Toronto, Ontario, April 18, 2007
PRESENT: The Honourable Mr. Justice Hughes
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Applicant is an adult female citizen of India. She made an application for refugee status initially on the basis that she feared certain unnamed terrorists who allegedly arrived unannounced at her house demanding food and were refused. The basis for her claim subsequently changed so that she is now alleging that she has been severely beaten by her former husband and fears return to India and that she will again face beatings from her former husband.
[2] For the Reasons that follow the application is dismissed.
[3] The Applicant’s claim was considered a first time by the Immigration and Refugee Board in 2001. In a decision dated August 20, 2001, the Board determined that she was not a Convention Refugee. That decision was judicially reviewed in this Court by Justice Kelen who, on September 11, 2002 allowed the application and made the following Order:
1. This application for judicial review is allowed and the matter referred back to a differently constituted panel of the CRDD for a new hearing. Both counsel agreed that this application does not raise a question of serious general importance. The Court agrees so that no question is certified for appeal.
[4] Section 18(3) of the Federal Courts Act R.S.C. 1985, c. F-7 provides that the Court may refer a matter back to the Board “for determination in accordance with such directions as it considers to be appropriate”. The Order of Kelen J. does not provide any such directions.
[5] Counsel for the Applicant submits however that the Reasons given by Kelen J. amount to the giving of such directions. He said at paragraph 9 of his Reasons:
[9] Accordingly, the Court concludes that the applicant is entitled to a new hearing with a full opportunity to present her evidence about the physical and mental abuse which forms the basis of her claim for Convention refugee status. The CRDD must be satisfied, on the balance of probabilities, that the applicant had a well founded fear of persecution from her husband in the year 2000, the year of her divorce and the year she allegedly decided to flee India because of the persecution.
[6] It is appropriate, in circumstances where a matter is returned to the Board for reconsideration, for the Board to have regard to the Reasons provided by the Court. This is something different however, from following directions which form part of an Order of the Court.
[7] In this case, the Board did precisely as Justice Kelen’s Reasons suggest that it do. The Board found that there was no credible evidence to support the alleged pursuit by the husband of the claimant following the divorce in 1999. At page 9 of the Reasons the Board member said:
With respect to the allegations of persecution following the divorce, given the absence of any reasonable explanation for their omission from the both PIF and the numerous amendments to the PIF, I do not accept there is credible evidence the ex-husband attacked the claimant twice in the market and once at home prior to her departure from India. I find, on a balance of probabilities, there is no credible evidence to support the alleged pursuit of the claimant following the uncontested divorce in 1999.
[8] There is no basis for setting aside the Board’s decision for failure to follow a direction of this Court as none was expressly given. If a direction were to be implied from the Court’s Reasons, the Board did follow what was arguably implied.
[9] The Applicant’s counsel argued that the Board’s decision should be set aside for failure to have regard to the Gender Guidelines since the Applicant was a divorced woman who had allegedly suffered abuse at the hands of her ex-husband. Counsel agreed that there is no requirement that the Gender Guidelines be expressly be referred to by name in the Reasons of the Board. In fact, the Board member, a woman, made it very clear in her reasons that she was quite mindful of the Applicant’s circumstances and the necessity for special consideration. At page 5 of the Reasons the member said:
Still, I am the first to agree that demeanour is not the most reliable tool by which to assess credibility and, as noted above, am mindful of the caution necessary when assessing testimony and behaviour in gender-related claims. Responses to stressful situations vary between individuals and may include inappropriate emotional reactions such as tears or laughter.
[10] It is clear to this Court that the hearing was conducted in a very compassionate way, frequent recesses were given, and great care was taken in the questioning of the Applicant. The Applicant was represented by a leading member of the immigration bar, who was allowed to proceed first with the questioning. The Reasons of the Board at page 5 accurately express the conduct of the hearing:
The claimant’s highly emotional state while testifying seemed inconsistent with the fact the events recounted occurred well in the past. Further, she had been safe in Canada for over four years prior to the commencement of the hearing before me, was assisted by obviously compassionate counsel, questioned most gently by the RPO, and had already experienced a hearing before the Board so was in a position to know what to expect from the process.
[11] The Reasons given by the Board express time and again a number of grounds upon which findings as to lack of credibility were made. Counsel challenged some of these findings. However, the totality of the evidence as considered by the Board and as again reviewed by this Court leads to no other conclusion than that the Board’s findings that the claim of the Applicant lacked credibility were not patently unreasonable. There is no basis upon which such findings can be set aside. Neither counsel requested the certification of a question.
JUDGMENT
For the Reasons provided;
THIS COURT ADJUDGES that:
1. The application is dismissed;
2. No question will be certified;
3. There is no Order as to costs.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2435-06
STYLE OF CAUSE: JASWINDER KAUR DHALIWAL v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: April 17, 2007
AND JUDGMENT: HUGHES J.
APPEARANCES:
Devika Ratnayake FOR THE APPLICANT
Sally Thomas FOR THE RESPONDENT
SOLICITORS OF RECORD:
Waldman & Associates
Toronto, Ontario FOR THE APPLICANT
John H. Sims, QC
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT