Docket: IMM-5851-20
Citation: 2021 FC 1048
Toronto, Ontario, October 7, 2021
PRESENT: Mr. Justice Diner
| BETWEEN:
|
| MUBARAKA ARIF
|
| Applicant
|
| and
|
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
| Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
The Applicant seeks judicial review of her negative Pre-Removal Risk Assessment [PRRA] decision. In short, the Applicant claims that she fears for her life due to dishonour and shame that her divorce has brought upon her family, which has since threatened her, such that she claims returning to her native Pakistan would put her life at risk. She further asserts that in her country, single divorced women are subject to grave danger or death at worst, and cumulative discrimination that amounts to persecution at best. The PRRA Officer, taking into account the factual findings of two tribunals that previously heard her case, refused her PRRA. In this application for judicial review, she contends that refusal was tainted by both procedural unfairness and unreasonable findings. After a careful consideration of all the circumstances and submissions put before this Court, I do not agree with either assertion for the following reasons.
II.
Background
[2]
The Applicant is a 39 year old citizen of Pakistan. She arrived in Canada on August 2, 2013 as a permanent resident under the spousal sponsorship of her husband, whom she married in Pakistan in July of 2010. Within a month, she had left her husband and returned to Pakistan.
[3]
The Applicant’s husband wrote a “poison pen”
letter to Citizenship and Immigration Canada to request that the Applicant’s sponsorship be cancelled later that same month (August 2013), stating that despite sponsoring her in good faith, she did not plan to live with him as husband and wife. Shortly after the Applicant’s departure, he initiated divorce proceedings in the Ontario Superior Court.
[4]
After residing in Pakistan for approximately two years, the Applicant applied for a travel document in July 2015 and re-entered Canada that September. In November 2015, an investigation into marriage of convenience was conducted, the Applicant was reported for misrepresenting the nature of her relationship with her sponsor, and her case was referred to the Immigration Division [ID] of the Immigration and Refugee Board [IRB] for an admissibility hearing. The Applicant was found to be inadmissible to Canada pursuant to section 40(1)(a) of the Immigration and Refugee Protection Act, SC 2001, c-27 [IRPA]. On July 17, 2017 an Exclusion removal order was issued by the ID and the Applicant lost her permanent resident status in Canada.
[5]
The Applicant appealed her removal order and was subsequently heard by the Immigration Appeal Division [IAD] which rendered a decision on June 20, 2019 [IAD Decision], dismissing the Applicant’s appeal. The IAD found that the Applicant was not a credible witness and that evidence suggested she used her sponsor to obtain permanent residency, that her marriage was one of convenience for immigration purposes, and that she was not truthful during her appeal.
[6]
The IAD considered, amongst various other facts, the Applicant’s 2015 travel document application in which she stated that she returned to Pakistan with the consent of her husband to work there and that she was returning to Canada to be with him (I note that her travel document application to return to Canada stated that she was returning to his residence).
[7]
The IAD considered this highly problematic, given her subsequent submissions that she was fleeing an abusive situation and that she had not communicated with her husband in two years, and given the IAD’s finding that she had been served with divorce proceedings during her two year stay in Pakistan.
[8]
The IAD rejected the appeal on July 24, 2019 and as a result, the Applicant once again became removal-ready with a valid exclusion order. There is no indication that the Applicant challenged the IAD’s decision, which counsel at the judicial review hearing also confirmed to be their understanding.
[9]
On August 8, 2019 the Applicant submitted her PRRA with affidavits from her mother, her sister, her cousin and a lawyer from Pakistan, in addition to newspaper notices, various education and identification documents and country documentation, and submissions from her counsel. She did not submit any personal statement or Affidavit in support of the PRRA.
[10]
Her then-counsel explained she would face social stigma as a divorced Pakistani woman and would be at great risk of persecution and an honour killing by her family. He stated that she had a Muslim boyfriend in Canada and that interfaith marriage would bring shame and increase her risk of being attacked by her family or the community at large. She maintained that she was not aware of the divorce while in Pakistan, that she resided for 2 years with her parents from 2013-2015, but did not fully explain to them what had happened in Canada, and that they accepted her back at that time. However, she alleged that support had since changed.
III.
PRRA Decision under Review
[11]
On April 30, 2020, in a very detailed decision, the Officer rejected the Applicant’s PRRA Application based on a determination she would not be subject to a risk of persecution or to her life under sections 96 or 97 of the IRPA if she returned to Pakistan. The Officer summarized and analysed each of the affidavits submitted in support of the Application. In particular, the Officer noted that the mother’s affidavit detailed the family’s strong Christian beliefs, and that having learned of the divorce after the Applicant’s return to Canada in 2015, which brought shame to the family, she and her husband had disowned the Applicant, and her husband had threatened to kill her to salvage their honour.
[12]
The Officer noted that the affidavit of the Applicant’s sister provided similar details, including that she overheard the Applicant’s father threaten to kill the Applicant, that he had put notices in the newspaper disowning her, and that the Applicant had brought shame to the family. In addition, the sister claimed the Applicant’s brother-in-law’s reputation had been affected and that he had threatened that no matter where the Applicant went in Pakistan, she would live with the consequences.
[13]
The Officer noted that the Applicant faced no issues when she returned to Pakistan from October 2016 to March 2017 just before she returned to Canada for her ID admissibility hearing, at which she testified that there, she was “very comfortable with my lifestyle; I have money, I have food, I have a car, I have the people who treated me very well, they respect me well. I’m around the educated people and they respect me a lot”
. The Officer also noted that in her subsequent application to the IAD, she did not advance any concerns about her family, and that in her PRRA Application, she provided no comments about this 5 month stay in Pakistan.
[14]
The Officer found it was thus reasonable to believe the Applicant was accepted and well treated by her family even after they learned of her divorce. The Officer also concluded that the August 2019 affidavits written by the Applicant’s family to stop her removal to Pakistan, which were the first indication that the Applicant had experienced threats, were not written by objective, disinterested third parties, and were self-serving given the (pre-removal) timing. The Officer attributed them little weight, concluding they were insufficient to set out a risk of persecution by her family and community upon her return to Pakistan.
[15]
Similarly, the Officer concluded that objective country documentary evidence noted problems for divorced women including social stigma and risk from their families and society that could result in honour killings, and accepted that such discrimination and violence was still taking place in certain parts of the country. However, the Officer also commented that in large urban areas, women could participate in society, access services and travel without chaperones, and that societal discrimination against women was not sufficiently serious to reach the threshold of persecution, particularly for those from higher socio-economic backgrounds.
[16]
The Officer then considered the Applicant’s subjective personal and family background, membership in a particular social group, and her personal experiences. The Officer noted that the Applicant had lived almost exclusively in the densely populated Twin cities metropolitan area (Rawalpindi-Islamabad), where she had also completed her education, including graduate studies, and been employed there with a salary and housing allowances.
[17]
The Officer highlighted the lack of any family trouble reported during her 2013-2015 and 2016-2017 stays, and the good life she described there including when her family was aware of her divorce. The Officer therefore gave little weight to allegations of a risk of honour killing by the Applicant’s father, finding it to be self-serving given the timing, and that the Applicant’s profile did not match the profile of women described in the country documentation.
[18]
As for the risks associated with interfaith marriage, the Officer noted that references to her Muslim boyfriend were vague and unsubstantiated with any details as to their relationship or plans to marry or return to Pakistan together. Further, the Officer noted the threat from the Applicant’s brother-in-law came not directly but through the sister’s affidavit which the Officer found had been prepared for immigration purposes, and that the supposed “consequences”
she would suffer were ambiguous. The Officer gave little weight to the claim that the Applicant’s relationship would expose her to being attacked by family, citing an insufficiency of evidence.
[19]
Turning to the notices that the Applicant was disowned, and the claim that the Applicant was at further risk of violence from her father, the Officer acknowledged the particular difficulties for women in Pakistan and the well-documented cases of domestic violence and insufficient police assistance to victims. The Officer noted that the state had improved its measures to assist women in the Applicant’s position, including steps to protect the rights of women, such as introducing legislation to combat violence against women, establishing women’s police stations staffed with female police in the Applicant’s home province of Punjab, and establishing shelters and services available for women victims of violence. In the Officer’s view, though deficiencies remain with state protection measures in certain parts of Pakistan, they were improving in urban centres and were being addressed by the government.
[20]
The Officer noted that the Applicant had not provided any evidence of instances where she had sought and been denied protection, and that her arguments were based solely on country conditions and not on her personal experiences.
IV.
Issues and Analysis
[21]
The Applicant raises two issues in this judicial review - reasonability and procedural fairness of the PRRA refusal.
[22]
The Applicant raises three grounds in support of her argument that the Officer’s decision was unreasonable, alleging that the Officer erred by 1) finding the Applicant’s family knew of her divorce since 2015; 2) unreasonably assessing the Applicant’s risk by giving little weight to affidavits because they were self-serving; and, 3) unreasonably analyzing the state protection question.
[23]
As for procedural unfairness, the Applicant contends that the Officer made veiled credibility findings.
[24]
The parties agree that reasonableness is the presumptive standard of review that applies to an immigration officer’s decision on a PRRA application. The Supreme Court of Canada’s recent decision in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov], which set out a revised framework to determine the standard of review, provides no reason to depart from the reasonableness standard followed in previous case law: Subramaniam v. Canada (Citizenship and Immigration), 2020 FCA 202, at para 17; Jystina v. Canada (Citizenship and Immigration), 2020 FC 912 [Jystina], at para 16.
[25]
A court performing a reasonableness review scrutinizes the decision maker’s decision in search of the hallmarks of reasonableness – justification, transparency and intelligibility – to determine whether it is justified in relation to the relevant factual and legal constraints that brought the decision to bear. Both the outcome and the reasoning process must be reasonable and the decision must be based on an internally coherent and rational chain of analysis, justified in relation to the facts and the law: Vavilov, at paras 99, 83-85 respectively.
[26]
On the procedural fairness point, like in Jystina, at paras 18-20, where the Court commented on the issue of veiled credibility findings, I do not find that to have been the case here. Rather, the Officer found that the Applicant had provided insufficient evidence to establish the risk that she claimed. I agree with that assessment, and for reasons that I will explain below, the Officer reasonably interpreted both the evidence and the legislation that led to a determination on the written submissions, without any need for an oral hearing.
1)
Family’s Knowledge of the Divorce
[27]
The Applicant argues it was unreasonable for the Officer to conclude from the evidence that the Applicant’s family learned of her divorce in 2015. According to the Applicant, the Officer’s finding is a material mischaracterization of the facts, since the Officer went on to give little weight to the Applicant’s arguments that she faces persecution at the hands of her family as a divorced woman. According to the Applicant, her counsel’s submissions in the PRRA application suggest that the Applicant and her family learned of her divorce after 2017, and that neither she nor her family was aware of the divorce when she returned to Pakistan in 2016/2017.
[28]
I am unpersuaded by the Applicant’s position. Her suggestions directly contradict both the mother’s affidavit, and the IAD’s findings of fact, on which the Officer relied, that the Applicant learned of her divorce when she was served papers in Pakistan after she returned there in 2013. As such it is immaterial that her PRRA counsel suggested both the Applicant and her family were unaware of the divorce until at least 2017. Absent evidence of the facts, the Officer could not rely on bald assertions in the Applicant’s submissions, without any evidence from the Applicant herself by way of her own Affidavit or statement to back these up.
[29]
Second, a plain reading of the mother’s August 2019 affidavit, on which the Officer presumably relied, could reasonably suggest that the family learned of the divorce in 2015:
Mubaraka returned to Canada in 2015 hoping to reconcile with her husband. During her stay in Canada, she learned that he had in fact divorced her. She told us that she was unaware of this divorce and had been hoping to reconcile with her husband when she returned to Canada.
Now that my daughter has returned, she has brought with her a terrible social stigma, such that neither I nor my husband wants her to be a part of the family.
[emphasis added]
[30]
While missing dates that would provide some clarity to the deposition, the Affiant (mother) is thus stating here that her daughter, the Applicant, returned to Canada in 2015 and learned of her divorce during that stay there, which she informed her family about. I find that the Officer reasonably read the Affidavit to state that that the family knew of the divorce as early as 2015, and certainly before her return to Pakistan in 2016/2017; there was no mischaracterization of the evidence.
2)
Assessment of the evidence
[31]
The Applicant argues that by characterizing the affidavits from the Applicant’s sister and mother as “self-serving”
and dismissing their probative value, the Officer unreasonably failed to engage with meaningful evidence, including the other affidavits and corroborating news clippings. Further, she argues that the Officer’s conclusion on the mother and sister’s affidavits were unreasonable given his finding that the family had a good relationship prior to August 2019. She asserts that the family relationship, and their view of her, changed at the time.
[32]
The Applicant also submits that the Officer’s findings of (i) a lack of repetition of the family’s threats since 2019, and (ii) her failure to provide her own account of those risks in the form of a statement, were unintelligible and unclear. Since she has not returned to Pakistan, she argues that there was no reason for her family to have repeated their threats. As for her statement, she argues it would have been futile given the Officer’s findings that the risks themselves are self-serving.
[33]
The Applicant relies on Rahman v. Canada (Citizenship and Immigration), 2019 FC 941 [Rahman], at paras 22-29, in which Justice Walker found that an Officer had unreasonably discounted letters solely because they were submitted by self-interested parties, and that the failure to assess the substance of the letters was a reviewable error. The Applicant also relies on an excerpt of Magonza v. Canada (Citizenship and Immigration), 2019 FC 14 [Magonza], at para 44, cited by Justice Walker in Rahman. There, Justice Grammond noted that while decision-makers can take self-interest into account, to entirely dismiss the statements of friends and family members, often the principle witnesses to incidents of persecution, for the sole reason that they are self-interested, is a reviewable error.
[34]
Again, I cannot agree that the Officer arrived at any unreasonable conclusion. The Officer neither dismissed the affidavits as having no probative value, nor failed to engage with their contents – or for that matter, any of the other evidence presented. To the contrary, the Officer began by detailing all the relevant contents of each affidavit. Furthermore, the affidavits were not dismissed as having no probative value. Rather, although they were ultimately attributed little weight, they were accepted and he relied on them nonetheless to explain why there were internal contradictions to the PRRA counsel’s submissions.
[35]
Unlike in Rahman and Magonza, the Applicant mischaracterizes the finding as a rejection of the evidence based solely on evidence from family members as being “self-serving”
. Here the Officer explained various reasons why the Affidavits only attracted limited weight, including the timing of them, along with contradictions with the other evidence, including the fact that she had returned in 2016-2017 after knowledge of the divorce and had a very positive experience without any problems, as reported to the ID.
[36]
The same applies to the Applicant’s testimony before the IAD, which restricted the hardship of leaving Canada to problems with her Muslim boyfriend, establishment in Canada, and the hardship of being a single woman in Pakistan. Nothing was mentioned about any family hardship, let alone a disownment and death threat, even though the IAD decision was pending until just before these alleged events arose, and the Applicant had ample time to submit evidence of the family hardship she claims in her PRRA to the tribunal that made a ruling on that issue for which she made other submissions.
[37]
Third, the Officer’s findings that these threats constituted a single occurrence, that they came indirectly via third parties, and that they were uncorroborated by any statement or testimony from the Applicant, who was in the best possible position to shed light on her own subjective assessment of the risk of persecution by her family - particularly after having spent months with them in Pakistan as a divorced woman - is an entirely reasonable assessment of the evidence.
3)
State protection
[38]
The Applicant argues that the Officer failed to meaningfully engage with the objective country conditions evidence submitted by her PRRA application counsel. In support of her argument, the Applicant summarizes a series of observations gleaned from the evidence that was before the Officer, and criticizes several instances where the Officer is alleged to have failed to “grapple, balance, and assess the evidence in its entirety”
. Further, the Applicant submits that the Officer ‘cherry picked’ selective portions of the evidence and is not entitled to benefit from the legal presumption that they weighed and considered all the evidence when they fail to meaningfully analyze evidence contrary to their findings, citing Babai v. Canada (Minister of Citizenship and Immigration), 2004 FC 1341, at paras 35-36.
[39]
The Applicant also argues that the Officer failed to apply the proper test for assessing the availability of state protection, whereby state protection must be operationally effective. In support, the Applicant relies on Mata v. Canada (Immigration, Refugees and Citizenship), 2017 FC 1007 [Mata], at paras 11-13 and Hercegi v. Canada (Citizenship and Immigration), 2012 FC 250, at para 5. In Mata, the Court explained that while there is a presumption that a state can protect its citizens, the Applicant can rebut this presumption with clear and convincing evidence that they are unable to obtain state protection, or unable or unwilling to seek it out because of a well founded fear of persecution. In assessing operational effectiveness, ‘best efforts’ or intentions do not suffice.
[40]
After having reviewed the Officer’s decision and all evidence presented, I am not persuaded that either of the claimed errors were made. The Officer provided an explanation of the deficiencies in some areas in Pakistan in the protection of single women, but provided several examples of effective changes that were taking place in urban areas including the Twin cities area in which the Applicant lived. The Officer also took the Applicant’s background, (Christian) religion, education and socioeconomic circumstances into account in his assessment.
[41]
The Officer also reasonably pointed out that the Applicant provided no past instance of discrimination as a single, divorced woman in Pakistan, or any efforts to seek out assistance from the available state agencies that catered to women who felt threatened, including women’s police stations (staffed by female police officers), shelters and a variety of other services made available to women in crisis and victims of violence.
4)
Oral Hearing
[42]
On the supposed question of procedural fairness, the Applicant argues that the Officer made veiled credibility findings on the evidence submitted, and that by failing to apprise her of these concerns and allow her a meaningful opportunity to respond, breached her right to procedural fairness. The Applicant argues that she has never had her risk assessed, and thus should have at been convoked for a hearing, or at minimum, that the officer should have called her to provide the opportunity to address his concerns.
[43]
The Applicant also submits that the Officer rejected the application because he doubted the credibility of the Applicant’s risk in a return scenario. In support, the Applicant relies on Ahmed v. Canada (Citizenship and Immigration), 2018 FC 1207, at paras 31, 33, where this Court found that the reasons for an officer’s refusal of an application were only comprehensible if the officer had doubts related to the credibility of the Applicant with respect to the veracity of statutory declarations that if taken as fact would justify allowing the application.
[44]
As noted Jystina, at para 22, the line between findings of insufficient evidence and veiled credibility can be a difficult one to decipher on occasion, because an officer may veil credibility determinations under the moniker of insufficient evidence. The converse is not necessarily true, as evidence can be deficient and thus unpersuasive to prove facts asserted, without commenting on the veracity of the applicant or her story (see also Mamand v. Canada (Citizenship and Immigration), 2021 FC 818, at para 23; Ferguson v Canada (Citizenship and Immigration), 2008 FC 1067, at paras 4, 27).
[45]
In this case, the line separating credibility from evidence was clearly identified by the adjudicating body: the two prior tribunals found the Applicant lacked credibility, as explained by the Officer. However, as to the PRRA itself, the Officer found the Applicant lacked evidence. The Officer pointed out where both the ID and IAD disbelieved the Applicant, finding her narrative and testimony both inconsistent and implausible. While the Officer summarized the findings of those tribunals in the PRRA Decision as detailed above, neither they nor their credibility issues determined its outcome.
[46]
These facts fundamentally differ from those in Ahmed. Here, Ms. Arif tendered no statement and submitted no affidavit, choosing instead to rely entirely on an application consisting of documentary evidence and statements made by third parties. As such, the Officer did not question any statement of hers in the PRRA.
[47]
As to the Applicant’s arguments regarding the opportunity to respond without having had a previous risk assessment hearing, I acknowledged to the Applicant’s able counsel at the hearing, that those circumstances certainly can and do arise - for instance in Abusaninah v. Canada (Citizenship and Immigration), 2015 FC 234, at para 57. Once again however, those facts differ from the present case, as Mr. Abusaninah provided his own Affidavit and significant corroborating evidence, at para 61. In this case, the Applicant, who was represented by counsel and would have been advised that a hearing on a PRRA is not the norm, did not provide her own statement; it was her responsibility to put her best foot forward and to provide objective evidence to support her allegations: Ikeji v. Canada (Citizenship and Immigration), 2016 FC 1422, at para 47; Jystina, at para 14; Bahar v. Canada (Citizenship and Immigration), 2019 FC 1640, at para 18.
[48]
The legislation giving rise to oral PRRA hearings requires as part of its tripartite test “evidence that raises a serious issue of the applicant’s credibility and is related to the factors set out in sections 96 and 97”
. In my view, an Applicant cannot at once choose to remain silent and then complain that she was not heard; here, the Officer reasonably explained why the scant evidence supported neither of the s. 96 nor 97 risks alleged. No procedural breach thus arose.
V.
Conclusion
[49]
The Officer’s conclusions were based on the totality of the circumstances, the Applicant’s own previous testimony before the Boards, and the noted absence thereof in support of the PRRA. I find all of these observations and conclusions to have been justifiable, intelligible and transparent and thus well within the bounds of reasonableness. I will accordingly dismiss the Application.
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