Date: 19990910
Docket: IMM-4707-98
BETWEEN:
STEPHEN LADO ONESIMO
(a.k.a. PETER PAUL LADO),
Applicant,
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent.
REASONS FOR ORDER
SHARLOW J.
[1] The applicant Stephen Lado Onesimo seeks judicial review of a decision rendered by a three member panel of the Appeal Division of the Immigration and Refugee Board reversing a determination made in 1993 that Mr. Onesimo is a Convention refugee.
[2] The right of the Minister to seek the reversal of a favourable refugee determination is found in subsection 69.2(2) of the Immigration Act, which reads as follows:
| The Minister may, with leave of the Chairperson, make an application to the Refugee Division to reconsider and vacate any determination made under this Act or the regulations that a person is a Convention refugee on the ground that the determination was obtained by fraudulent means or misrepresentation, suppression or concealment of any material fact, whether exercised or made by that person or any other person. |
[3] If leave is granted, the Appeal Division must conduct a hearing pursuant to subsection 69.3(1). The jurisdiction of the Appeal Division is set out in subsections 69.3(4) and (5), which read as follows:
| (4) The Refugee Division shall approve or reject the application and shall render its decision as soon as possible after completion of the hearing and send a written notice of the decision to the Minister and the person who is the subject of the application. |
| (5) The Refugee Division may reject an application under subsection 69.2(2) that is otherwise established if it is of the opinion that, notwithstanding that the determination was obtained by fraudulent means or misrepresentation, suppression or concealment of any material fact, there was other sufficient evidence on which the determination was or could have been based. |
[4] The power to reconsider a refugee determination applies to all such determinations, whether made by the Refugee Division or by a visa officer.1 In considering the exercise of its discretion under subsection 69.3(5), the Appeal Division must take into account only the evidence that was considered in the initial refugee claim.2
[5] Mr. Onesimo gave evidence at the Appeal Division hearing in May 1998. He stated that he met Mary Akelo and her family in a refugee reception centre in Kenya in 1992, that he became attached to her and that they intended to be married. Ms. Akelo's mother Sarah Adwar, a Sudanese citizen, submitted a refugee claim and application for permanent residence for herself and her family, including a son by the name of Peter Paul Lado. However, her son was not with her. It was thought that the absence of Ms. Adwar's son would delay the processing of her application. To facilitate the application process, Mr. Onesimo posed as Ms. Adwar's son. Ultimately, the application of Ms. Adwar was accepted. Mr. Onesimo was included in that acceptance under the name of Peter Paul Lado, Ms. Adwar's son.
[6] At the Appeal Division hearing, Mr. Onesimo explained that he did not wish to proceed with his refugee application in this fashion but was motivated to do so by his wish to assist Ms. Adwar and her family. Mr. Onesimo said that he has a valid refugee claim in his own right and that his claim would have been processed more quickly than Ms. Adwar's application for herself and her family.
[7] Mr. Onesimo also indicated at the hearing that several officials who dealt with Ms. Adwar's application knew that he was not really Ms. Adwar's son. He said that at the refugee camp he completed a form in his own name even though he was also included falsely in the form completed by Ms. Adwar. He said that he made his true identity known to the UNHCR officer at the refugee camp, who advised them to proceed with Ms. Adwar's application notwithstanding the false representations as to Mr. Onesimo's identity. Mr. Onesimo also said that when he and Ms. Adwar were interviewed by the immigration official in Nairobi who processed Ms. Adwar's application, the official was made aware of the deception, as was the immigration officer at the airport in Toronto who dealt with their entry into Canada and an immigration officer in Winnipeg named Michael Scott.
[8] No evidence was adduced by the Minister to contradict any of this evidence. Counsel for Mr. Onesimo said in argument that efforts were made to obtain the relevant files and that those efforts were unsuccessful. However, no affidavit evidence to that effect was provided on that point.
[9] The Appeal Division disbelieved all of Mr. Onesimo's story on the basis that it was implausible. The Appeal Division primarily refused to accept that the various officials that Mr. Onesimo encountered in the application process described above would have permitted him to be admitted as a member of Ms. Adwar's family if they had known that his identity was misrepresented on her application.
[10] In reaching this conclusion, the Appeal Division apparently relied on its knowledge of the practices and standards of UNHCR officials and immigration officials in Canada and abroad to assess the likelihood of the kind of behaviour Mr. Onesimo attributed to such officials. The Appeal Division was entitled to take that approach and was also entitled to consider, as a matter of common sense, the likelihood of a stream of officials encouraging Mr. Onesimo's admitted misrepresentation.3
[11] Noting that the determination that Mr. Onesimo is a Convention refugee was based on false information set out in Ms. Adwar's application, the Appeal Division concluded as follows: Although the panel is sympathetic to the reality that the respondent may have indeed been a Convention refugee at the time he was included in Sarah Adwar's application for permanent residence in his own right, it finds that there was no evidence before the visa officer upon which a finding that the respondent was a Convention refugee could have been made.
[12] This statement indicates that the Appeal Division was aware of its obligation to consider only the evidence that was before the visa officer who made the initial determination. The refusal to consider new evidence is the correct approach, given the current jurisprudence.
[13] The next question is whether the Appeal Division considered all of the evidence that was before the visa officer. I do not know. It is impossible to determine from the record whether or not everything that was before the visa officer has been included. However, counsel for the applicant did not base any of his arguments on any dificiencies in the record. The implications of that omission are discussed later in these reasons.
[14] Counsel for Mr. Onesimo argues that the evidence of country conditions in Sudan that was before the visa officer, without more, was sufficient to justify the conclusion that Mr. Onesimo is entitled to refugee status. However, conditions in the Sudan are only one element of Mr. Onesimo's refugee claim. I agree with counsel for the Minister that once the false information in the application of Ms. Adwar is disregarded, there is no evidence as to Mr. Onesimo's identity or nationality or personal history.
[15] The lack of evidence to support Mr. Onesimo's refugee claim would be sufficient to dismiss this application, except for two matters of concern. First, there is a decision rendered by a different panel of the Appeal Division that appears to contradict the conclusion reached in this case. Second, there is a troubling absence of any evidence that the record before me is complete.
Contrary decision
[16] Before the Appeal Division hearing that is the subject of this case, Mr. Onesimo was the subject of a separate hearing before a differently constituted Appeal Division panel (which I will call the "first panel"). That first panel considered an appeal of a removal order made against Mr. Onesimo. The first panel hearings occurred on August 20, 1996 and December 1, 1997 and led to a decision signed on March 12, 1998.
[17] The Appeal Division that rendered the decision that is the subject of this application (which I will refer to as the "second panel") held its hearing in May of 1998. The second panel was not made aware of the decision of the first panel, which was rendered two months prior. Mr. Onesimo's counsel appeared at the hearing before both the first panel and the second panel and was before me in this application.
[18] Counsel for the Minister objected to any consideration of the decision of the first panel in this judicial review. He argued that the decision of the first panel was evidence that was not before the second panel and therefore cannot be considered in this judicial review.
[19] Since the existence of the first panel's decision forms a substantial part of the argument upon which leave was granted to commence this application for judicial review, I permitted the decision of the first panel to be included in the record, with the question of its relevance and weight to be determined after argument.
[20] The decision of the first panel arose from a deportation order issued against Mr. Onesimo following his conviction in 1994 on a charge of assault against Mary Akelo, and a subsequent conviction for breach of a recognizance. Mr. Onesimo appealed the deportation order under paragraph 70(1)(b) of the Immigration Act "on the ground that, having regard to all the circumstances of the case," he should not be removed from Canada.
[21] In the paragraph 70(1)(b) appeal, the first panel considered Mr. Onesimo's entire history, including evidence that appears to be substantially the same as the evidence he gave before the second panel. His evidence was accepted as true by the first panel. In other words, the first panel found plausible the same story that the second panel found to be implausible.
[22] Counsel for the Minister argues that the object of the hearing by the first panel was to determine whether or not there were reasons for staying the deportation order on certain conditions. The first panel was primarily concerned with the nature of Mr. Onesimo's past criminal behaviour, the likelihood of further offences, and the prospects for Mr. Onesimo's rehabilitation. The first panel was not concerned with the validity of his refugee claim.
[23] It is true that the questions considered by the two panels were quite different. At the same time, however, the first panel appeared to attribute Mr. Onesimo's convictions in part to domestic tensions arising from the difficulties he was having with immigration matters. Thus, the history of his refugee claim, and the facts relating to the manner in which it was made, were matters that the first panel took into consideration. It certainly would have been open to the first panel to discount his story on the basis of implausibility, but that was not their finding.
[24] The second panel, if apprised of the March 1998 decision, might have found Mr. Onesimo's story to be implausible despite the contrary opinion of the first panel. However, the important point is that the second panel did not have the benefit of knowing that Mr. Onesimo's story had been subject to the scrutiny of another panel of the Appeal Division in a separate, but obviously related matter. As the second panel did not know of the decision of the first panel, it had no opportunity to consider, for example, whether the general principle of res judicata should apply to preclude the Minister from attempting to have the second panel reach different factual conclusions than those reached by the first panel.
[25] The decision of the first panel clearly favoured Mr. Onesimo. What then is the effect of the failure of Mr. Onesimo's own counsel to bring this decision to the attention of the second panel? It is obvious that he knew of it, as he acted for Mr. Onesimo in both hearings.
[26] Counsel for Mr. Onesimo said in argument that his failure to advise the second panel of the decision of the first panel was an oversight. Perhaps it was. Or perhaps it was a tactical decision. The reason for the omission seems to me to be irrelevant. The omission amounted to a waiver by Mr. Onesimo, through his counsel, of any arguments that might have been presented to the second panel based on the decision of the first panel. It is now too late for counsel for Mr. Onesimo to allege any error by the second panel on the basis that they failed to consider the decision of the first panel. For that reason, I have disregarded the existence of the decision of the first panel in reviewing the decision of the second panel.
Incomplete record
[27] As indicated above, it is impossible to determine whether or not the record before me includes everything that was before the visa officer who assessed Ms. Adwar's application. However, counsel for the applicant did not base any of his arguments on the possibility that the record before the Appeal Division was incomplete. At the hearing, I asked counsel to submit further argument on the relevance of the incompleteness of the record, and whether Mr. Onesimo, through his counsel, had waived any arguments in that regard.
[28] Counsel for Mr. Onesimo points specifically to the absence from the record of the visa officer's notes and the notes of the immigration officer at the port of entry. He says that there might have been some indication in those notes as to whether or not Mr. Onesimo had told those officials the truth. He argues that disputes arising from deficiencies in the record should, in general, be determined against the Minister because the Minister is in control of how extensive a record is kept, and for how long.4 He argues that the Appeal Division was wrong to consider the Minister's appeal on the basis of a record that it knew or should have known was incomplete.
[29] Counsel for the Minister notes that the decision of the visa officer was made in 1993, and that the application by the Minister to vacate Mr. Onesimo's refugee status was not made until 1996. There is no time limitation for such applications. He suggests that the absence of documents that might have been before the visa officer when the original decision was made was due to a "thin file" policy as set out in a manual used by immigration officials.
[30] It appears that under this policy, visa officers are entitled to destroy certain records after two years. The thin file policy may explain the absence of some documents. However, I see nothing in that policy relating to the visa officer's own notes of interviews. In fact, the policy does not refer at all to notes kept on the computerized note taking system called "CAIPS". It is difficult to imagine any practical difficulty in arranging for the retention of computer records for a reasonably lengthy period of time. The policy also states that in areas where the CAIPS system is not available, case notes must be made in black ink to facilitate access to information requests. Such a policy suggests to me that case notes are intended to be retained for future reference, although for what period of time I do not know as it was not addressed by either counsel.
[31] In the absence of evidence relating to how the thin file policy is applied in practice to CAIPS notes or other notes made by a visa officer, I do not have a sufficient basis for concluding that the lack of such notes in this case can be explained or justified by that policy. I infer that the case notes either still exist or were destroyed for some reason other than the thin file policy.
[32] Counsel for Mr. Onesimo said in argument that he made reasonable attempts to obtain the CAIPS notes and the immigration officer's notes, but was told they were not available. There is no affidavit evidence relating to these efforts, or to the responses he was given. In any event, when he appeared for Mr. Onesimo before the Appeal Division he did not base any of his arguments on the incompleteness of the record. In argument at this hearing, he said that he believed any objections he made in this regard would have been ineffectual and that it did not appear likely that any of the notes would surface.
[33] It is clear from the transcript of proceedings before the Appeal Division that counsel for Mr. Onesimo did not argue that the review procedure was flawed in any way because of an incomplete record. Nor did he argue that an adverse inference could or ought to be drawn against the Minister due to the incompleteness of the record, the absence of CAIPS notes, or any other notes made by immigration officials. On the face of it, this conduct amounted to an implied waiver, which should preclude counsel for the applicant from now attacking the decision of the Appeal Division based on the incompleteness of the record: Yassine v. Canada (Minister of Employment and Immigration) (1994), 27 Imm. L.R. (2d) 135 (F.C.A.).
[34] Counsel for Mr. Onesimo argues that in these circumstances he should not be precluded from objecting to the incompleteness of the record at this stage because, if he had raised it before the Appeal Division, it would have been beyond the power of the Appeal Division to provide a remedy since the records have apparently ceased to exist. Even if he had, for example, asked for an order for the production of such records and for an adjournment to allow time for them to be produced, the effort would have been futile.
[35] Perhaps it would have been futile to make further efforts to obtain the records, perhaps not. The point is that counsel for Mr. Onesimo did not raise any argument before the Appeal Division on the basis of the incompleteness of the record, and in such circumstances they were entitled to presume that he was content with the state of the record. In these circumstances I cannot find that the Appeal Division made any error in failing to take into account CAIPS notes or any other notes that were not before them, or in failing to take steps on their own initiative to obtain such material or to obtain an explanation for their absence.
Conclusion
[36] This application for judicial review is dismissed.
"Karen R. Sharlow"
Judge
Toronto, Ontario
September 10, 1999
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: IMM-4707-98 |
| STYLE OF CAUSE: STEPHEN LADO ONESIMO |
(a.k.a. PETER PAUL LADO),
| - and - |
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
| DATE OF HEARING: MONDAY, JULY 26, 1999 |
| PLACE OF HEARING: WINNIPEG, MANITOBA |
| REASONS FOR ORDER BY: SHARLOW J. |
| DATED: FRIDAY, SEPTEMBER 10, 1999 |
| APPEARANCES: Mr. David Davis |
For the Applicant
Mr. Joel Katz
For the Respondent
SOLICITORS OF RECORD: Davis Immigration Law
Barristers & Solicitors
Suite 800, 310 Broadway
Winnipeg, Manitoba
R3C 0S6
| For the Applicant |
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date:19990910
Docket: IMM-4707-98
Between:
| STEPHEN LADO ONESIMO |
(a.k.a. PETER PAUL LADO),
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
| REASONS FOR ORDER |
__________________
1Bayat v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 901 (F.C.A.)(QL) (not yet reported).
2Guruge v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1821 (F.C.T.D.)(QL) (under appeal); Bayat v. Canada (Minister of Citizenship and Immigration), (1995) 96 F.T.R. 76 (F.C.T.D.), reversed on other grounds, [1999] F.C.J. No. 901 (F.C.A.)(QL).
3Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.); Alizadeh v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 11 (F.C.A.)(QL); Shahamati v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 415 (F.C.A.) (QL); Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.).
4Parveen v. Canada (Minister of Citizenship and Immigration), (29 April 1999) IMM-3587-87 (F.C.T.D.).