Date: 20060630
Docket: IMM-6838-05
Citation: 2006 FC 839
Ottawa, Ontario, June 30, 2006
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
RUKHSANA KHAN, MUHAMMAD KHAN, MAHAM KHAN
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
Background
[1] The Refugee Protection Division (the tribunal) in its October 20, 2005 decision, which the applicants are challenging in this proceeding, did not believe Rukhsana Khan's story. She is a citizen of Pakistan. The other applicants are her eight-year-old daughter Maham, a citizen of the United States and her four-year-old son Muhammad, also a citizen of Pakistan. She also has another child, her daughter Rida, born on January 11, 2003, in Canada.
[2] The applicants' refugee claim had previously been negatively determined by another tribunal on January 7, 2004. However, that decision was set aside by Justice Harrington (see Rukhsana Khan et al. v. MCI, 2005 FC 139).
[3] The essence of Mrs. Khan's story is that she fled Pakistan, nine months pregnant, accompanied by her two children landing in New York City in early January 2003, spending a few days there, arriving at Lacolle, Quebec on January 10, 2003, making a refugee claim, and giving birth the next day.
[4] Mrs. Khan alleged she was a battered wife fearing her husband who is living in Pakistan should she be forced to return there. She also alleged her husband, (now her ex-husband) threatened to give her daughter Maham to his second wife (a deed of divorce dated May 14, 2003 was filed as an exhibit) a person who Mrs. Khan said she also feared.
[5] In addition to the tribunal's broad credibility finding, it found Mrs. Khan failed to establish her place of residence before arriving here overland with her children on January 10, 2003 from the United States.
The Tribunal's Decision
1.Credibility
[6] The tribunal found "her testimony was general, hesitant and improvised. There were important omissions, implausabilities and inconsistencies for which she did not offer satisfactory explanations" which caused the tribunal to find "the lack of credible evidence either testimonial or documentary, to support her claim which led the tribunal to believe that the claimant was not credible when she alleged that she travelled to Canada because her husband beat her and threatened to take her daughter away from her."
[7] The tribunal gave the following examples:
[8] First, Mrs. Khan testified even though she always had problems with her husband since she married him in 1996, she only decided to flee Pakistan after her husband threatened her to give her daughter to his second wife. The tribunal wrote:
"In the tribunal's opinion, the claimant failed to establish with credible evidence that her husband had a second wife or that he wanted to give her daughter to her. The claimant stated in her narrative, that, sometime after her son's birth in January 2001, her husband told her that he was married to a second wife. Her narrative did not state when her husband got married again, neither on what date he told her of his second marriage."
[9] Second, on the same point, the tribunal wrote at the hearing, when Mrs. Khan was asked when her husband got married to his second wife, Mrs. Khan said she did not remember. When asked further when she learned of his second marriage, Mrs. Khan responded in July 2002, her husband told her that he was married "two to three years ago." The tribunal wrote she was asked why she had not spontaneously said this earlier. The tribunal observed and concluded:
"At first, the claimant simply paused; later she alleged that she forgot certain things because she had been in Canada for three years. Her explanation was not satisfactory. The claimant seemed to improvise her testimony."
[10] Third, again, on the same point, the tribunal stated later at the hearing "the claimant adjusted her statements with regard to when her husband originally told her that he was married to his second wife. She said that in the year 2001, when her son was born, her husband told her of his second marriage, but it was "confirmed" in July 2002." The tribunal observed:
"Numerous questions had to be asked to clarify her statements. The claimant's testimony was hesitant, evasive, confusing and inconsistent. For example, she alleged that in the year 2001, when her husband told her about his second marriage, she believed him "a little bit." But when she was asked to explain what she meant, she said that she believed him. Asked further what she meant when she said her husband's second marriage was confirmed in July 2002, she claimed that her husband confirmed it to her. Confronted with her inconsistent statements regarding the first time she learned from her husband of his second marriage, again the claimant adjusted her statement. She alleged that in the year 2001, when her husband told her that he got married, she did not believe him. Then it got confirmed as she said, without offering any other details. Her inconsistent statements affected her credibility."
[11] Fourth, the tribunal stated Mrs. Khan testified that sometimes her husband would tell her that he was married to a second wife; sometimes he denied it, telling her that he was joking. The tribunal asked if she made any effort to find out whether or not her husband was married to a second wife, the tribunal said Mrs. Khan responded that she had asked her brother to "go and see", and that her brother told her that, "it seems like that he is married." The tribunal stated she did not offer any other details of "how her brother came to that ambiguous conclusion." The tribunal said she was asked if she had made any other effort to find out whether he was married to a second wife such as inquiring at the Municipal office to determine whether the marriage was registered there since her marriage with her husband had been registered at the Municipal office. The tribunal wrote:
"Asked if she tried or if she asked a lawyer to inquire with the Municipal office whether or not her husband's alleged second marriage had been registered, the claimant responded that she did not inquire because in July 2002, "it was confirmed he got married", and because four marriages are allowed in their religion."
[12] Fifth, the tribunal noted Mrs. Khan testified she had never seen, nor spoken to her husband's second wife, she only knew her name was Nabila and, according to people from her family who claimed to have seen her with her husband, Nabila would be older than she is. The tribunal stated:
"The claimant did not explain satisfactorily why she would not inquire with the Union Council whether or not her husband was married to a second wife. Her inconsistent and confusing testimony led the tribunal to believe that she was not credible on this issue."
[13] Sixth, in her PIF, Mrs. Khan wrote that in July 2002, her husband informed her of his intention to give Maham to the custody of his second wife. The tribunal noted "however, the claimant alleged at the hearing that it was in the year 2001, when her husband informed her about his decision to give their daughter away." The tribunal wrote:
"Reminded of her inconsistent statements, the claimant alleged that at first, her husband told her that he was joking about the daughter, but in July 2002, he "confirmed" his intention. She did not give any other details. However, her narrative omitted to state that prior to July 2002 her husband never spoke to her of giving their daughter to the custody of his second wife. Her inconsistent testimony affected her credibility. As well, other than speaking about it, her husband did not take any specific action to take their daughter away from the claimant. The claimant's original explanation, that her husband did not take their daughter because they moved to the house of her mother, was not satisfactory."
[14] Seventh, the tribunal identified another adjustment in Mrs. Khan's testimony as well as an implausibility from the fact Mrs. Khan and her daughter were not in hiding from her husband despite the knowledge that if he had taken Maham away there was nothing she could do. The tribunal stated later at the hearing, Mrs. Khan adjusted her statements and alleged that her husband did not act in taking their daughter because she was pregnant to their third child and he was concerned that she may have complications with her pregnancy. The tribunal noted Mrs. Khan also testified that after she moved to her mother's house, whenever her husband met her on the road, he used to beat her and hit her on the stomach. The tribunal stated:
"Confronted with the implausibility that her husband would hit her on the stomach if he were concerned his behaviour would affect her or her baby's health, the claimant avoided responding directly. She claimed that her parents asked her husband to deal with the issue of her daughter's custody after she gave birth. Reminded that this alleged fact was omitted from her narrative or her earlier oral testimony, she did not offer any explanation. The claimant's improvised testimony was lacking in consistency and affected her credibility."
[15] Eight, Mrs. Khan testified she travelled to Canada with her children without her husband having given his consent to their departure from Pakistan. He knows they are in Canada and has telephoned them once. He has not taken any action against Mrs. Khan. The tribunal observed that according to a "Deed of Divorce" dated May 14, 2003, her husband gave the minor applicants custody to Mrs. Khan. The tribunal wrote:
"Asked how she explained that her husband gave her custody, she responded because pursuant to Pakistani law, children under twelve years old could stay with their mother. However, she alleged that her husband was determined to give their daughter to his second wife. This alleged fact was inconsistent with his decision, approximately four months after the claimants travelled to Canada, to grant the custody of his children to Mrs. Khan instead of pursuing her in Court."
[16] Ninth, the tribunal was of the view the Deed of Divorce "that this is a fabricated document" the tribunal reasoned:
"The divorce declaration was made on an affidavit form allegedly signed by the claimant's husband in front of two witnesses. It contained numerous misspellings. The claimant said that her brother sent this document to her. Her brother and her husband had it made after they paid an amount of money to some people, who she said, sit outside of the Court. She alleged that this Deed of Divorce was attested to in Court. However, it only stated that it was "Counter Signed by a Justice of the Peace." Moreover, this document stated that the claimant and her husband had only two children. However, in May 2003, when this document was issued the claimant had already given birth to their third child in January 2003, and the claimant said that her husband was aware of this fact. Her explanation, that the Deed of Divorce only listed two children because she only brought two children from Pakistan, makes no sense. For these reasons, there was no probative value given to the Deed of Divorce."
[17] Tenth, the tribunal observed this was not the first time Mrs. Khan travelled to the United States where she has relatives. The tribunal noted she testified that in the year 1997 she entered the United States when she was nine months pregnant because she wanted to stay there along with her husband in order to offer better opportunities to her children. The tribunal noted that in January 2003, she "allegedly travelled to the US and Canada a few days before giving birth to her third child." The tribunal stated she was asked what was the urgency in her state of advanced pregnancy risking her and her child's health. The tribunal stated:
"She responded that she planned to travel since July 2002, but she had to sell her apartment first. Once her apartment was sold, she claimed that she bought the tickets. In the tribunal's opinion, the claimant did not establish that she left Pakistana few days before giving birth because she feared for her safety. Moreover, in view of the fact that her daughter is an American citizen and that they allegedly stayed in the US with relatives for three days before travelling to Canada, the claimant was asked if she considered claiming asylum in the United States. She responded in the negative and said that her husband travels to the US, and that everybody told her to come to Canada because it is a peaceful country and that they would have a comfortable life. There was no other credible evidence presented that the claimant or her children risked having any problems from her husband in the United States. The claimant's decision not to claim asylum at the first opportunity in the United States was inconsistent with her alleged fear and affected her credibility. There was no evidence that the claimant or her children were targeted by her husband's second wife."
[18] The tribunal expressed its conclusion in the following matter:
"Having assessed all of the evidence presented, the tribunal concludes that the claimant did not establish with credible evidence that there was a serious possibility her or her son would have a well-founded fear of persecution should they return to Pakistan. Moreover, she has not satisfied her burden of establishing that it is more likely than not that she or her son would personally face a risk of cruel and unusual treatment or punishment or be subjected to a danger of torture upon return.
In addition, she has not established that her daughter, Maham Khan, would have a well-deserved fear of persecution under section 96 of the Act or that she is a person in need of protection within the meaning of section 97(1)(a) and (b) of the Act if she returned to the U.S."
2. Place of Residence
[19] The tribunal made its determination Mrs. Khan had failed to establish the applicants' place of residence before coming to Canada on the following findings of fact which were arrived at by contrasting what Mrs. Khan had written in her Personal Information Form (PIF) and what she said or wrote at the point of entry (POE).
[20] In her PIF, the tribunal said Mrs. Khan stated she left Pakistan on January 6, 2003, entered the United States the next day and arrived in Canada on January 10, 2003.
[21] At the POE, the tribunal found she said to the Immigration Officer or wrote on the POE Immigration Form she entered the United States in May of 2001 but her date of exiting the United States to Canada varied widely from departing the US on May 23, 2003, (which the tribunal found made no sense because the applicants were already in Canada), to January 2003 writing she was living in the Bronx in answer to a question where she was living. For her children, it was written that Muhammad resided in the United States from May 20, 2001 to January 10, 2003 and for her daughter Maham, born in the United States, she resided there from May 19, 2001 to May 20, 2003 or January 2003.
[22] The tribunal noted Mrs. Khan "said, at the hearing, that the person who filled out her POE forms had made mistakes and that she had to be taken to an hospital because she was due to give birth."
Analysis
[23] It is trite law that credibility findings made by a panel of the Refugee Protection Division are findings of fact which this Court can interfere with only if the tribunal based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it. This standard is provided for in paragraph 18.1(4)(d) of the Federal Courts Act ,a standard akin to patent unreasonableness (see C.U.P.W. v. Healy 2003 FCA 380).
[24] The approach to be taken by an applications judge reviewing findings of fact of an administrative tribunal such as the Refugee Protection Division has been extensively commented upon. I refer to some well-known cases.
[25] The first one is the Federal Court of Appeal's decision in Aguebor v. The Minister of Employment and Immigration (1993) 160 N.R. 315 at paragraph 4 where Justice Décary expresses himself as follows:
¶ 4 There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden.
[26] The second case is the Supreme Court of Canada's decision in Canadian Union of Public Employees, Local 301 v. Montreal (City) [1997] 1 S.C.R. 793 at paragraph 85 where Justice L'Heureux-Dubé writes as follows:
¶ 85 We must remember that the standard of review on the factual findings of an administrative tribunal is an extremely deferent one: [1996] 1 S.C.R. 825=">Ross v. New Brunswick School District No. 15, [1996] 1 S.C.R. 825, per La Forest J., at pp. 849 and 852. Courts must not revisit the facts or weigh the evidence. Only where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable. An example is the allegation in this case, viz. that there is no evidence at all for a significant element of the tribunal's decision: see Toronto Board of Education, supra, at para. 48, per Cory J.; Lester, supra, at p. 669, per McLachlin J. Such a determination may well be made without an in-depth examination of the record: [1990] 2 S.C.R. 1324=">National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, per Gonthier J., at p. 1370.
[27] I should also mention the Federal Court of Appeal's decision in Feng v. Minister of Employment and Immigration, A-1194-92, July 20, 1994 where it wrote:
"In our view, these reasons of the Board establish the kind of internal contradictions, inconsistencies and evasions which are the heartland of the discretion of triers of fact."
[28] Counsel for the applicant advanced the following arguments at the hearing.
[29] First, he argued the tribunal erred in its credibility findings because it did not consider all of the evidence and, in particular, did not consider the documentary evidence on country conditions in Pakistan and specifically the documentary evidence concerning gender, domestic violence and lack of human rights in that country.
[30] Second, the tribunal did not give sufficient reasons to underpin its credibility findings. He relied on the Federal Court of Appeal's decision in Pour v. Minister of Employment and Immigration (A-655-90, May 12, 1990).
[31] Third, he states the tribunal did not consider all of the Convention grounds advanced by the applicants. He points to page 307 of the Certified Tribunal Record (CTR) where, in argument, counsel for the applicants stated "I would like to add also a reference to paragraph 203 of the UN Handbook and to the Chairpersons Guideline concerning gender-related cases."
[32] Fourth, he argues certain credibility findings of the tribunal were erroneous. He states the tribunal ignored the evidence the principal claimant sold her apartment in Karachi and signed a power of attorney at the beginning of January, 2003. He argues the tribunal ignored the evidence that original travel and other documents were lost in transit. He advances the tribunal failed to consider the father's right to Maham under American law, that the tribunal failed to confront the principal claimant about her allegation her ex-husband hit her in the stomach while pregnant.
[33] Fifth, he argues the tribunal put too much weight on the POE notes because the POE interview was interrupted when the principal claimant went into labour and no interpreter was present at the point of entry.
[34] Sixth, he argues the hearing was tainted because throughout the entire proceeding young Muhammad had to be re-called to order on numerous occasions.
[35] For the following reasons, I cannot accept counsel for the applicants' arguments. As a result this judicial review application must be dismissed.
[36] Notwithstanding Maitre Dumont's letter of April 21, 2006 to counsel for the applicants, I am not persuaded the tribunal ignored the documentary evidence on country conditions in Pakistan. Ms. Dumont is with the Legal Services Unit of the Immigration and Refugee Board, (IRB).
[37] Counsel for the applicants is correct to state the CTR of the first hearing of the applicants' refugee claims on September 4, 2004 contained as exhibits A-1 and A-2 a document known as Pakistan Assessment, April, 2003 prepared by the Home Office of the United Kingdom, a document relied upon by counsel for the applicants in this proceeding.
[38] It is also true this document is not contained in the Certified Tribunal Record, (CTR) of the second de novo hearing.
[39] However, the second tribunal, whose decision with which we are concerned, specifically addressed the issue (see pages 88 and 213 of the CTR of March 20, 2006).
[40] What had been provided the parties by letter dated August 30, 2005 from the IRB was an updated documents package/binder on country conditions in Pakistan. Those documents were also entered during the second hearing as exhibits A-1 and A-2 (see CTR, March 20, 2006 at page 89). The list of documents, page 99 of that CTR specifically refers to the Home Office's report on Pakistan dated April, 2005. The transcript of the proceedings of this CTR at page 210 indicates the presiding member ruled new exhibits A-1 and A-2 replaces the previous package of documents which were contained in the record of the proceedings of the first hearing.
[41] In any event, what counsel for the applicants relies on in the Home Office's 2003 Report on Pakistan are extracts related to Sharia law, the prevalence of domestic violence in Pakistan and generally the problems faced by women there. These extracts were not relevant to the tribunal's analysis given the credibility finding she had not been abused by her ex-husband.
[42] Pour, supra, has no application to the facts of this case. In the case before me, the tribunal rejected in clear terms the entirety of the principal claimant's testimony on the central issue of her fear of return to Pakistan.
[43] I find the tribunal did consider the Convention ground advanced by the principal applicant, namely, membership in a particular social group-battered women in Pakistan. The tribunal correctly identified the source of the principal claimant's fear (see, CTR, page 212). Moreover, the tribunal specifically considered the Chairperson's guidelines on women refugee claimants fearing gender-related persecutions. Finally, in her testimony, the principal claimant never advanced the application of Sharia law in Pakistan as a basis of her fear.
[44] I cannot accept counsel for the applicants' contention a number of the tribunal's credibility findings were flawed to the extent they were clearly irrational. In essence, what counsel for the applicants are asking me to do is to re-weigh the evidence. Having carefully read the transcript, I conclude the tribunal's credibility findings were reasonably open to it.
[45] I touch on three specific points. Neither counsel for the applicants nor the principal claimant in her testimony challenged the fact her POE interview was interrupted on January 11, 2003 and re-convened on January 21, 2003 (see CTR, pages 278 and 279). I say this because of Justice Harrington's finding at paragraph 8. The principal claimant's testimony on what happened to her original documents was confusing (see, CTR, pages 221 to 223). Thirdly, the confrontation of her testimony on her ex-husband's hitting her while she was pregnant was reasonably open to the tribunal (see, CTR, pages 233 to 235).
[46] It cannot be said the fact there was no official interpreter at POE prejudiced the applicant. She had a good grasp of English.
[47] Lastly, it is true young Muhammad disrupted the proceedings. However, there is no evidence on the record these interruptions materially affected them.
ORDER
THIS COURT ORDERS that this judicial review application is dismissed. No certified question
arises.
"Francois Lemieux"
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