] I can find nothing in the transcript of the hearing to warrant this conclusion. Ms. Pantas made it clear that she had reported incidents to the police in the past, but to no avail, and that at the material time in 2001 she was seeing her lawyer on a regular basis and attempting to find a legal resolution to the threats. This finding of the Board, in my opinion, is unwarranted and perverse.
Medical Letters from Argentina
[92] The Applicants presented various written notes concerning medical care Ms. Pantas and her son had received in Argentina. The Board's conclusions were as follows:
When all of the above is taken into consideration, the panel finds on a balance of probabilities that the claimant and her son received medical treatment from 1996 - 1999. There is no reliable evidence of any continuing medical or psychological care from 1999 onwards. There is no specific reference to a perpetrator named Aldo Ochoa in any of the medical or psychological reports.
[93] The Board accepts the Applicants' story for the period 1996 - 1999, but draws a general negative inference because the perpetrator is not specifically mentioned in medical reports and there is no "reliable evidence" of continuing medical or psychological care in Argentina from 1999. In effect, the Board is saying that, because no written evidence was adduced for the period after 1999, it would not accept Ms. Pantas' testimony with respect to periodic psychological care in 2000. And the Applicants general credibility is questioned because there is no specific mention of Aldo Ochoa.
[94] This makes little sense to me. There is no specific reference to Aldo Ochoa in the reports submitted for 1996 - 1999, but the Board accepts those reports and Ms. Pantas' treatment for that period. In addition, the Board gives no reason for not accepting Ms. Pantas' oral testimony on the medical care in Argentina for the period after 1999.
[95] The Board's point appears to be that the medical reports do not prove that Aldo Ochoa was the perpetrator. But there is no discussion as to why they should, or what relevance this has for other evidence adduced by the Applicants to show that Aldo Ochoa was the perpetrator, or why the Applicants' sworn testimony or this issue should not be accepted.
Canadian Psychological Report
[96] The Applicants introduced a detailed and supportive psychological report from a Dr. Pilowsky, a registered psychologist.
[97] The Board's only comment on that report is as follows:
According to the claimant's testimony at the hearing, she was employed continuously while she lived in Argentina, having been employed as a health inspector for the public sector. None of the Argentinean medical and psychological reports refer to the claimant's inability to carry out her activities of daily living or that she ever (emphasis in original) had any mental health condition either before or after 1999 that rendered her unable (emphasis) to care for and provide for herself and her children.
[98] This appears to suggest that the Board was of the view that the Canadian report carries no weight because the Argentinian medical evidence did not show that the Applicant couldn't do her job or look after her children in Argentina. In effect, the Board draws a negative inference from the absence of evidence in the Argentinian medical documents to discount the Canadian psychological report, in complete disregard of what the Canadian report says.
[99] The Canadian psychological report supports the Applicants' narrative in many ways and the Board cannot reject it without giving reasons. It cannot say that an absence of evidence on certain matters in other documentation means that the Canadian report can be disregarded or that a negative inference can be drawn against the Applicants on this issue. The Board's treatment of Dr. Pilowsky's report was perverse.
Aldo Ochoa
[100] The Board concluded that "There is no reliable evidence before the panel that Aldo Ochoa was a common-law partner or that he was the perpetrator of her abuse."
[101] The reasons that the Board gives for coming to this conclusion are that "Aldo Ochoa is not named as the father on her daughter's birth certificate" and "Aldo Ochoa is not referred to in any of the medical reports." (emphasis in original)
[102] Once again, the Board's approach is to reject Ms. Pantas' entire testimony concerning her relationship with Aldo Ochoa and what he did to her and her children because his name is not mentioned on a birth certificate or in medical records. Instead of dealing with what she did testify about Aldo Ochoa and the other evidence she adduced concerning this matter, the Board summarily dismisses her story because of an absence of confirmation in certain documents. To put it bluntly, the fact that a birth certificate and medical records do not name Aldo Ochoa (quite apart from the issue of whether, in the circumstances of this case, one would expect them to) does not mean that Ms. Pantas' direct evidence about Aldo Ochoa can be just swept aside without addressing that evidence on its own merits. The Board's approach in this issue was patently unreasonable.
State Protection and IFA
[103] The Respondent says that even if the Court finds the Board's approach and conclusions about credibility patently unreasonable, it doesn't matter because the Decision can be justified on the basis of adequate state protection and IFA.
[104] As I have already mentioned, the Decision itself is not clear as to what the Board means on these issues: "state protection is available in Argentina especially in Buenos Aires"; "she could receive protection in Mendoza or in Buenos Aires"; "the claimant could return to Argentina and live in Buenos Aires."
[105] In my opinion, the Board's findings on adequate state protection and IFA, whatever they might be, and quite apart from the way the Board handles the documentary evidence and the applicable legal tests, cannot be isolated from other issues dealt with by the Board under the heading of "credibility." The lawyer's letter, the psychological report and Ms. Pantas' own testimony on what she faces in Argentina are all highly relevant to the discussion on adequate state protection and IFA. As already indicated, the Board's handling of key issues was patently unreasonable and it would not be safe to allow the Decision to stand on any of the grounds cited by the Board for denying the Applicants refugee protection. The Decision as a whole is patently unreasonable.
ORDER
THIS COURT ORDERS that
1. This Application for judicial review is allowed and the matter is returned for reconsideration by a differently constituted panel.
2. There is no question for certification.
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JFC
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9213-03
STYLE OF CAUSE: MONICA LOURDES PANTAS ET AL v. MCI
PLACE OF HEARING: Toronto, Ontraio
DATE OF HEARING: OCTOBER 18, 2004
REASONS FOR ORDER: RUSSELL J.
APPEARANCES:
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FOR THE APPLICANT
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Barrister & Solicitor Toronto, Ontario |
FOR THE APPLICANT |
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Toronto, Ontario |
FOR THE RESPONDENT |