Ottawa, Ontario, July 26, 2006
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Fengai Kaimondo says that he fled Sierra Leone in 2001 out of fear that the army suspected him of collaborating with rebels. He obtained asylum in the Netherlands, but left when he believed that his temporary permit would not be renewed. In August 2004, he arrived in Canada and sought refugee protection here.
[2] Mr. Kaimondo's claim was heard and dismissed by a panel of the Immigration and Refugee Board in 2005. He argues that the Board made a number of serious errors asks and me to order a new hearing. However, I can find no error that would justify overturning the Board's decision and must, therefore, dismiss this application for judicial review.
I. Issues
1. Did the Board explain adequately why it disbelieved Mr. Kaimondo's account of events?
- Did the Board ignore or wrongly discount evidence supporting Mr. Kaimondo's claim?
- Did the Board treat Mr. Kaimondo unfairly by permitting "reverse order questioning" at his hearing?
II. Analysis
A. Did the Board explain adequately why it disbelieved Mr. Kaimondo's account of events?
[3] The Board gave two main reasons for disbelieving Mr. Kaimondo. First, it found that he had given two different versions of his story - one in his personal information form (PIF) and another at the port of entry. Second, the Board felt that Mr. Kaimondo's description of how he managed to keep certain identity documents hidden on his person during three years of detention, and to procure others thereafter, was implausible.
[4] I can overturn the Board's findings only if I find that they were unsupported by the evidence, or if the Board failed to explain them adequately.
(a) The two versions of events
[5] When he first arrived in Canada, Mr. Kaimondo told an immigration officer that he worked for the Defence Minister in Sierra Leone, who was currently in custody for human rights abuses. He also said that he belonged to a militia called Kamajor. He later admitted that this was not true. He explained that he had concocted this story because he had been advised to make his account of events more compelling in order to gain admission to Canada. He claims that he later told another officer the real story, but there is no record of that conversation.
[6] In his PIF, Mr. Kaimondo stated that the Revolutionary United Front (RUF) singled out his family members for mistreatment because they owned a lucrative diamond business. He said that in 1998 the RUF took him and his father captive and raped his mother and sister. He did not manage to escape until 2001, when he fled to the Netherlands. He repeated this version of events at his hearing.
[7] The Board noted the discrepancy between the two accounts and drew an adverse inference regarding Mr. Kaimondo's credibility. In doing so, the Board made an error. It did not accept Mr. Kaimondo's claim that he had volunteered the true version of events to an immigration officer because the port of entry notes only reflect the first account. In fact, Mr. Kaimondo said that he had provided the second version of events, not at the port of entry, but to a different officer while he was in detention. That conversation would obviously not be reflected in the port of entry notes.
[8] But the Board's main point remains: Mr. Kaimondo did give two versions of events and there is no evidence that he volunteered the true account until he filed his PIF. It is clear that while he was in detention he gave a false version of events to an immigration officer. A transcript of that conversation appears in the record. Accordingly, the Board's belief that any revised narrative offered by Mr. Kaimondo would have been recorded by the officer to whom it was given is still valid.
(b) The identity documents
[9] Mr. Kaimondo told the Board that it was a common practice in Africa for people to hide documents or other valuables in their undergarments. He said he kept his passport and identity card hidden this way during the three years he was in captivity. He was never searched. Eventually, he lost his identity card. However, after his release, he was able to obtain a new one, as well as a birth certificate, even though he was allegedly sought by the army as a collaborator with the rebels.
[10] In the circumstances, the Board doubted that Mr. Kaimondo could have kept his identity documents hidden on his person for three years. It found that this was simply not plausible "taking into consideration the modus operandi of the rebels". Mr. Kaimondo argues that there was no evidence before the Board of any particular "modus operandi" and, therefore, that there was no basis for the Board's finding that his account of events was implausible.
[11] I do not think the Board was referring to any particularly unique practices of the rebels who were allegedly holding Mr. Kaimondo captive. As I read the Board's decision, it was simply noting that it would be highly unlikely that these rebels, who were holding persons against their will and trying to prevent their escape, would never have searched them over the course of three years. In my view, the Board's finding was open to it on the evidence.
[12] As for the documents obtained after his release, Mr. Kaimondo argues that there was no evidence that government offices in Sierra Leone were integrated in such a way that those who issued identity documents would be aware that other authorities were looking for him. Indeed, he suggests that the government infrastructure was quite rudimentary, having been decimated during the civil war.
[13] The Board found that Mr. Kaimondo was not, in fact, being targeted by government authorities. This finding was based only in part on the ease with which Mr. Kaimondo was able to obtain new identity documents. The Board also noted that the only affirmative evidence that he was being targeted by government authorities came in the form of uncorroborated hearsay evidence from his friends. Accordingly, the Board's conclusion that Mr. Kaimondo was not being sought by authorities could be considered to be entirely without evidentiary support only if I were to find that it wrongly discounted that hearsay evidence. As discussed below, I believe the Board's treatment of the hearsay evidence was within its discretion.
2. Did the Board ignore or wrongly discount evidence supporting Mr. Kaimondo's claim?
(a) The documentary evidence
[14] The Board cited a United States Department of State report that described conditions in Sierra Leone as having improved after the end of the civil war in 2002, after Mr. Kaimondo had left. The government has asserted control over the entire country and set up a war crimes tribunal to try combatants from the civil war. UN forces are there to help restore order. The Board acknowledged that there continue to be problems in certain areas but concluded that there was no credible evidence that persons in Mr. Kaimondo's situation would be at risk.
[15] Mr. Kaimondo argues that the Board failed to consider documentary evidence showing that the situation in Sierra Leone continues to be violent, chaotic and dangerous. In particular, he pointed to an expert's affidavit that had been prepared in 2004. Mr. Kaimondo submits that the Board should have considered the expert's report.
[16] The expert states that "former RUF captives . . . can be targeted to prevent them from ever making accusations or testifying in proceedings. The former rebels . . . feel justified in intimidating or killing such people, as they feel they are entitled to get on with their lives, and these people are spoiling their lives."
[17] Had the Board believed that Mr. Kaimondo was a former captive, the expert's report would have constituted an important piece of evidence indicating that he would be at risk of persecution or mistreatment on return to Sierra Leone. However, the Board clearly found that Mr. Kaimondo had not been a prisoner and that he had "manufactured his whole claim in order to seek refugee protection in Canada." In the circumstances, it was not incumbent on the Board to refer to the expert's report.
(b) The hearsay evidence
[18] As mentioned, the Board noted that the only evidence showing that Mr. Kaimondo was wanted by authorities in Sierra Leone was hearsay. In particular, Mr. Kaimondo testified that his friends told him that government officials were looking for him.
[19] The Board found that it could not give this evidence any weight. Mr. Kaimondo argues that the Board erred by discounting its value.
[20] The Board stated that it could not rely on this evidence because Mr. Kaimondo's overall credibility was in question. The fact that the Board was concerned about Mr. Kaimondo's credibility meant that it was not satisfied that his friends' statements had ever been made. In these circumstances, the Board was entitled not to give this evidence any weight. The Board did not state that the evidence was inadmissible; it simply chose not to rely on it, as it was free to do.
3. Did the Board treat Mr. Kaimondo unfairly by permitting "reverse order questioning" at his hearing?
[21] Mr. Kaimondo claims that the Board's general practice of allowing a refugee protection officer to question a claimant before having a chance to recount the basis of his or her claim, whether through counsel or directly, is unfair. He submits that the case law in this Court supports his argument.
[22] In fact, in Benitez v. Canada (Minister of Citizenship and Immigration), 2006 FC 461, [2006] F.C.J. No. 631, Justice Richard Mosley found that the Board's practice (as set out in its Guideline 7) is not unfair; nor does it fetter the discretion of Board members to follow the procedure that best suits the circumstances of each case (see paras. 127-128, and 171). Further, Justice Mosley held that a claimant must raise issues of fairness at the first reasonable opportunity which, in this case, would be at the beginning of the hearing before the Board. Mr. Kaimondo raised no objection to the order of questioning before the Board. Nor does he claim that the order in which he was questioned at the hearing had any adverse consequences for him.
[23] Accordingly, I must reject Mr. Kaimondo's argument on this point, and dismiss his application for judicial review.
[24] Given my conclusions on the first two issues, I decline to certify a question on the third issue - the order of questioning - as Mr. Kaimondo urged me to do. He does not suggest that the order of questioning affected the findings of fact made by the Board. Accordingly, I have no basis for concluding that the outcome of his claim would have been any different had the Board not followed Guideline 7. In these circumstances, I do not believe it would be appropriate to certify a question.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
- The application for judicial review is dismissed.
- No question of general importance is stated.
FEDERAL COURT
NAME OF COUNSEL ANDSOLICITORS OF RECORD
DOCKET: IMM-7260-05
STYLE OF CAUSE: FENGAI KAIMONDO v. MCI
PLACE OF HEARING: Toronto, Ontario
APPEARANCES:
| Patrick Roche |
|
| Mary Matthews
|
SOLICITORS OF RECORD:
| PATRICK J. ROCHE Toronto, ON |
|
| JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, ON
|