Docket:
IMM-1263-13
Citation: 2014 FC 167
Toronto, Ontario, February 21, 2014
PRESENT: The Honourable Mr. Justice Zinn
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BETWEEN:
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MAHNAZ GUL DURRANI
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Applicant
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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
[1]
Notwithstanding counsel’s submission, I remain
unconvinced that Newfoundland and Labrador Nurses’ Union v Newfoundland and
Labrador (Treasury Board), 2011 SCC 62 [NL Nurses] permits the Court
to scour the record for evidence, not otherwise referenced by the Member, to
support the end result that was reached. Such an approach, in my view, is
inappropriate where the result reached was based on material and significant errors
of fact and law. The Minister, is asking this Court to uphold the decision
based on an entire rewriting of the Board’s reasons. That approach, in my view
usurps and conflates the roles of the Board and of this Court as directed by
Parliament in the relevant legislation. Moreover, it is expressly stated by
the Supreme Court in NL Nurses at paragraph 15 to be inappropriate:
In assessing whether
the decision is reasonable in light of the outcome and the reasons, courts must
show "respect for the decision-making process of adjudicative bodies with
regard to both the facts and the law" (Dunsmuir, at para. 48). This
means that courts should not substitute their own reasons, but they may, if
they find it necessary, look to the record for the purpose of assessing the
reasonableness of the outcome. (emphasis added)
[2]
Ms. Mahnaz Gul Durrani is a citizen of Pakistan. She is educated and
works as an IT consultant. When she was a child, her family arranged her
engagement to marry one of her distant cousins, Sirdar Ali Khan. When she
became an adult, she refused to marry him because he was vulgar and uneducated,
already had three wives, and she did not want to be confined to the small
village where he lived, unable to work. When her father and uncle passed away,
Mr. Khan began threatening her and as her refusal was seen as a personal
slight, he refused to allow her to marry anyone else.
[3]
She moved to a town just outside of Atlanta, Georgia, to escape the
harassment. There, she encountered relatives and friends of Mr. Khan’s family
who harassed and mistreated her. She moved to Stockton, California at some
point, although it is not clear whether it was for work, to escape Mr. Khan’s
relatives, or for some other reason. She fled to Calgary in May 2011 on a
visitor’s visa, staying with her brother until his wife pressured him to make
her leave. She ultimately traveled to Mississauga. Her work visa for the U.S. expired in September 2011. She made her claim for refugee protection on November 15,
2011. Her visitor’s visa for Canada expired on November 27, 2011.
[4]
The Board Member states that the “determinative
issues in this case are credibility, including subjective fear and
whether her fear of persecution has objective basis in Pakistan” (emphasis added). I emphasize the word “including” in the statement quoted
because it is clear on reading the decision that the fundamental finding was
the finding of Ms. Durrani’s lack of credibility from which the other findings
flowed.
[5]
The Member’s determination that Ms. Durrani
lacked credibility rests entirely on the fact that the Member was not convinced
that Sirdar Ali Khan existed, notwithstanding Ms. Durrani’s sworn evidence that
he was the agent of persecution. The Member writes that he “expected to see
documentary evidence about the existence of Sirdar Ali Khan” and that without such,
he “is not persuaded to believe that a person called Sirdar Ali Khan exists in
Pakistan and, as a result, the panel disbelieves that the claimant was engaged
to him as alleged.”
[6]
By insisting that the Applicant produce
documentary evidence to support her sworn testimony in the absence of any
finding that her evidence was contradictory, inconsistent, or implausible, the
Member breached the long-standing principle that a claimant’s evidence is
presumed to be true unless there is a valid reason to doubt its truthfulness
and that no corroboration is required absent such valid reason: See, among
many other authorities, Maldonado v Canada (Minister of Employment and
Immigration), [1980] 2 FC 302, Ahortar v Canada (Minister of Employment
and Immigration) (1993), 65 FTR 137, King v Canada (Minister of Citizenship
and Immigration), 2003 FC 1120, Miral v Canada (Minister of Citizenship
and Immigration) (1999), 161 FTR 2013, Chekroun v Canada (Minister of
Citizenship and Immigration), 2013 FC 738.
[7]
Furthermore, the Member discounted affidavits
provided by family members in Pakistan because “they have an interest in the
outcome of the claimant’s refugee claim in Canada.” The Member also noted that
none of these three affidavits stated the name of the Applicant’s fiancé;
although the Court notes that they were in full accord with the Applicant’s
testimony about being engaged and refusing to marry the man for the reasons
expressed by the Applicant. They also supported her evidence about the
treatment the jilted man imposed on her. In so doing, the Member breached the
well-established principles that evidence is not to be rejected merely because
it comes from a family member and it is not to be rejected for what it does not
say but considered for what it does say: See among many others, Pantas v
Canada (Minister of Citizenship and Immigration), 2005 FC 64, Aslan v
Canada (Minister of Citizenship and Immigration), 2013 FC 252, Ndjizera
v Canada (Minister of Citizenship and Immigration), 2013 FC 601, Coitinho
v Canada (Minister of Citizenship and Immigration), 2004 FC 1037, Kosta
v Canada (Minister of Citizenship and Immigration), 2005 FC 994.
[8]
Given that: (1) the Applicant’s testimony is
presumed to be true; (2) she provided documents which corroborated (and did not
contradict) her own testimony; and (3) corroborative documentary evidence
cannot be discounted simply because it comes from interested parties, it was an
error for the Member to draw a negative inference as to the Applicant’s
credibility because she did not provide documentary evidence specifically
naming her fiancé.
[9]
For these reasons the decision is set aside.
Neither party proposed a question for certification.
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