Thursday, July 28, 2011

Borisovna Abbasova–applicability of Gender Guidelines and failure to consider psychological issues in credibility

Borisovna Abbasova v. Canada (Citizenship and Immigration), 2011 FC 43 (CanLII)

Judge: Justice Shore

Date heard: January 10, 2011

Date decided: January 14, 2011

Counsel for Borisovna Abbasova: Denise Feret

Counsel for Minister: Christine Bernard

Place of Hearing: Montréal, Quebec

This was judicial review of a pre-removal risk assessment decision turning on the Gender Guidelines.

Justice Shore opened the reasons with the following emphatic but convoluted statement: “For decision-makers at all levels, procedural fairness sounds a rarely heard alarm, and that alarm must be heard if injustice is not to be done.” (para. 1)

The Applicant was a Russian national who alleged persecution at the hands of her common-law partner, in the form of domestic abuse complicated by the fact that the abuser was a police officer. She further alleged having been mislead by a fraudulent non-lawyer (para. 10).

Her refugee claim was denied in February 2009 (para. 12).

The Applicant filed a PRRA in August 2009, and it was denied in April 2010 (para. 13). A stay of removal was granted in June 2010 (para. 14).

The PRRA officer assigned no weight to the Applicant’s new evidence (para. 15).

The issues were whether the officer erred in not considering the relevant evidence and/or erred in failing to apply the Refugee Protection Division’s Guideline 7 of women fearing gender-related persecution (para. 16).

Justice Shore approved of the PRRA officer’s giving no weight to documentation which, while it post-dated the hearing, “simply echoed the information previously submitted” (paras. 28-30).

However, the PRRA officer also gave no weight to a post-hearing psychological assessment of the Applicant (para. 30). Justice Shore noted that the RPD had found the Applicant not credible, but the psychological report clarified this issue; the PRRA officer ought to have taken into consideration “Possible evidence of the applicant’s inability to testify” (paras. 30-31).

Justice Shore noted that:

It is not for the Court to reassess the evidence submitted to the PRRA officer and that is not what it intends to do; nonetheless, the developments in Ms. Abbasova’s evidence, particularly regarding her psychological condition, could have been considered to be relevant if they had been analyzed. More specifically, in her particular case, as shown, a psychological problem apparently impaired Ms. Abbasova’s ability to testify. That evidence could have been central to the determination of credibility, considering that the RPD and, subsequently, the PRRA officer found Ms. Abbasova not to be credible based on the answers she gave in her testimony. … (para. 37, emphasis in original)

Justice Shore also took into account the new evidence filed by the Applicant in the stay application, notwithstanding the fact that this new medical evidence was not before the PRRA officer (paras. 39-43). Furthermore, the Judge found that even if only the preliminary psychological evidence had been considered by the PRRA officer, the officer night have concluded in the Applicant’s favor or at least that there was an issue of credibility/psychological issues which warranted a hearing (para. 44).

Regarding the Gender Guideline, Justice Shore affirmed their applicability as an “aid” in PRRA decisions (paras. 53-54).

JUDICIAL REVIEW ALLOWED

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