Date:
20070427
Docket:
IMM-2767-06
Citation:
2007 FC 447
Ottawa,
Ontario, April 27, 2007
PRESENT: The Honourable Mr. Justice
Blanchard
BETWEEN:
AMANI
AL HAKIMI
(a.k.a.
Amani Abulwaha Al Hakimi)
Applicant
and
THE
MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
1. Introduction
[1]
The Applicant, Amani Al Hakimi, seeks judicial review
of the decision of the Immigration and Refugee Board (Board) rendered May 3,
2006. The Board determined that she was neither a Convention refugee nor a
person in need of protection pursuant to sections 96 and 97 of the Immigration
and Refugee protection Act (IRPA).
2. Facts
[2]
The Applicant, Amani Al Hakimi, is a 28 year old
citizen of Yemen who seeks
refugee status on the basis that she fears persecution in Yemen.
[3]
The Applicant alleges that she was able to convince her
father to allow her to continue her formal education after high school but only
if she agreed to marry her cousin, Jamal Abdulnasser. She found Jamal, who
already had a number of wives, to be a “primitive and uneducated” man with no
respect for women. The Applicant succeeded in having the marriage put off until
completion of her university studies.
[7]
The Applicant’s hearing was held in two
sessions, on August 19, 2005 and on March 20, 2006. Counsel for the Applicant
objected to the order of questioning at the outset of the hearing on August 19,
2006. Concerns in respect to the Applicant’s identity documents caused the
Board to adjourn the hearing to March 20, 2006, so that inquiries could be made
in respect to such documents. Upon the resumption of the hearing in March, the
Board expressed the view that new information obtained changed the complexion
of the case. The Board felt that the Applicant’s identity now raised
significant credibility concerns and, as a result, allowed Counsel for the
Applicant to proceed first with questioning.
[8]
The following evidence was adduced relating to the Applicant’s
identity:
-
a Yemani passport issued August 15, 2004, in the name
of Amani Abdulwahhab Hamod bearing the Applicant’s photograph;
-
an application for a Temporary Residence Visa (TRV)
dated August 25, 2004, made by Amani Abdulwahhab Al-Hakimi bearing the
Applicant’s signature;
-
a fraudulent Yemeni passport issued December 7, 2004, in the name of Sarah Abdlhafedh
Hamood with a Canadian TRV issued January 1, 2005, bearing the photograph of
the Applicant;
-
an application for a TRV in the name of Sarah Abdul
Hafedh Abdo dated January 9, 2005;
-
a graduation Certificate issued by Sana’a University in
the name of Amani Abdulwahhab Hamod bearing the Applicant’s photograph;
-
a graduation transcript issued by the Ministry of
Education in Yemen in the name of Amani Abdulwahhab Hamod and bearing the Applicant’s
photograph;
-
a transcript issued by Sana’a University in the name of
Amani Abdulwahhab Hamod bearing the applicant’s photograph;
-
a birth certificate issued by the Yemeni government in
the name of Amani Abdeul Wahab Hamod Ak Hakimi; and
-
an identity card issued by the Civil Affairs Department
in Yemen in the name of Amani
Abdul Wahab Hamod Al Hakimi.
3. The
Impugned Decision
[9]
The Board determined that the Applicant is not a
Convention refugee or a person in need of protection on the basis that she was
not credible and that she failed to establish her personal identity.
[10]
The Board initially rejected the Applicant’s objection
to the order of questioning on the basis that the Applicant did not raise nor
did the claim disclose any circumstances apparent from the pleadings that would
support the exercise of the Board’s discretion to vary the order of
questioning. However, as noted above, on the second day of the hearing on March
20, 2006, Counsel for the Applicant was permitted to question first.
[11]
The Board impugned the Applicant’s credibility based on
the following omissions, inconsistencies, and negative plausibility findings.
The Board found inconsistencies with the testimony of the Applicant at the
first hearing and the second hearing concerning her Brother’s role in assisting
her. The Board found the Applicant’s evidence to be vague, inconsistent and
highly implausible. As a result the Board afforded no weight to the Applicant’s
other identity documents. The Board also noted that the Applicant had omitted
to mention in her PIF Jamal’s role in alerting her father about her
relationship with her boyfriend before mid-January 2005. Further, the Board
found implausible that the Applicant would be completely unaware of the passport
and TRV, which bears her signature. In the end, the Board was not satisfied the
Applicant had established her identity on a balance of probabilities and made a
general finding of lack of credibility pursuant to s. 106 of the IRPA.
4. Issues
to be determined
[12]
This application for judicial review raises the
following issues:
A. Whether the Applicant was denied natural
justice, as a consequence of reverse order questioning, as set out in Guideline
7, fettering the Board’s discretion?
B. Whether the way in which the hearing was
conducted prejudiced the Applicant or raises a reasonable apprehension of bias
by the Board?
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
[13]
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 patent unreasonableness 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. Whether the Applicant was denied natural justice, as a
consequence of reverse order questioning, as set out in Guideline 7, fettering
the Board’s discretion?
[14]
The Applicant, in oral argument, contends that had counsel
been permitted to question first on the first hearing day, the outcome might
well have been different. In essence, her fairness argument is based on
Guideline 7 fettering the discretion of the Board, which results, de facto,
in a violation of procedural fairness.
[15]
Guideline 7 “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. Guideline 7, in part, states:
|
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.
|
[16]
In support of her argument the Applicant cites Thamotharem
v. Canada
(Minister of Citizenship and Immigration), [2006]
F.C.J. No. 8. In that case, I
found that reverse order questioning does not inherently violate the principles
of natural justice. I also found that Board members must be free to consider
the fairness of reverse order questioning on the facts of each case and be free
to vary the order of questioning in appropriate circumstances. On the facts
before me in Thamotharen, I concluded that Guideline 7 unlawfully
fetters the discretion of Board members in determining whether or not to
proceed with reverse order questioning. The decision in Thamotharen was
appealed and the matter is currently before the Federal Court of Appeal.
[17]
Here, the facts are different. There is simply no
evidence to support the contention that the Board’s discretion was fettered in
any way. Indeed, on the resumption of the hearing, the Board member on her own
undertaking invited Counsel for the Applicant to question first because of
concerns the Board member had become aware of during the adjournment concerning
the Applicant’s credibility and her identity documents. It is clear that the
Board member did not feel constrained by Guideline 7. Indeed, the
expressed reasons given by the Board member for allowing Counsel to question
first at the outset of the second hearing are not the sort of exceptional
circumstances expressly referred to in the Guideline itself. I am satisfied
therefore that Thamotharen finds no application here. Guideline 7 has
not fettered the discretion of the Board in the circumstances of this case. The
Applicant has failed to establish a factual foundation to support her argument.
B. Whether the way in which the hearing was conducted
prejudiced the Applicant or raises a reasonable apprehension of bias by the
Board?
[18]
While the Applicant raises this issue in her written submissions,
except for the above arguments on reverse order questioning, she fails to point
to any specific circumstances in the conduct of the hearing to support her
argument. A review of the transcript of both days of hearing in this matter
reveals no evidence which raises a reasonable apprehension of bias by the Board
Member. There is no merit to the second issue raised by the Applicant.
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?
[19]
The Applicant contends that the Board erred in finding
that the Applicant had failed to establish her identity, particularly in giving
no weight to the many identity documents submitted by the Applicant.
[20]
The Applicant’s testimony at the August 19, 2004
hearing was that she never possessed a Yemeni passport but acknowledged that
the false passport contained her photograph. She also stated that her younger
brother helped her escape upon learning from Jamal in November 2004 that she
had been meeting her boyfriend. During the time between the first and second
session of the hearing, inquiries revealed that a passport had been issued in
the Applicant’s name. At the March hearing, the Applicant stated that she had
no idea how this passport came into existence but agreed with her Counsel that
her brother might have obtained the valid passport and suggested that the
August 15, 2004 date of issue was consistent with the date her problems began
sometime around June or July 2004. This contradicted her testimony at the first
hearing, when she testified that her younger brother became involved in
assisting her in November 2004, the date on which she was to be married.
[21]
It is only upon discovering the issuance of the valid passport in August
that the Applicant changed her story and acknowledged that her younger brother
had been involved in assisting her earlier than November 2004. She explained
the discrepancy in her testimony by stating she was confused.
[22]
In my view, it was open to the Board to reject the Applicant’s
explanation. Given that the Applicant was to be married in November 2004, the
date would have been important to her and events occurring around that date
would also have been important to her. It is therefore not unreasonable for the
Board to find implausible that the Applicant confuses the dates of her younger
brother’s involvement, particularly by so many months. Further, a review of the transcript of the hearing, in respect of this finding
substantiates the Board’s determination that the Applicant’s evidence was vague
and inconsistent. In the result, the Board’s finding is not patently
unreasonable.
[23]
I am also of the view that the Board’s negative
plausibility finding concerning the Applicant’s contention that she was unaware
of the existence of the TRV or the passports used in their support was open to
it on the record. The Applicant conceded that one of the visas bears her
signature. The finding is not patently unreasonable.
[24]
Further, the Board did not err in impugning the
Applicant’s credibility based on an omission in the Applicant’s PIF concerning Jamal’s
role in alerting her father to her illicit relationship. This finding was open
to the Board on the evidence and not patently unreasonable.
[25]
The evidence supported the Board’s determination
concerning the Applicant’s general lack of credibility. Given this
determination it was open to the Board to give no weight to the other identity documents
submitted by the Applicant. It is not the role of the Court to re-weigh the
evidence before the Board, but rather to determine if the Board erred in making
its decision based on the applicable standard of review. The Board committed no
reviewable error in deciding as it did.
7. Conclusion
[26]
For the above reasons, the application for judicial
review will be dismissed.
[27]
The parties have had the opportunity to raise a
serious question of general importance as contemplated by paragraph 74(d)
of the IRPA, and have not done so. I am satisfied that no serious question of
general importance arises on this record. I do not propose to certify a question.
ORDER
THIS
COURT ORDERS that:
1. The application for judicial review of the
Immigration and Refugee Board decision rendered May 3, 2006, is dismissed.
2. No
question of general importance is certified.
“Edmond P.
Blanchard”
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