Date: 20050128
Docket: IMM-4286-04
Citation: 2005 FC 139
Montréal, Quebec, this 28th day of January, 2005
PRESENT: THE HONOURABLE MR. JUSTICE HARRINGTON
BETWEEN:
RUKHSANA KHAN
MUHAMMAD KHAN
et
MAHAM KHAN
demandeurs
et
MINISTRE DE LA CITOYENNETÉ
ET DE L'IMMIGRATION
défenderesse
[1] Rukhsana Khan, together with her children, seeks refugee status in Canada. She alleges that she has a well-founded fear of persecution as a result of her membership in a particular social group, battered women, and is unable or, by reason of that fear, unwilling to avail herself of the protection of her homeland, Pakistan. She also alleges that she is a person in need of protection, the whole in accordance with sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c. 27.
[2] This is the judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board, which determined that the claimants are neither Convention refugees nor in need of protection.
[3] The Board member decided on the grounds of credibility. Issues of credibility are issues of fact and the Board is owed considerable deference. Indeed, the decision should not be set aside unless is it patently unreasonable. As Iacobucci J. said in Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at page 269:
...[a] patently unreasonable defect, once identified, can be explained simply and easily, leaving no real possibility of doubting that the decision is defective.
[4] It is conceded by the Minister that there are a number of factual errors, but it is submitted that they were not relevant to the outcome of the decision.
[5] There are two main bases for Mrs. Khan's claim. The first that she is a battered wife and the second relates to the custody of her children, particularly the first two.
[6] The Board said that her Personal Information Form (PIF) was defective as regards details of foreign trips, and that even if not central to the claim, sullied her credibility. For example, she failed to mention trips made in 1994 and 1995. However, these trips could hardly be pertinent as they took place before she was married. She was also criticized for failing to mention that she had come to Canada with her husband in December 2001, where she remained in her hotel room for a week. This trip simply did not take place. She was not here. Her husband was not here.
[7] She was criticized for failing to mention upon her arrival in Canada on the 11th of January 2003 that her husband had the intention of kidnapping her children. However, the agent noted that the interview was incomplete, because she was pregnant and had to be rushed to hospital (where she gave birth to her third child).
[8] The Board member forgave her for this omission but chastised her because she again failed to mention the kidnapping when the interview reconvened on the 21st of January. The fact is that the interview did not reconvene 21st January or at any other time. The threat of kidnapping was mentioned in her Personal Information Form.
[9] Although there are disturbing elements in the case, it is simply impossible to follow the Minister's submission that these errors were not relevant. Her credibility was challenged because she failed to mention a visit to Montreal which never took place and the Board simply refused to believe that Mrs. Khan believed her husband could kidnap the children, based on what she did not say at a meeting which was not held.
[10] Counsel for Mrs. Khan suggested that a certified question could be submitted to the Court of Appeal arising from the fact that the Immigration agent who first interviewed Mrs. Khan telephoned her husband in Pakistan. In the circumstances it is not necessary to consider this issue and so no question is certified.
ORDER
The application for judicial review of the decision rendered 19 March 2004 by the Immigration and Refugee Protection Board in its files nos. MA3-00320, MA3-00321 and MA3-00322 is granted, and the matter referred back to a differently constituted panel for redetermination.
"Sean Harrington"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4286-04
STYLE OF CAUSE: RUKHSANA KHAN,
MUHAMMAD KHAN et
MAHAM KHAN
ET
MINISTRE DE LA CITOYENNETÉ
ET DE L'IMMIGRATION
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: JANUARY 26, 2005
REASONS FOR ORDER
AND ORDER : HARRINGTON J.
DATED: JANUARY 28, 2005
APPEARANCES:
Michel Le Brun FOR APPLICANTS
Simone Truong FOR RESPONDENT
SOLICITORS OF RECORD:
Michel Le Brun
LaSalle, Quebec FOR APPLICANTS
John H. Sims, Q.C.
Deputy Attorney General of Canada FOR RESPONDENT
Montréal, Quebec