Docket: IMM-5066-11
Citation: 2012 FC 747
Ottawa, Ontario, June 14,
2012
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
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ABDUL HAFEEZ
MOMANA HAFEEZ
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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. INTRODUCTION
[1]
The
Applicants are a husband and wife from Afghanistan who claimed
fear of persecution based on the fact that they had married against their
respective families’ will. This was particularly the case for the female
Applicant who had refused to marry the man chosen by her family. This is the
judicial review of the negative decision issued by the Immigration and Refugee
Board [IRB].
II. BACKGROUND
[2]
The
central theme in this story is the cultural norm that Afghan women are often
forced into marriages by their families and that this practice extends to a
broader age group than those in their teens and early twenties.
[3]
The
female Applicant claimed that after her father died in March 2007, her maternal
uncle, a brutal and powerful man, appointed himself as her guardian. He had
been the commander of a local militia and his son took over that position.
[4]
The
uncle suggested that the female Applicant marry his son and when she resisted,
he began to threaten her. Fearing that she would be forced to marry, she and
the male Applicant went into hiding, married in March 2009 and escaped to
Pakistan and then on to Canada.
[5]
The
Applicants claim that both families, and particularly the uncle, were
infuriated and both the uncle and some of the male Applicant’s family
threatened one or both of the Applicants. The Applicants said that Afghan
authorities could not protect them from these threats.
[6]
Although
the Applicants filed their PIF in August 2009 outlining the above as the basis
for their refugee/protection claim, approximately one month before their IRB
hearing, they added significant new grounds to their claim including
discrimination because they were Tajik and educated liberals perceived to be
pro-Western. The female Applicant added discrimination on the basis of gender.
[7]
The
IRB process included the Applicants’ testimony, principally from the female
Applicant, and post-hearing written submissions which included three letters on
the issues of educated Afghans, the treatment of women and forced marriages in Afghanistan. The letters
were from the author of the popular book “The Kite Runner”, and the
organizations “Women for Afghan Women” and the “Lawyers Union of Afghanistan”.
[8]
The
IRB’s negative decision was grounded on a) lack of credibility primarily based
on lack of corroboration; b) absence of a well-found fear largely due to lack
of credibility; and c) implausibility/possible inconsistency with documentary
evidence.
[9]
In
respect of the latter grounds for the decision, the IRB acknowledged that
arranged and forced marriages as well as honour killings occur in contemporary Afghanistan. The IRB,
however, noted the ages of the Applicants as 32 and 40 years old and that this seemed
to be a relatively advanced age for the female Applicant’s family to attempt to
control her.
[10]
On
the question of forced marriages, the IRB relied on the US Department of State
Human Rights Report and noted that the ages of forced marriage were 17-21
years. The IRB also noted that the Report refers to older women being forced
into marriage in the context of widows. The IRB’s only comment on the
post-hearing submission was that the evidence referred to women much younger
than the female Applicant.
[11]
The
IRB dealt with the new claims but also dismissed them. That aspect of the
decision is not material to this judicial review.
[12]
The
substantive issue in this judicial review is whether the IRB’s decision,
particularly as regards to fear of forced marriage, was reasonable.
III. ANALYSIS
[13]
It
is well established that conclusions by the IRB on credibility and
implausibility are factual in nature and are entitled to considerable
deference. The appropriate standard of review is reasonableness recognizing the
deference owed (Aguebor v Canada (Minister of Employment and Immigration)
(1993), 160 NR 315, 42 ACWS (3d) 886 (FCA)).
[14]
It
is also well established that while the Board does not have to refer to each
piece of evidence, the more important the evidence is, to the extent that it is
rejected, the greater the obligation to provide reasons for its rejection (Cepeda-Gutierrez
v Canada (Minister of Citizenship and Immigration), [1998] FCJ No 1425 (QL)
at para 17; Tursunbayev v Canada (Minister of Public Safety and Emergency
Preparedness), 2012 FC 504 at para 73 (available at CanLII); Sivapathasuntharam
v Canada (Minister of Citizenship and Immigration), 2012 FC 486 at para 24
(available at CanLII)). The failure to explain the rejection of important
evidence affects the reasonableness of the decision.
[15]
A
central point in the case was that older women (older being past 21 years) were
subject to the cultural norm of arranged or forced marriages. The IRB concluded
that there was no corroborating evidence that a person of the female
Applicant’s age would be pressured or forced into a marriage.
[16]
However,
the three pieces of evidence submitted post-hearing dealt in various respects
with that issue. The Lawyers Union of Afghanistan outlined that marriage
without family permission could result in death and that the situation of older
women was included in that risk. In the female Applicant’s case, her situation
changed as soon as her father died – a matter not challenged by the IRB but
which is contrary to the IRB’s conclusion that older women did not face a risk
if they married without permission.
[17]
The
post-hearing evidence addresses the practice that women follow family wishes or
face the risk of persecution and that for those over 30, the risk may be even
greater. This evidence supports the female Applicant’s claim, undermines the
IRB’s finding with respect to the absence of corroborating evidence and yet,
the rejection of that evidence goes unexplained.
[18]
The
IRB may have had good reason for not accepting that evidence but, in these
circumstances, the IRB had an obligation to explain that rejection in clear
terms. Absent a proper explanation, the decision is not reasonable.
[19]
In
concluding that this judicial review should be granted, the Court is not
suggesting that the Applicants’ case is not without difficulties.
IV. CONCLUSION
[20]
Therefore,
this judicial review will be granted, and the matter returned to the IRB for a
new determination by a different panel.
[21]
There
is no question for certification.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application for judicial
review is granted, and the matter is returned to the Immigration and Refugee
Board for a new determination by a different panel.
“Michael
L. Phelan”
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