Ottawa, Ontario, March 22, 2007
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review by Fatima Ghulam concerning a decision rendered by the Refugee Protection Division of the Immigration and Refugee Board (Board) on March 28, 2006 following its hearing on August 5, 2005 and concluding on January 20, 2006.
Background
[2] Ms. Ghulam came to Canada from Pakistan in late 2004 as a visitor but she sought refugee status shortly after her arrival. She had earlier come to Canada in 1999 to visit her daughter but returned to Pakistan in 2000. She had also visited her son in the United Kingdom in 2004 but returned to Pakistan after feeling somewhat unwelcome there.
[3] Ms. Ghulam’s claim to refugee protection was based upon allegations of long-standing spousal abuse which she had abided for many years. Her situation, though, became intolerable after her husband took a second and much younger wife. Ms. Ghulam then claimed to have been victimized by her husband and the second wife who, she said, were motivated to secure ownership of a property for which she held the title.
[4] The Board rejected Ms. Ghulam’s protection claim on the basis of a lack of credibility. It based its adverse credibility finding on a small number of perceived testimonial weaknesses, on her delay in leaving Pakistan and on a finding of reavailment to Pakistan in 2000.
Issues
[5] a. What is the appropriate standard of review for the issues raised by the Applicant?
b. Did the Board commit any reviewable errors in its decision to reject the Applicant’s claim to protection?
Analysis
[6] It is well established that a credibility finding by the Board can only be set aside if it is found to be patently unreasonable: see Offei v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 2000, 2005 FC 1619, especially para. 9, and Crespo v. Canada (Minister of Citizenship and Immigration), [2005] F.C.J. No. 849, 2005 FC 672.
[7] This is one of the exceptional cases where the Board’s credibility assessment does not stand up to review. Although the Board’s decision included a relatively thorough review of the key points from Ms. Ghulam’s evidence, there were very few instances where her testimony was actually found to be deficient or troubling. Despite stating that it was sensitive to her testimonial frailty and to the Gender Guidelines, the Board’s subsequent treatment of her evidence suggests otherwise.
[8] The Board found Ms. Ghulam to be 66 years of age. This finding is inconsistent both with her testimony that she believed that she was 73 and with the Board’s own observation that she appeared to be older than 80. It was also clear that she was illiterate and had profound difficulties in testifying with clarity. Her Personal Information Form (PIF) indicated that she had had no formal education of any kind. Notwithstanding these limitations, the Board’s concern about her testimonial credibility was based on only one clearly identified exchange which the Board found to be “vague” (an admittedly confusing series of responses to questions about whether she had reported the spousal abuse to the police). Much of the remainder of the Board’s decision is simply a narrative of Ms. Ghulam’s testimony from which the Board draws no inferences or conclusions. This can be seen in the following lengthy passage from the Board’s decision:
When the claimant was asked what her husband’s interest is in her, since he is married, she said, “He has no interest in me.” Further, she went on to say that he sustained a heart attack. She was asked whether she had any contact with her husband and responded that she did not. There is no corroborative evidence before the panel that the claimant’s alleged husband is alive and/or remarried now, is interested in the claimant, or would harm her in any way, other than her own testimony, which the panel does not find credible.
She testified that they have four children who all are residing in foreign countries. One son is in the United States, one son resides in the United Kingdom, and one son and a daughter live in Canada. However, in the claimant’s bid for a visa to come to Canada in 1999, the port of entry (POE) notes state that she and her husband own three schools, that the applicant manages schools, that her husband and 18-year-old son remain in Pakistan and that she wants to assist her daughter in Canada because she is expecting. When this was pointed out to her, she said she has three sons and one daughter who all live outside of Pakistan.
She testified that she is a heart patient; however, she previously traveled to Canada and then returned to Pakistan. When asked whether she had discussed her situation with her children at that time, she said she did. When asked why she returned to Pakistan in 2000, she testified that she did say that she could return to her home. When asked again, she said that she did not want to be a burden. The panel finds that her reavailment negates her subjective fear in Pakistan.
When the claimant was asked why she remained with husband, she responded by saying because of her religion and her children and because her uncles said that she had to endure the marriage. However, she later testified that she used to leave her home and go to her mother’s big home, where she and her sister lived in the same village, but this was not indicated in her PIF. The claimant was asked why she could not live there if she was able to rent a place in Pakistan. She testified that she could not work and she could not live alone in Pakistan, but that she did live in a large house after her mother’s death. She was also asked why she was not able to live with her sister in Pakistan. She responded by saying that her sister is elderly and a widower and she could not live with her. When asked whether any health problems prevented her from working, she responded by saying that they would snatch her property. The claimant’s concern and fear was of the property being taken away more than anything else. She also testified that her son from the U.K. had been for Pakistan.
During the first sitting, the claimant did not provide any documents pertaining to the alleged property. However, in the resumption, she presented property documents. The panel notes that the survey was dated 2000-2001, but was obtained in 2005 and contains information from 2001. The documents hold the claimant’s name as owner, but there is no indication that the information is current. It appears that the record obtained in 2005, reveals information for the years 2000-2001. The panel does not find the information to be current and there is no corroborating evidence identifying this property in the claimant’s name, other than the claimant’s own testimony. The panel does not believe her.
In her POE notes, the claimant states that she cannot return to Pakistan, “He and his wife want to kill me, my husband. I have been treated very badly by my husband at this age of mine. I am very frightened when I am in Pakistan.” However, there is no mention of her property being an issue, or that she has to sign the papers, or that her property was being snatched. This question was not directly posed to the claimant, but her testimony centered on the property, which became an issue after her husband’s second marriage and threats by them that they wanted to kill her and forfeit her property.
While the above passage might represent an implicit critique of Ms. Ghulam’s testimony, it is difficult to accept it for that purpose in the absence of unequivocal findings and having regard to the inherent weaknesses in the Board’s treatment of some of the evidence noted. For instance, the Board may have concluded that Ms. Ghulam’s husband was no longer interested in harassing her from her answer “[h]e [had] no interest in me”. In context, however, this response seems to have been directed at his lack of interest in her as a spouse and not as a potential source of real property. At most the answer is ambiguous but, without a finding by the Board, one can only speculate about its significance to the outcome, if any.
[9] The same can be said about the Board’s discussion concerning the differences between Ms. Ghulam’s testimony and the Port of Entry (POE) notes. She testified that certain references in the notes about the members of her immediate family were erroneous but the Board made no finding one way or the other. One is left to speculate about whether the Board relied upon those differences in rejecting Ms. Ghulam’s testimony and, if so, why. Certainly the evidence standing alone adds nothing to the Board’s ultimate conclusion.
[10] The Board also clearly erred in finding that the POE notes contained “no mention of her property being an issue”. In fact, the POE notes expressly state the following:
My husband beats me up and threatens me to kill me because he wants that property from me.[1]
[11] The Board’s treatment of the reavailment issue is also very weak. The Board found that Ms. Ghulam’s return to Pakistan in 2000 negated her subjective fear and her credibility. This issue was deserving much greater attention than it received both because it fails to address the reasons for why women return to abusive relationships and because Ms. Ghulam’s situation clearly worsened after her husband’s second marriage in 2004. This evidence was before the Board and it had an obligation to at least consider it before concluding that Ms. Ghulam’s decision to return to Pakistan was unreasonable and inexplicable.
[12] The above-noted problems with the Board’s treatment of the evidence before it falls squarely within the concern expressed by the Federal Court of Appeal in the decision in Hilo v. Canada (Minister of Employment and Immigration), [1991] F.C.J. No. 228, 130 N.R. 236 where it stated:
The appellant was the only witness who gave oral testimony before the Board. His evidence was uncontradicted. The only comments as to his credibility are contained in the short passage quoted supra. That passage is troublesome because of its ambiguity. It does not amount to an outright rejection of the appellant's evidence but it appears to cast a nebulous cloud over its reliability. In my view, the Board was under a duty to give its reasons for casting doubt upon the appellant's credibility in clear and unmistakable terms. The Board's credibility assessment quoted supra is defective because it is couched in vague and general terms. The Board concluded that the appellant's evidence lacked detail and was sometimes inconsistent. Surely particulars of the lack of detail and of the inconsistencies should have been provided. Likewise particulars of his inability to answer questions should have been made available.
Conclusion
[13] For the reasons given above, this application is allowed. This matter shall be remitted to a differently constituted Board for redetermination on the merits.
[14] Neither party proposed a certified question and no issue of general importance arises from this decision.
JUDGMENT
THIS COURT ADJUDGES that this application is allowed with the matter to be remitted to a differently constituted Board for redetermination on the merits.
"R. L. Barnes"
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2367-06
STYLE OF CAUSE: FATIMA GHULAM
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATON
Respondent
DATE OF HEARING: March 1, 2007
APPEARANCES:
Aviva Basman For the Respondent
SOLICITORS OF RECORD:
David Yerzy
Barrister & Solicitor
Toronto, ON For the Applicant
John H. Sims, Q.C.
Deputy Attorney General of Canada For the Respondent
[1] This error was appropriately brought to the attention of both the Court and the Applicant’s counsel by counsel for the Respondent. Such professionalism reflects very positively on counsel as an officer of the Court and upon her client.