Date: 20070322
Docket: IMM-2367-06
Citation: 2007 FC 303
Ottawa, Ontario, March 22, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
FATIMA
GHULAM
Applicant(s)
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent(s)
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review by Fatima Ghulam concerning a decision
rendered by the Refugee Protection Division of the Immigration and Refugee
Board (Board) on March 28, 2006 following its hearing on August 5, 2005 and concluding
on January 20, 2006.
Background
[2]
Ms.
Ghulam came to Canada from Pakistan in late 2004 as a
visitor but she sought refugee status shortly after her arrival. She had
earlier come to Canada in 1999 to visit her daughter but returned to Pakistan in 2000.
She had also visited her son in the United Kingdom in 2004 but returned to
Pakistan after
feeling somewhat unwelcome there.
[3]
Ms.
Ghulam’s claim to refugee protection was based upon allegations of
long-standing spousal abuse which she had abided for many years. Her
situation, though, became intolerable after her husband took a second and much
younger wife. Ms. Ghulam then claimed to have been victimized by her husband
and the second wife who, she said, were motivated to secure ownership of a
property for which she held the title.
[4]
The
Board rejected Ms. Ghulam’s protection claim on the basis of a lack of
credibility. It based its adverse credibility finding on a small number of
perceived testimonial weaknesses, on her delay in leaving Pakistan and on a
finding of reavailment to Pakistan in 2000.
Issues
[5]
a. What
is the appropriate standard of review for the issues raised by the Applicant?
b. Did
the Board commit any reviewable errors in its decision to reject the
Applicant’s claim to protection?
Analysis
[6]
It
is well established that a credibility finding by the Board can only be set
aside if it is found to be patently unreasonable: see Offei v. Canada (Minister
of Citizenship and Immigration), [2005] F.C.J. No. 2000, 2005 FC 1619,
especially para. 9, and Crespo v. Canada (Minister
of Citizenship and Immigration), [2005] F.C.J. No. 849, 2005 FC 672.
[7]
This
is one of the exceptional cases where the Board’s credibility assessment does
not stand up to review. Although the Board’s decision included a relatively
thorough review of the key points from Ms. Ghulam’s evidence, there were very
few instances where her testimony was actually found to be deficient or
troubling. Despite stating that it was sensitive to her testimonial frailty
and to the Gender Guidelines, the Board’s subsequent treatment of her evidence
suggests otherwise.
[8]
The
Board found Ms. Ghulam to be 66 years of age. This finding is inconsistent both
with her testimony that she believed that she was 73 and with the Board’s own
observation that she appeared to be older than 80. It was also clear that she
was illiterate and had profound difficulties in testifying with clarity. Her
Personal Information Form (PIF) indicated that she had had no formal education
of any kind. Notwithstanding these limitations, the Board’s concern about her
testimonial credibility was based on only one clearly identified exchange which
the Board found to be “vague” (an admittedly confusing series of responses to
questions about whether she had reported the spousal abuse to the police).
Much of the remainder of the Board’s decision is simply a narrative of Ms.
Ghulam’s testimony from which the Board draws no inferences or conclusions.
This can be seen in the following lengthy passage from the Board’s decision:
When the claimant was asked what her
husband’s interest is in her, since he is married, she said, “He has no
interest in me.” Further, she went on to say that he sustained a heart
attack. She was asked whether she had any contact with her husband and responded
that she did not. There is no corroborative evidence before the panel that the
claimant’s alleged husband is alive and/or remarried now, is interested in the
claimant, or would harm her in any way, other than her own testimony, which the
panel does not find credible.
She testified that they have four
children who all are residing in foreign countries. One son is in the United States, one son resides in the
United Kingdom, and one son and a daughter live in Canada. However, in the claimant’s bid for a
visa to come to Canada in 1999, the port of entry (POE) notes state that she
and her husband own three schools, that the applicant manages schools, that her
husband and 18-year-old son remain in Pakistan and that she wants to assist her
daughter in Canada because she is expecting. When this was pointed out to her,
she said she has three sons and one daughter who all live outside of Pakistan.
She testified that she is a heart
patient; however, she previously traveled to Canada and then returned to Pakistan. When asked whether she had
discussed her situation with her children at that time, she said she did. When
asked why she returned to Pakistan in 2000, she testified that
she did say that she could return to her home. When asked again, she said that
she did not want to be a burden. The panel finds that her reavailment negates
her subjective fear in Pakistan.
When the claimant was asked why she
remained with husband, she responded by saying because of her religion and her
children and because her uncles said that she had to endure the marriage.
However, she later testified that she used to leave her home and go to her
mother’s big home, where she and her sister lived in the same village, but this
was not indicated in her PIF. The claimant was asked why she could not live
there if she was able to rent a place in Pakistan. She testified that she could not work
and she could not live alone in Pakistan,
but that she did live in a large house after her mother’s death. She was also
asked why she was not able to live with her sister in Pakistan. She responded by saying that her
sister is elderly and a widower and she could not live with her. When asked
whether any health problems prevented her from working, she responded by saying
that they would snatch her property. The claimant’s concern and fear was of
the property being taken away more than anything else. She also testified that
her son from the U.K. had been for Pakistan.
During the first sitting, the claimant
did not provide any documents pertaining to the alleged property. However, in
the resumption, she presented property documents. The panel notes that the
survey was dated 2000-2001, but was obtained in 2005 and contains information
from 2001. The documents hold the claimant’s name as owner, but there is no indication
that the information is current. It appears that the record obtained in 2005,
reveals information for the years 2000-2001. The panel does not find the information
to be current and there is no corroborating evidence identifying this property
in the claimant’s name, other than the claimant’s own testimony. The panel
does not believe her.
In her POE notes, the claimant states
that she cannot return to Pakistan, “He and his wife want to
kill me, my husband. I have been treated very badly by my husband at this age
of mine. I am very frightened when I am in Pakistan.” However, there is no mention of her
property being an issue, or that she has to sign the papers, or that her
property was being snatched. This question was not directly posed to the
claimant, but her testimony centered on the property, which became an issue
after her husband’s second marriage and threats by them that they wanted to
kill her and forfeit her property.
While the above passage might represent an
implicit critique of Ms. Ghulam’s testimony, it is difficult to accept it for
that purpose in the absence of unequivocal findings and having regard to the
inherent weaknesses in the Board’s treatment of some of the evidence noted. For
instance, the Board may have concluded that Ms. Ghulam’s husband was no longer
interested in harassing her from her answer “[h]e [had] no interest in me”. In
context, however, this response seems to have been directed at his lack of
interest in her as a spouse and not as a potential source of real property. At
most the answer is ambiguous but, without a finding by the Board, one can only
speculate about its significance to the outcome, if any.
[9]
The
same can be said about the Board’s discussion concerning the differences
between Ms. Ghulam’s testimony and the Port of Entry (POE) notes. She
testified that certain references in the notes about the members of her
immediate family were erroneous but the Board made no finding one way or the
other. One is left to speculate about whether the Board relied upon those
differences in rejecting Ms. Ghulam’s testimony and, if so, why. Certainly the
evidence standing alone adds nothing to the Board’s ultimate conclusion.
[10]
The
Board also clearly erred in finding that the POE notes contained “no mention of
her property being an issue”. In fact, the POE notes expressly state the
following:
My husband beats me up and threatens me
to kill me because he wants that property from me.
[11]
The
Board’s treatment of the reavailment issue is also very weak. The Board found
that Ms. Ghulam’s return to Pakistan in 2000 negated her
subjective fear and her credibility. This issue was deserving much greater
attention than it received both because it fails to address the reasons for why
women return to abusive relationships and because Ms. Ghulam’s situation
clearly worsened after her husband’s second marriage in 2004. This evidence
was before the Board and it had an obligation to at least consider it before
concluding that Ms. Ghulam’s decision to return to Pakistan was
unreasonable and inexplicable.
[12]
The
above-noted problems with the Board’s treatment of the evidence before it falls
squarely within the concern expressed by the Federal Court of Appeal in the
decision in Hilo v. Canada (Minister of
Employment and Immigration), [1991] F.C.J. No. 228,
130 N.R. 236 where it stated:
The appellant
was the only witness who gave oral testimony before the Board. His evidence was
uncontradicted. The only comments as to his credibility are contained in the short
passage quoted supra. That passage is troublesome because of its ambiguity. It
does not amount to an outright rejection of the appellant's evidence but it
appears to cast a nebulous cloud over its reliability. In my view, the Board
was under a duty to give its reasons for casting doubt upon the appellant's
credibility in clear and unmistakable terms. The Board's credibility assessment
quoted supra is defective because it is couched in vague and general terms. The
Board concluded that the appellant's evidence lacked detail and was sometimes
inconsistent. Surely particulars of the lack of detail and of the
inconsistencies should have been provided. Likewise particulars of his
inability to answer questions should have been made available.
Conclusion
[13]
For
the reasons given above, this application is allowed. This matter shall be
remitted to a differently constituted Board for redetermination on the merits.
[14]
Neither
party proposed a certified question and no issue of general importance arises
from this decision.
JUDGMENT
THIS COURT ADJUDGES that this application is allowed with the matter to be remitted
to a differently constituted Board for redetermination on the merits.
"R. L. Barnes"
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