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”
Ottawa, Ontario
April 27, 2007
Email this Content