Date: 20090925
Docket: IMM-674-09
Citation: 2009 FC 966
Ottawa, Ontario, September 25,
2009
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
AYSHA
HASEEN
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of
the Refugee Protection Division of the Immigration and Refugee Board of Canada
(the Board) dated January 20, 2009, wherein it was determined that the
applicant was not a Convention refugee and not a person in need of protection.
[2]
Ms.
Aysha Haseen is a 30 year old citizen of Pakistan seeking Canada’s protection
based on membership in a particular social group, her gender as a woman,
pursuant to sections 96 and 97(1)(b) of IRPA. For the reasons that follow, the
application will be dismissed.
Background
[3]
The
applicant claims to have been born to a fundamentalist Muslim family. When she
was 18 years of age (in 1996) her parents arranged for her to marry a man who
was then in his 40’s. The applicant did not want this and expressed a desire
to continue her studies. Her father, an educator, agreed to delay the marriage
until she finished her degree. After completing her undergraduate degree, she
obtained professional qualifications as an accountant and was hired by a
non-governmental organization that arranged micro loans for women.
[4]
In
2005, after confessing of her love for another man and refusing to marry the fiancé
chosen by her father, the applicant claims to have been assaulted with an iron
rod and boiling water by her brother, parents and the fiancé. According to the
applicant, her family has made it a matter of family honour and threatened to
kill her if she did not go through with the marriage.
[5]
The
applicant claims that she went to the police on three occasions but her
complaint was dismissed as not serious. According to the applicant, a family
member had gone to the police and paid a bribe to prevent them from assisting
her.
[6]
In
2006, the applicant was nominated to attend a conference in Halifax. She
obtained a visa for that purpose. Upon arriving in Canada, she travelled to Toronto and made a
claim for protection. In 2007, she married another Pakistani man in Canada, who,
tragically, died a few weeks later from a brain tumour. Her husband’s family
in blames her for the death and wants nothing to do with her. She fears
returning to Pakistan as an
unaccompanied woman without the support of either her own family or that of her
deceased husband.
Decision Under Review
[7]
The
Board concluded that the applicant was neither a Convention refugee nor a
person in need of protection. On a balance of probabilities, the Board
concluded that the applicant did not have a well-founded fear of persecution
for a Convention ground in Pakistan. The determinative
issue in regard to Ms. Haseen’s claim was a lack of credibility.
[8]
The
Board drew negative inferences from the applicant’s explanation of her parent’s
behaviour when she obtained identity documents, including a driver’s license
and passport, bearing photographs of her without a hijab or head-scarf. The
Board found it implausible that the applicant obtained these documents with her
mother’s assistance and that the father merely scolded her for appearing in the
photographs without a head covering. The Board considered that the
applicant displayed confidence and
assertiveness when she described the way she had her driver’s license picture
taken. The Board also noted that the applicant decided on her own to come to Canada, without
permission from her family.
[9]
For
those reasons, the Board found it implausible, on the balance of probabilities,
that the applicant suffered “physical abuse and inhumane treatment” at the
hands of a fundamentalist Muslim family. In making this finding, the member
took the Board’s Gender Guidelines into consideration. Consequently, the
member concluded that there was not a serious possibility that the applicant
would face persecution on the basis of her gender in Pakistan. As a
result, the applicant was determined not to be a person in need of protection.
Issues
[10]
The
sole issue is whether the tribunal erred in its assessment of the applicant’s
credibility.
Analysis
[11]
Findings
of credibility are "quintessentially findings of fact": see Dr. Q.
v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R.
226, [2003] S.C.J. No. 18 at para. 38. Since Dunsmuir v. New
Brunswick,
[2008] 1 S.C.R. 190, [2008] S.C.J. No. 9, it has been held that a Board’s decision
concerning questions of fact and credibility are reviewable upon the standard
of reasonableness: Sukhu v. Canada (Minister of
Citizenship and Immigration), 2008 FC 427, [2008] F.C.J. No. 515.
[12]
The
Board’s credibility analysis is central to its role as a trier of fact. As
such, these findings are to be given significant deference by the reviewing
Court. The Board’s credibility findings should stand unless its reasoning
process was flawed and the resulting decision falls outside the range of
possible, acceptable outcomes which are defensible in respect of the facts and
the law, Dunsmuir, above at paragraph 47.
[13]
In
a case such as this one, there might be more than one reasonable outcome. However,
as long as the process adopted by the Board and its outcome fits comfortably
with the principles of justification, transparency and intelligibility, it is
not open to a reviewing court to substitute its own view of a preferable
outcome: Canada (Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R.
339, [2009] S.C.J. No. 12 at para. 59.
[14]
The
applicant argues based on Ponniah v. Canada (Minister of
Employment and Immigration) (FCA.), 13 Imm. L.R. (2d) 241, [1991] F.C.J. No.
359, that she does not have to prove that persecution would be more likely than
not. The applicant has to establish “good grounds” or “reasonable chance”.
[15]
The
applicant relies on Attakora v. Canada (Minister of Employment and
Immigration) (FCA), 15 A.C.W.S. (3d) 344, [1989] F.C.J. No. 444 and Frimpong
v. Canada (Minister of
Employment and Immigration) (FCA), 8 Imm. L.R. (2d) 183, [1989] F.C.J. No.
441 to argue that minor or peripheral inconsistencies in her evidence should
not lead to a finding of general lack of credibility where documentary evidence
supports the plausibility of her story.
[16]
The
respondent urged the Court to distinguish the applicant’s argument from the
case at bar. In this case, it is the entire story of the applicant which was
found to be not credible and it was not a question of minor peripheral
inconsistencies. Consequently, it was reasonable for the Board to find that
there was no credible evidence of an objective fear of persecution or a risk to
her life or a risk of cruel and unusual treatment or punishment.
[17]
The
member’s credibility findings should stand because the record does not indicate
a flawed process and the decision did not fall outside the range of possible
and acceptable outcomes: Dunsmuir, above at paragraph 47.
[18]
The
Board member provided extensive reasons that resonate principles of
justification, transparency and intelligibility and it is not open to this
Court to review or substitute its own view of a preferable outcome: Khosa,
above at paragraph 59.
[19]
I
agree with the respondent’s submission that the Board’s decision should not be
subject to a microscopic analysis. This Court should read the Reasons of the
Board as a whole: Elezaj v. Canada (Minister of
Citizenship and Immigration), 2009 FC 234, [2009] F.C.J. No. 278 at
para. 5; Osaru v. Canada (Minister of Citizenship
and Immigration), 2005 FC 1656, [2005] F.C.J. No. 2109 at para. 6.
[20]
While
I might have arrived at a different conclusion, the Board had the benefit of
hearing the applicant’s evidence directly and the decision overall was within
the range of acceptable outcomes. Accordingly, I must dismiss the
application. No questions were proposed for certification.
JUDGMENT
IT IS THE JUDGMENT OF
THIS COURT that the application is dismissed. There are no questions
to certify.
“Richard G. Mosley”
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