Date:
20130125
Docket:
IMM-2644-12
Citation:
2013 FC 63
Ottawa, Ontario,
January 25, 2013
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
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FATIMA KANIZ, MAKKI AMNA,
MAKKI MAMOONA, MUHAMMAD OMER
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Applicants
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Overview
[1]
The
applicants comprise a family who arrived in Canada from Pakistan in 2006. Ms Fatima Kaniz is the mother of two daughters, Amna and Mamoona Makki, and a son,
Muhammad Omer. When they travelled from Pakistan, the family included Ms
Kaniz’s husband, Mr Raja Ali Muhammad, who is the father of Amna, Mamoona and
Muhammad Omer.
[2]
The
family claimed refugee protection based on their fear of religious persecution
in Pakistan. Their claim was dismissed by a panel of the Immigration and
Refugee Board, but a rehearing was ordered by this Court on judicial review.
[3]
In
April 2009, before the rehearing, the police were called to the family home in
response to a domestic dispute. Mr Muhammad was charged with assault, but those
charges were later withdrawn. Ms Kaniz and Mr Muhammad subsequently separated.
[4]
In
2010, Mr Muhammad informed the Board that the family’s refugee claim was bogus.
As a result, the Board separated Mr Muhammad’s claim from the rest of the
family’s. Ms Kaniz amended her personal information form (PIF) to include a
fear of abuse from Mr Muhammad. Therefore, at the second hearing, the Board had
to consider the original claim based on fear of religious persecution, as well
as the fresh allegations of domestic violence.
[5]
The
Board found, based on omissions and inconsistencies in her testimony, that Ms
Kaniz lacked credibility in all areas of her evidence. It found that she was
neither a refugee nor a person in need of protection. Since the three children
relied on Ms Kaniz’s evidence, the Board found that their claims failed as
well.
[6]
The
applicants submit that the Board erred in its credibility findings, failed to
consider the evidence in light of the Gender Guidelines, and wrongly dismissed
the claims of the children, whose applications were based on independent
evidence. They argue that the Board’s decision was unreasonable, and ask me to
quash that decision and order another hearing.
[7]
I
agree that the Board failed to give adequate attention to the claims of the
children. To that extent, I will allow this application for judicial review. I
am not persuaded, however, that the Board’s credibility findings were otherwise
unreasonable or that it failed to apply the Gender Guidelines.
[8]
The
issues are:
1. Were the
Board’s credibility findings unreasonable?
2. Did the
Board fail to apply the Gender Guidelines?
3. Did the
Board fail to consider the claims of Amna, Mamoona and Muhammad?
II. The Board’s Decision
[9]
Most
of the Board’s 25-page decision is devoted to an assessment of Ms Kaniz’s
evidence. It found more than a dozen areas where her evidence was incomplete or
contradictory. Most significantly, she failed to mention in her PIF that Mr
Muhammad was physically abusive toward her. She only mentioned verbal abuse.
She did mention physical assaults on her son, but said that her PIF would have
been too long if she had included information about her own experiences of physical
abuse.
[10]
The
Board cited many other examples of omissions and discrepancies. It also
referred to the Gender Guidelines, but still found that Ms Kaniz’s evidence was
not credible. Since the children’s claims were based mainly on Ms Kaniz’s
evidence, the Board rejected those, too.
III. First Issue – Were
the Board’s credibility findings unreasonable?
[11]
Ms
Kaniz argues that the Board unreasonably concluded that the family’s claim was
unsupported by credible evidence.
[12]
For
example, the Board discounted the evidence contained in the police report which
contained corroborating evidence of assaults by Mr Muhammad. It mentioned that
she had visible signs of bite marks. It also indicated that the Crown
prosecutor approved charges against Mr Muhammad of assault causing bodily harm,
that Muhammad Omer was hospitalized for his injuries, and that the Children’s
Aid Society had been notified. The Board also gave little weight to a report
from Sick Kids Hospital in which the author noted the abuse that Muhammad Omer
had received from his father.
[13]
In
my view, the Board’s credibility findings were not unreasonable. The police and
hospital reports simply recorded what the authors had been told; they did not
contain independent corroborative evidence. Further, those reports were
contradicted by Ms Kaniz’s testimony which, in itself, was internally
inconsistent.
IV. Second Issue – Did the
Board fail to apply the Gender Guidelines?
[14]
The
Board made a number of references to the Gender Guidelines and explained how
they had influenced its conduct. Ms Kaniz submits that the Board failed to
apply the Guidelines in that it neglected to appreciate that her husband had
withheld information about some of his actions, and that her husband’s abuse
affected her testimony.
[15]
I
can see no error in the Board’s treatment of the Gender Guidelines. It took
into account Ms Kaniz’s cultural background, treated her with sensitivity
during the hearing, and relieved her from having to provide precise details of
her experiences. The Board did not fault Ms Kaniz for her lack of knowledge; rather,
it found that her testimony was simply inconsistent in a number of areas. The
Gender Guidelines do not oblige the Board to overlook inconsistent evidence.
V. Third Issue – Did the
Board fail to consider the claims of Amna, Mamoona and Muhammad Omer?
[16]
Ms
Kaniz points out that the Board did not consider the separate evidence
supporting her children’s claims.
[17]
I
agree. Muhammad Omer testified that he fears his father and had attempted
suicide as a response to the family’s troubles at home. Mamoona and Amna
claimed that they feared being forced into arranged marriages with their Sunni
cousins in Pakistan.
[18]
The
Board made no reference to Muhammad Omer’s testimony. Nor did it refer to the
independent observations of the police who noted that Muhammad Omer had
scratches and bruises, and had to be taken to hospital after his father had
assaulted him.
[19]
The
Board did refer to Mamoona’s evidence about a fear of forced marriage, but
discounted this assertion because it was made only after the applicants’ claims
had been separated from Mr Muhammad’s. However, this was true of all of the
fresh allegations made by the applicants about their fear of Mr Muhammad. There
was no reasonable basis to dismiss Mamoona’s and Amna’s claims of fear simply
because of their timing. It was clear that new grounds for the applicants’
refugee claims could only have been raised after those claims had been
separated from Mr Muhammad’s.
VI. Conclusion and
Disposition
[20]
The
Board’s credibility findings and treatment of the Gender Guidelines were not
unreasonable on the evidence. However, the Board failed to consider separately
the claims of Muhammad Omer, Mamoona, and Amna. To that extent, I will allow
this application for judicial review. Neither party proposed a question of
general importance for me to certify, and none is stated.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The
application for judicial review is allowed in respect of the applicants
Muhammad Omer, Mamoona Makki and Amna Makki.
2. No
question of general importance arises.
“James W. O’Reilly”
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