Date:
20071120
Docket:
IMM-1630-07
Citation:
2007 FC 1215
Ottawa,
Ontario, the 20th day of November 2007
Present: the Honourable Mr. Justice Blanchard
BETWEEN:
SAIRA GHAFFAR
Applicant
and
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS
FOR ORDER AND
ORDER
I. Introduction
[1]
This is an application for judicial review of a decision by
the Immigration and Refugee Board (the IRB) on March 29, 2007. In that
decision, the IRB concluded that the applicant did not qualify as a Convention
“refugee” or a “person in need of protection” pursuant to section 97 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the IRPA).
II. Factual background
[2]
The applicant was born on December 12, 1962, in Madi Bahauddin, in the
province of the Punjab in Pakistan, and holds the nationality of that country. Since May 10, 1990, she has been married to Abdul Ghaffar
and has three children, two sons and a daughter.
[3]
The applicant contended that she fell in love with one
Arshad and they became lovers. On December 20, 2004, the applicant’s
parents-in-law, accompanied by an Imam (Allah Rakha) saw Arshad leaving the
applicant’s house. They struck and threatened the applicant with death if she
did not change her behaviour. Although she went to see the police, they refused
to register the complaint.
[4]
On January 10, 2005, when the applicant and Arshad were
together at her home, her parents-in-law and the Imam burst in, breaking down
the door. Arshad escaped through the back door but the applicant was beaten,
accused of adultery and threatened with death. She managed to escape and found
refuge with a female friend.
[5]
On January 12, 2005, she said she learned that the Imam announced in the mosque that she and
Arshad had committed adultery and deserved to be stoned.
[6]
On January 15, according to the applicant, charges of
adultery were laid against her by the police authorities.
[7]
With the help of her brother and a travel agent, the
applicant left Pakistan and
arrived in Canada on February 11, 2005. On February 16, 2005, the applicant filed an
application for protection as a refugee on the ground that she feared being
killed by her in-laws.
[8]
The applicant went to live with her sister Qaisar, who
lives in Montréal. Qaisar is married to Tariq Harif and they have a daughter,
Tahmina. Her sister and niece hold Canadian citizenship.
[9]
On July 13, 2005, the Minister of Public Safety notified
the IRB that he wished to intervene based on the following documents:
(1) a postal seizure involving the applicant dated May 3, 2005;
(2) an undated letter of accusation concerning the
applicant from Qaisar Harif;
(3) an undated letter of accusation concerning the
applicant from Tahmina Harif.
[10]
On December 23, 2005, counsel for the applicant contacted
the IRB to tell it he had received an unsolicited letter from a Pakistani
physician, handwritten and dated December 14, 2005. The letter in question asserted
that the applicant was suffering from major depression and was under medical
care. Further, the letter stated that the applicant had [TRANSLATION] “lost
contact with reality” and suggested that a representative be appointed to
assist her. As a consequence of this evidence the IRB appointed Robert Naylor
as representative.
[11]
On August 17, 2006, counsel for the applicant asked the IRB
to summon the writers of the letters of accusation, Tahmina and Qaisar Harif,
as witnesses to explain the letters.
[12]
The hearing before the IRB was scheduled for June 21, 2006. However, the necessary summonses were
not served on the two witnesses. The hearing was adjourned and directions were
given that the summonses in question should be served.
[13]
The Board member retired and the case came before a new
member de novo on January 21, 2007. On that date, the summonses had
still not been served. The IRB decided to hear the case on that date on the
understanding that the hearing would be adjourned to allow the summonses to be
served. However, on February 8, 2007, the
IRB was informed that the individuals who were the subject of the summonses no
longer lived at the address shown in the record. Accordingly, the IRB decided
to render a decision based on the written and oral evidence submitted.
III. Impugned decision
A. Evidence
[14]
It is worth reviewing some points in the evidence before
the IRB, namely the letters from Tahmina and Qaisar Harif and the blank letters
sent by Abdul Ghaffar.
(1) Letter from Tahmina Harif
[15]
The applicant’s niece sent an (undated) letter maintaining
that the application for refugee status was fraudulent. The allegations
contained in the letter may be summarized as follows:
(1) the applicant did not commit adultery and was happy in her
marriage to Abdul Ghaffar;
(2) the applicant and Abdul Ghaffar had tried to come to Canada in the
past, but without success;
(3) the applicant falsely alleged that she had three children,
Talha, Aisha and Ammar;
(4) in October 2002 Abdul Ghaffar, through the firm of Brownstein
and Brownstein, tried to immigrate to Canada as a professional:
only Talha’s name appeared on the application; his application was denied;
(5) the applicant concocted the story of adultery;
(6) her lover
Arshad did not exist;
(7) the applicant’s son (Talha) is at present living with her
mother and brothers;
(8) the applicant bribed people in her village to ensure the
[TRANSLATION] “truth” of her story;
(9) the applicant has only one son: the names of Aisha and Ammar,
her brother’s children, were added so she could get a larger family allowance;
(10) the applicant had a hysterectomy in 1994 and so was unable to
give birth to Ammar in 1997;
(11) she forged
birth certificates for Ammar and Aisha;
(12) the applicant is planning to weep at the hearing in order to get
the IRB’s sympathy;
(13) the applicant receives an allowance, from which she keeps $300
and sends the rest to Pakistan to her husband and son.
(2) Letter from Qaisar Harif and blank letters
[16]
The letter written by Qaisar Harif is also undated and was
sent to the Canada Border Services Agency. The letter was accompanied by the
following documents:
(1) an envelope sent by Abdul Ghaffar and addressed to Qaisar
Harif;
(2) a blank letter with the heading “Babu Muhammad
Yamin of the Advocate High Court, Dist. Courts Mandi, Bahaudinn, Legal Advisor”,
with the lawyer’s seal;
(3) a blank letter with the heading of Dr. Muhammad
Iftikar, with the doctor’s seal.
In his letter, Qaisar explained that she did not know why
she received these documents. Further, she did not want to be associated with
the refugee status application of her sister (the applicant).
B. Credibility
[17]
The IRB came to a negative conclusion on the applicant’s
credibility. First, it wondered why a woman who was charged with adultery,
whose husband was furious and wanted her dead, would try to help him in his
effort to obtain refugee status by sending him blank letters from a physician
and a lawyer? Further, if she left Pakistan secretly, how did her husband know she had left the country and was in Canada and know her postal address and telephone number?
[18]
The IRB answered these questions by concluding that the
husband sent the documents to help the applicant in her efforts to secure
recognition as a refugee, and rejected the implausible explanation of the
physician, who stated:
I hereby
confirm that I never gave any letterhead with my seal to anyone in the past. A
theft occurred in my office during March 2005, in which some of my letter pads
were also lost. Maybe my letterhead with my stamp mailed to Saira Ghaffar is
part of these stolen pads. (Emphasis added.)
[19]
The IRB found that:
(1) the applicant’s husband knew that she was living in Montréal;
(2) her husband sent her blank letters to help her
in her efforts to secure refugee status;
(3) the applicant did not commit adultery;
(4) the lawyer’s letter stating that an arrest
warrant against the applicant for adultery was a fabrication;
(5) the physician’s report was also a fabrication; and
(6) the affidavit from Khalid Mahmood (in support of
the application) was a fabrication.
[20]
The IRB also noted certain contradictions in the
applicant’s testimony regarding her children.
IV. Issues
[21]
(1) Did the panel contravene the principles of
procedural fairness and natural justice by taking the two accusations written
by the applicant’s sister and niece into account?
(2) Did the panel err in its assessment of the
evidence and its conclusions on the applicant’s credibility?
V. Standard of review
[22]
The appropriate standard of review applicable to a decision
on credibility and the relevance of evidence is patent unreasonableness (Mugesera
v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] S.C.J. No. 39, para. 38; Aguebor v. Canada (Minister
of Employment and Immigration) (1993), 160 N.R. 315, para. 4).
[23]
A significant infringement of the rules of procedural
fairness and the rules of natural justice requires intervention by the Court as
such.
VI. Analysis
[24]
The applicant contended that the panel should not have used
the accusations against the applicant sent to the IRB in support of its denial,
since the witnesses had not appeared despite the efforts made by the IRB to
secure their attendance through subpoenas.
[25]
As to the letters, the applicant maintained that the
allegations in the letters written by her sister and niece were false and
exaggerated. She stated that it was a very religious family which wanted her to
return to Pakistan to [TRANSLATION] “meet her
fate for deceiving her husband” and [TRANSLATION] “pay for her sin”. She noted
that the niece’s letter contained [TRANSLATION] “a lot of hatred and an
atmosphere of revenge” and that she [TRANSLATION] “was attacked in all aspects
of her life, in Canada and Pakistan”. Accordingly, the applicant believed [TRANSLATION] “that
the members of her sister’s family secured these false letters in order to
discredit her and told her clearly from the outset that she would have to go back
to Pakistan”.
[26]
The applicant noted that the letters were not sworn to and
had no date, and the motivation of the accusers was unknown. She maintained
that the letters in question had no evidentiary value as long as the writers
did not appear to answer counsel for the applicant’s questions under oath.
Without giving the applicant an opportunity to test this evidence, the
applicant maintained that the hearing was not fair and that the IRB made a
reviewable error by considering the said letters and giving them some
evidentiary value.
[27]
I cannot accept the applicant’s arguments. A careful
reading of the IRB decision indicates that the letters of accusation were not
conclusive, and that on the contrary it was the blank letters from a Pakistani
lawyer and physician that undermined the applicant’s credibility. At
page 15 of its decision, the IRB said the following:
This I find, is the major reason why the claimant’s overall evidence lacks
credibility and casts serious doubt on all of her evidence throughout this hearing.
There are other matters which cast doubt on her credibility as well. When I
questioned her whether her children were living with her mother or any of her
brothers in Multan as alleged in Tahmina’s letter, she replied: --“No, they
are not”. Then she stated under oath – they all live together with my brother’s
friend”. However, she contradicts her evidence in her PIF narrative wherein she
states – “My brother has made arrangements for my children to be hidden in
Multant or in any other city.” (Respondent’s emphasis.)
[28]
I concur with the respondent’s argument that the IRB’s
negative decision was based on evidence other than the letters of accusation.
The blank letters from a physician and a lawyer, supposedly sent by Abdul
Ghaffar to the applicant’s last known address, are an important factor in the
case at bar. When questioned on this point, the applicant indicated that the
documents were sent to her sister and the question should be put to her. I note
that in her arguments the applicant maintained that there was an arrest warrant
in Pakistan against her for adultery.
She further stated that she was suffering from major depression, as mentioned
in the letter from the Pakistani physician dated December 14, 2005. These two
points were important factors in her application for refugee status. I feel it
was not unreasonable for the IRB to conclude that the sending of blank sealed
letters from a physician and a lawyer could not be used for any other purpose
than to help the applicant reinforce her fraudulent claims. In its decision,
the IRB also found that the applicant’s credibility had been further undermined
by certain contradictions in her testimony.
[29]
Despite the fact that the IRB did not rely on the accusations
from the applicant’s sister and niece in dismissing the application, it would
have been justified in considering the evidentiary weight of these various
aspects of the evidence at its discretion. It should be borne in mind that the
panel is not bound by strict rules of evidence and controls its own procedure
(section 170(g) of IRPA). Extrinsic evidence may be accepted provided
the applicant is given the chance to give explanations: this was the case in
the proceeding at bar at the hearing, with regard to the letters of accusation (Edobor
v. Canada (Minister of Citizenship
and Immigration), 2007
FC 883).
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