Date: 20070427
Docket: IMM-2955-06
Citation: 2007 FC 448
BETWEEN:
MARIAN KAMARA
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
BLANCHARD J.
1. Introduction
[1] The Applicant, Marian Kamara, seeks judicial review of a decision of the Immigration and Refugee Board (the Board) rendered May 17, 2006, wherein the Board determined that she was neither a Convention refugee nor a person in need of protection under sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c.27 (IRPA).
2. Fact
[2] The Applicant, Marian Kamara, a citizen of Sierra Leone, is 39 years of age and a refugee claimant who fears persecution or a risk to her life in Sierra Leone by the brother of her deceased husband. She alleges that her brother-in-law, an ex-Rebel and current member of the Sierra Leonean army, insisted on marrying her, and threatened her life should she fail to comply with his proposal.
[3] In 1985, the Applicant married a policeman named Mazwell Kamara.
[4] When the rebels took over Freetown in 1997, her brother-in-law joined the Rebels, and retreated with them when they were rebuffed by the government forces.
[5] In January 1999 when the Rebels returned, the Applicant, her husband and their children fled to Guinea.
[6] In 2000, the Sierra Leonean government granted amnesty to the Rebels. Many of them returned and were absorbed into the armed forces, as was the Applicant’s brother-in-law, who became a senior officer.
[7] In May 2000, the Applicant’s husband died and his family decided that she should marry her brother-in-law. The Applicant refused to do so. Threats from her brother-in-law began at that time. She reported the threats to the police, but once they found out that her brother-in-law was an officer in the Sierra Leonean army they questioned her about her status in Guinea and advised her to return to Sierra Leone and try to resolve her family problems from there.
[8] The Applicant’s former boyfriend, Philip Kamara, obtained a Saudi Arabian visa for her to go to Saudi Arabia as his second wife. He allegedly provided documentation to the Saudis, and the Applicant travelled to Senegal, where she picked up a passport with a visa which allowed her to enter Saudi Arabia.
[9] The Applicant alleges that her former boyfriend also obtained for her a U.S. visa which she used to travel to Canada on December 9, 2004. She claimed refugee status on the same day.
[10] The Applicant’s hearing before the Board took place over two sessions on September 30, 2005 and May 9, 2006. No Refugee Protection Officer was present and the Applicant was represented by counsel. During the first session and most of the second, the Board Member questioned the applicant first, pursuant to Guideline 7, the Reverse Order questioning Guideline. No objection was made before or during the hearing to the order of questioning.
3. Decision under Review
[11] The Board accepted that the Applicant is from Sierra Leone, but determined that she is neither a Convention refugee nor a person in need of protection. The Board found that the Applicant was not a credible witness and that she manufactured evidence for the benefit of her claim.
[12] The Board based its negative credibility and plausibility findings on omissions, contradictions and misrepresentations in the Applicant’s evidence.
[13] The Applicant testified that, after her husband died, she lived with her mother’s relatives. She indicated that they were not known to her husband’s family, but was unable to credibly explain how they would not know her mother’s family since they were from the same village.
[14] The Applicant stated that her brother-in-law was absorbed into the Sierra Leonean army in the year 2000, yet she also asserted that at that time he was in a refugee camp.
[15] The Board also found implausible that she was permitted to join her former boyfriend, Philip Kamara, in Saudi Arabia as his second wife. The Applicant did not have a marriage certificate and Philip Kamara was not a Muslim. The Board found it unlikely that the Saudis with strict immigration laws would issue a visa to the Applicant in such circumstances.
[16] The Board also noted that the Applicant lied about being in Saudi Arabia for 15 years in order to facilitate her obtaining a Canadian visa. Further, she misled immigration authorities stating that she was accompanied to the United States by Abu Sesay, while during her testimony before the Board she testified that Philip Kamara had accompanied her.
[17] At the port of entry, the Applicant failed to mention her main reason for fleeing her country and coming to Canada, her fear of persecution at the hands of her brother-in-law. Instead, she claimed that her fear was based on the civil war of 1999. The Board impugned the Applicant’s credibility for omitting to raise, at the port of entry, this central issue in her refugee claim.
[18] The Board found that the Applicant is not a Convention Refugee because she failed to establish a well-founded fear of persecution on a Convention ground in Sierra Leone. The Board also found that the Applicant’s removal to Sierra Leone would not subject her personally to a risk to her life, or to a risk of cruel and unusual treatment or punishment. The Board further found that there are no substantial grounds to believe that her removal would subject her personally to a danger of torture. In the result, the Board concluded that the Applicant is not a Convention Refugee or a person in need of protection.
4. Issues to be Determined
[19] This application for judicial review raises the following issues:
A. Does Guideline 7, relating to the standard order of questioning, in itself, violate the principles of natural justice or procedural fairness by fettering the Board member’s discretion to vary the order of questioning?
B. Whether the reverse order of questioning in the circumstances of this case, prevented the Applicant from receiving a fair hearing.
C. Whether the Board based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
5. Standard of Review
[20] The two first issues which relate to procedural fairness and the principals of natural justice are reviewable on the correctness standard. The third issue, concerning credibility and plausibility findings by the Board are reviewable on the patently unreasonable standard of review (C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, Aguebor c. Canada (Ministre de l’Emploi et de l’immigration), [1993] A.C.F. 732, R.K.L. v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 162).
6. Analysis
A. Does Guideline 7, relating to the standard order of questioning, in itself, violate the principles of natural justice or procedural fairness by fettering the Board member’s discretion to vary the order of questioning?
[21] Guideline 7 issued by the Chairperson of the Immigration and Refugee Board, “Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division” sets out a standard order for the questioning or refugee claimants and a provision for the variation of this order in exceptional circumstances. It reads, in part, as follows :
|
19. In a claim for refugee protection, the standard practice will be for the RPO to start questioning the claimant. If there is no RPO participating in the hearing the member will begin, followed by counsel for the claimant. Beginning the hearing in this way allows the clamant to quickly understand what evidence the member needs from the claimant in order for the claimant to prove his or her case.
23. The member may vary the order of questioning in exceptional circumstances. For example, a severely disturbed claimant or a very young child might feel too intimidated by an unfamiliar examiner to be able to understand and properly answer questions. In such circumstances, the member could decide that it would be better for counsel for the claimant to start the questioning. A party who believes that exceptional circumstances exist must make an application to change the order of questioning before the hearing. The application has to be made according to the RPD Rules. |
19. Dans toute demande d'asile, c'est généralement l'APR qui commence à interroger le demandeur d'asile. En l'absence d'un APR à l'audience, le commissaire commence l'interrogatoire et est suivi par le conseil du demandeur d'asile. Cette façon de procéder permet ainsi au demandeur d'asile de connaître rapidement les éléments de preuve qu'il doit présenter au commissaire pour établir le bien-fondé de son cas.
23. Le commissaire peut changer l'ordre des interrogatoires dans des circonstances exceptionnelles. Par exemple, la présence d'un examinateur inconnu peut intimider un demandeur d'asile très perturbé ou un très jeune enfant au point qu'il n'est pas en mesure de comprendre les questions ni d'y répondre convenablement. Dans de telles circonstances, le commissaire peut décider de permettre au conseil du demandeur de commencer l'interrogatoire. La partie qui estime que de telles circonstances exceptionnelles existent doit soumettre une demande en vue de changer l'ordre des interrogatoires avant l'audience. La demande est faite conformément aux Règles de la SPR.
|
[22] In Thamotharem v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 8, I determined that a breach of natural justice or procedural fairness does not arise simply from the fact that “counsel-first” questioning is not the procedure followed. I found, in effect, that Guideline 7 in itself does not fetter the Board member’s discretion and is not unlawful. A finding of a breach of natural justice and the fettering of discretion must be grounded on the evidence and determined on a case by case basis. My colleague. Mr. Justice Mosley, held the same view in Benitez v. Canada (Minister of Citizenship and Immigration), [2006] F.C.J. No. 631. Both cases are currently on appeal before the Federal Court of Appeal. I hold to the views expressed in Thamotharem, and this consequently disposes of the first issue raised by the Applicant.
B. Whether the reverse order of questioning in the circumstances of this case, prevented the Applicant from receiving a fair hearing.
[23] The Applicant argues, alternatively, that even if reverse order questioning does not result in unfairness in and of itself, it can lead to unfairness in particular circumstances. The Applicant contends that in this case the conduct of the Board member during questioning establishes a lack of procedural fairness such that the Applicant was not afforded a fair hearing.
[24] The Applicant further argues that the Board member’s questioning was not in keeping with the fair hearing principles set out in the CRDD Handbook “Conduct of Refugee Hearings”. The Applicant points to article 19 of the Handbook which cautions Members against “excessive questioning” which could make them appear to be “prosecutors” rather than impartial decision-makers. Here, the Applicant contends that the Member conducted the hearing in such a way that he was not seen as an impartial adjudicator. The Applicant argues that he attacked the evidence as a prosecutor might, which led to an unfair hearing.
[25] The Respondent argues that the Applicant, who was represented by counsel throughout the proceedings before the Board, has waived her right to complain on judicial review as neither she nor her counsel complained about the conduct of the hearing prior to or at the hearing. These issues were only raised for the first time on leave. The Respondent contends that the Applicant’s implied waiver is determinative of the issue, but that even on the merits, the Applicant has failed to demonstrate that the Board member’s discretion was fettered or that the hearing was unfair.
[26] In the instant case no evidence was adduced of circumstances, including any vulnerability that the Applicant may have with respect to any possibility testifying, that would favour “counsel-first” questioning. No substantive reason was advanced as to why it would have been preferable for the Board Member to permit her counsel to question her first. Further, the transcript confirms, and the Applicant concedes, that neither she nor her counsel ever raised an objection to the order of questioning followed before or at the hearing. The jurisprudence of the Court is clear; such issues dealing with procedural fairness must be raised at the earliest opportunity. Here, no complaint was ever made. Her failure to object at the hearing amounts to an implied waiver of any perceived breach of procedural fairness or natural justice that may have occurred. See Restrepo Benitez et al. v. M.C.I. 2006 FC 461 at paras. 220-221, 232 & 236, and Shimokawa v. M.C.I., 2006 FC 445 at paras. 31-32 citing Geza v. M.C.I. 2006 FCA 124 at para. 66.
[27] At the outset of the hearing, the Board Member set out in some detail issues of concern to her, including questions about the Applicant’s identity, inconsistencies between her Port of Entry (POE) notes and her PIF, the plausibility of her story in Saudi Arabia and her credibility generally. A careful review of the transcript demonstrates that the Board Member went to considerable lengths to clarify the Applicant’s evidence which was at times confusing, contradictory and inconsistent. The Applicant was at times unable to clarify her evidence and was generally unresponsive to the Board’s questions. Nothing in the transcript of the hearing demonstrates inappropriate questioning on the part of the Board Member. The Board is entitled, and indeed well advised, to ask questions and seek clarification especially when confusing evidence is being given. There is nothing here with respect to reverse order questioning or the manner in which the hearing was conducted to demonstrate unfairness in the conduct in the hearing.
C. Whether the Board based its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it.
[28] The Applicant takes issue with certain of the Board’s credibility and plausibility findings arguing they were made on the basis of speculation, by ignoring evidence or by misapprehending evidence.
[29] In my view, two of the Board’s findings are questionable. The Board did not find credible that her deceased husband’s family would not know members of her mother’s family since they hailed from the same village. The Board rejected the Applicant’s explanation that the relatives were refugees in a camp and did not know how to locate her husband. It may well have been speculative for the Board to conclude that since you hailed from the same village, you would have known the whereabouts of members of her mother’s family.
[30] The adverse inference drawn by the Board in respect to the allegedly contradictory statements by the Applicant concerning the whereabouts and status of her brother-in-law in 2000 is also suspect. While the integration of the rebels in the Sierra Leonean army occurred at the early part of 2000, it does not necessarily follow that every rebel was integrated at the same time. He could well have been in a refugee camp for part of the year.
[31] The Board, however, had other reasons to doubt the Applicant’s credibility. Given Saudi Arabia’s strict immigration laws, it was open to the Board not to believe the Applicant’s story about how she wound up in Saudi Arabia. She adduced no marriage certificate and conceded that her boyfriend was not a Muslim. In these circumstances, even if the Applicant’s boyfriend was “working as a Muslim” in Saudi Arabia for fifteen years, it was not patently unreasonable for the Board to find as it did.
[32] It was also open to the Board to reject the Applicant’s explanation on why the POE notes make no reference to the Applicant’s fear of her brother-in-law upon return to Sierra Leone, a central aspect of her claim. This is particularly so in circumstances where the explanation itself is based on contradictory evidence. At the outset of the hearing the Applicant explained that she did mention her brother-in-law at the border, and that the Immigration Officer simply did not take down this information in his notes. Later, in response to a question from the Board Member, the Applicant stated that, “…the lady [Immigration Officer] did not ask me…”. The evidence also indicates that the Applicant’s own written statement at the POE did not refer to her brother-in-law. In my view it was open to the Board to make an adverse credibility finding with respect to the central aspect of the Applicant’s claim from its absence in the POE. There is no evidence to suggest that the Board failed to consider the Applicant’s explanation. In these circumstances it was sufficient for the Board to simply state that it did not accept the Applicant’s “explanation” for the omission. The Board committed no reviewable error in making this finding.
[33] I am of the view that the record as a whole supports the Board’s credibility findings. Notwithstanding the concerns expressed earlier in respect to two of the Board’s findings, I am of the view that the Board’s other credibility and plausibility findings were not patently unreasonable and provided a sufficient basis to support the Board’s conclusion. The Board’s decision was therefore not based on an erroneous finding of fact as alleged. In consequence, I find that the Court’s intervention is not warranted.
7. Conclusion
[34] For the above reasons this application for judicial review will be dismissed.
[35] Counsel may serve and file submissions with respect to certification of a question of general importance, if any, within ten (10) days of the date of these reasons. Each party will have a further four (4) days to serve and file a reply, if any, to the submissions of the opposite party. Following consideration of those submissions, an order will issue dismissing the application for judicial review and disposing of the issue of a serious question of general importance as contemplated by section 74(d) of the IRPA.
“Edmond P. Blanchard”
Judge
Ottawa, Ontario
April 27, 2007
FEDERAL COURT
SOLICITORS OF RECORD
STYLE OF CAUSE: Marian Kamara v. M.C.I.
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 20, 2007
REASONS FOR ORDER AND ORDER: Blanchard J.
APPEARANCES:
Mr. Jack C. Martin FOR THE APPLICANT
416-351-8600
Ms. Amina Riaz FOR THE RESPONDENT
416-952-5010
SOLICITORS OF RECORD:
Mr. Jack C. Martin FOR THE APPLICANT
Toronto, Ontario
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Toronto, Ontario