Date: 20061220
Docket: IMM-3169-06
Citation: 2006 FC 1516
BETWEEN:
SEILA PRAK
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT
PINARD J.
[1]
This is an application for judicial review of a decision of
the Refugee Protection Division of the Immigration and Refugee Board (the IRB)
dated April 12, 2006, ruling that the applicant is not a “Convention refugee”
or a “person in need of protection” within the meaning of sections 96 and 97 of
the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).
[2]
The
IRB rejected the claim for refugee protection, concluding that the applicant’s
credibility was tainted and that his behaviour was not consistent with that of
a person having a subjective fear of persecution.
Amendment of the
Personal Information Form
[3]
Relying
on Chahal v. Canada (M.C.I.), [1999] F.C.J. No. 1482 (T.D.) (QL), the
applicant submits that the IRB erred in criticizing him for not having amended
his Personal Information Form (PIF) to include events which happened after he had
filed it.
[4]
I
agree with the respondent that Chalal does not apply in the case at bar,
since in that case the applicant had failed to note in his PIF something which
was not directly connected to his claim. The allegation to the effect that the
applicant’s parents were visited by someone who was looking for him involves
evidence which is very important for the applicant’s claim, and it was
therefore reasonable for the IRB to draw a negative inference from the fact
that the applicant did not amend his PIF to add this particular fact.
Problems with the
interpreter
[5]
The
applicant submits that, in reviewing the IRB decision as to his credibility,
the Court should take into consideration the fact that at the hearing he
testified through an interpreter who had significant difficulties with the English
language.
[6]
From
the minutes of the hearing, it is clear that the interpreter was not entirely
comfortable in English and made many minor mistakes in grammar. However, I am
not satisfied that the quality of the interpretation was so bad that the
applicant was not heard or that the IRB’s assessment of the applicant’s
credibility was affected. In reaching this conclusion, I rely on the fact that
when the IRB could not properly understand the English translation, the
interpreter repeated it in French.
The United Nations
report
[7]
The
applicant submits that the IRB did not take into consideration the report of
the Special Representative of the United Nations for Cambodia. I agree
with the applicant that the IRB incorrectly noted that there was no evidence to
the effect the United Nations were interested in the problem of land
distribution. The document entitled “Advisory Services and Technical
Cooperation in the Field of Human Rights: Situation of Human Rights in Cambodia”
(UN Doc. E/CN.4/2005/116, December 20,
2004),
was before the IRB, and the report mentioned that the Special Representative
was concerned about the situation of peasant farmers in Cambodia, considering
the cases in which they were victims of violence in conflicts over land.
[8]
Although
the report mentioned that the Special Representative was concerned about the
problem of land distribution, this is not conclusive evidence that state agents
were still interested in the applicant.
Credibility
[9]
After
reviewing the evidence, I am not satisfied that the IRB, a specialized tribunal,
could not reasonably reach the conclusions it did (see Aguebor v. Canada
(M.E.I.) (1993), 160 N.R. 315, at pages 316 and 317 (F.C.A.)). A tribunal’s
impression that the claimant is not a credible witness may sometimes effectively
amount to a finding that there is no credible evidence to support his or her claim
for refugee protection (see Sheikh v. Canada (M.E.I.), [1990] 3 F.C.
238, at page 244 (C.A.)). It is trite law that in matters of credibility
and the assessment of facts, it is not up to this Court to substitute its view
for that of an administrative tribunal such as the IRB when, as in this case,
the person seeking judicial review fails to establish that the tribunal
rendered a decision based on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard for the material before it.
Delay in making the
claim for refugee protection
[10] The
respondent submits that the applicant does not have a subjective fear of
persecution, because he waited more than three months before claiming refugee
protection.
[11] To the extent
that the claim is based on section 96 of the Act, the applicant concedes that
any delay is a factor from which the IRB may draw a negative inference about a claimant’s
subjective fear of persecution. However, the applicant submits that he had no
reason to be afraid until the moment his visa expired, that is, on December 10,
2005.
[12] This argument
must fail, as the applicant did not wait until December 10,
2005
to claim refugee protection. He made his claim on September 27, 2005. The
applicant explained that he was waiting to see if the situation in Cambodia would
improve. However, the respondent notes that the applicant testified that he had
decided at the end of June to remain in Canada to make a claim
for refugee protection. In the circumstances, I am of the view that it was open
to the IRB to determine that the applicant’s behaviour was not consistent with
that of a person with a subjective fear of persecution.
[13] Finally, with
regard to the application of section 97 of the Act, an analysis on the basis of
this provision became unnecessary once the IRB concluded that the applicant’s
credibility was tainted. In Kaur v. Minister of Citizenship and Immigration,
2005 FC 1710, my colleague Mr. Justice de Montigny wrote the following:
[16] With respect to the lack
of a distinct analysis regarding subsection 97(1), the Board was entirely
justified not to undertake that exercise from the moment where it determined
that the applicant was not credible. If the Board was correct on that point, it
is clear that the applicant could not have been considered to be a person in
need of protection. Incidentally, that is what this Court has determined on
numerous occasions: Bouaouni v. Canada (Minister of Citizenship and
Immigration),
[2003] F.C.J. No. 1540; 2003 FC 1211 (QL); Soleimanian v. Canada(Minister of Citizenship and
Immigration),
[2004] F.C.J. No. 2013; 2004 FC 1660 (QL); Brovina v. Canada(Minister of Citizenship and
Immigration,[2004]
F.C.J. No. 771, 2004 FC 635 (QL).
[14]
In
my opinion, the IRB’s findings concerning the credibility of the applicant and
his subjective fear of persecution are not patently unreasonable. The application
for judicial review is therefore dismissed.
“Yvon
Pinard”
Ottawa,
Ontario
December
20, 2006
Certified true translation
Michael Palles
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3169-06
STYLE OF CAUSE: SEILA PRAK v. THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
PLACE
OF HEARING: Montréal,
Quebec
DATE
OF HEARING: November 22, 2006
REASONS
FOR ORDER BY: The
Honourable Mr. Justice Pinard
DATED: December
20, 2006
APPEARANCES:
Nino Karamaoun FOR THE
APPLICANT
Alexandre
Tavadian FOR THE RESPONDENT
SOLICITORS
OF RECORD:
KD
Lawyers - Avocats FOR THE
APPLICANT
Montréal, Quebec
John
H. Sims, Q.C. FOR THE
RESPONDENT
Deputy
Attorney General of Canada
Email this Content