Date: 20050207
Docket: IMM-1601-04
Citation: 2005 FC 151
Ottawa, Ontario, February 7, 2005
PRESENT: THE HONOURABLE MR. JUSTICE BEAUDRY
BETWEEN:
REZK, SAFENAZ SOBHY SAID
GUIRGUIS, ERENY ANTOUN ABDALLA
HANNA, JOHN ANTOUN ABDALLA
HANNA, MARINA ANTOUN ABDALLA
Applicants
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application under subsection 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act), for judicial review of a decision of the Refugee Protection Division of the Immigration and Refugee Board (the Panel) dated January 20, 2004. In its decision, the Panel determined that the applicants did not meet the definition of "Convention refugee" under section 96 or of "person in need of protection" under section 97.
ISSUES
[2] The issues are:
1. Did the Panel make a patently unreasonable error in finding that the applicants had failed to establish a well-founded fear of persecution?
2. Did the applicants get a fair and equitable hearing?
3. Should the application for judicial review be dismissed because the applicants did not file their application for leave within the prescribed time?
[3] For the following reasons, I answer no to the first question and yes to the second one; there is no need to examine the third. The application for judicial review will be dismissed.
[4] The applicant is a mother of three children. They all claimed refugee status in Canada following events that allegedly occurred in their country of origin, Egypt, between 1988 and their departure in June 2003. They claim to have a well-founded fear of persecution for reasons of opinion and religion, as members of the Coptic Christian community.
IMPUGNED DECISION
[5] The Panel found that the applicant had failed to establish that she was a victim of persecution in her country and that it would be dangerous for her and her children to go back there. The Panel used the definition of persecution found in Rajudeen v. Canada (Minister of Employment and Immigration) (1984), 55 N.R. 129 (F.C.A.) and determined that the facts described by the applicant constituted discrimination, not persecution.
[6] The Panel also indicated that the fact that the applicant's husband was still in Egypt, going about his business activities in a medical clinic and working within the apparatus of state as a doctor to the police force, raised a serious doubt as to the applicant's subjective fear of being persecuted in the event of her return to Egypt.
[7] Last, the Panel saw no parallel between the applicant's situation and the problems experienced by Coptic Christians according to the documentary evidence in "The Copt's Magazine" she submitted.
ANALYSIS
1. Did the Panel make a patently unreasonable error in finding that the applicants had failed to establish a well-founded fear of persecution?
[8] It is settled law that it is for the Panel to assess the oral and written evidence before it and to attach the appropriate weight to that evidence (Aguebor v. Canada (Minister of Employment and Immigration) (1993), 160 N.R. 315 (F.C.A.) pages 316 and 317). The standard of review is that of the patently unreasonable decision.
[9] In Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689, page 723, the Supreme Court of Canada held that an applicant must establish a well-founded fear of persecution in order to have a successful claim. There are two parts to the test: subjective fear and objective fear. In Rajudeen, supra, at page 134, Mr. Justice Heald said:
. . . The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear. . . .
In other words, the subjective component is based on the assessment of the applicant's credibility, and the objective fear is based on the documentary evidence submitted in support of the claim.
[10] In Kamana v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 1695 (T.D.) (QL), Madam Justice Tremblay-Lamer confirmed that a lack of evidence going to the subjective element is a fatal flaw which in itself warrants dismissal of the claim, since both elements - subjective and objective - must be met.
[11] In the case at bar, the Panel found that the applicant had failed to establish that she had a subjective fear of persecution. It based its decision on Rajudeen, supra:
The first question to be answered is whether the applicant had a fear of persecution. The definition of Convention Refugee in the Immigration Act does not include a definition of "persecution". Accordingly, ordinary dictionary definitions may be considered. The Living Webster Encyclopedic Dictionary defines "persecute" as:
"To harass or afflict with repeated acts of cruelty or annoyance; to afflict persistently, to afflict or punish because of particular opinions or adherence to a particular creed or mode of worship."
The Shorter Oxford English Dictionary contains inter alia, the following definitions of "persecution":
A particular course or period of systematic infliction of punishment directed against those holding a particular (religious belief); persistent injury or annoyance from any source.
[12] In Ihaddadene v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 756 (QL), the Federal Court of Appeal distinguished between discrimination and persecution at paragraph 2:
The Refugee Division did not doubt the female appellant's testimony. However, it refused her claim on the ground that the "unpleasantness" to which the appellant referred in her testimony, the insults, shoving and even assaults to which she was subjected did not amount to persecution, even if the various incidents related by her were taken cumulatively or added up. The Board was of the opinion that the climate of intolerance that was observed as a result of the rise of fundamentalism had brought about discrimination, and not persecution.
[13] However, in Soto v. Canada (Minister of Employment and Immigration), [2002] F.C.J. No. 1033 (T.D.) (QL), Madam Justice Tremblay-Lamer added at paragraph 12 that:
Discriminatory acts may constitute persecution if they are sufficiently serious and occur over such a long period of time that it can be said that the claimant's physical or moral integrity is threatened.
[14] Here, the Panel characterized the fact that the applicants had been the victims of insults and hair pulling as discrimination, not persecution. The Panel then doubted the applicants' subjective fear because the husband had stayed in Egypt. There are no reviewable errors here.
2. Did the applicants get a fair and equitable hearing?
Interpretation quality
[15] The right to a fair and equitable hearing is an integral part of the Canadian legal system. In fact, section 14 of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, enacted as Schedule B to the Canada Act, 1982 (U.K.), 1982, c.11, expressly provides the right to an interpreter:
| Interpreter
14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.
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Interprète
14. La partie ou le témoin qui ne peuvent suivre les procédures, soit parce qu'ils ne comprennent pas ou ne parlent pas la langue employée, soit parce qu'ils sont atteints de surdité, ont droit à l'assistance d'un interprète.
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[16] The same right is provided for in sections 93 and 283 of the Federal Courts Rules:
| Examining party to provide interpreter
93. (1) Where a person to be examined on an oral examination understands neither French nor English or is deaf or mute, the examining party shall arrange for the attendance and pay the fees and disbursements of an independent and competent person to accurately interpret everything said during the examination, other than statements that the attending parties agree to exclude from the record.
Administrator to provide interpreter
(2) Where an interpreter is required because the examining party wishes to conduct an oral examination for discovery in one official language and the person to be examined wishes to be examined in the other official language, on the request of the examining party made at least six days before the examination, the Administrator shall arrange for the attendance and pay the fees and disbursements of an independent and competent interpreter.
Oath of interpreter
(3) Before aiding in the examination of a witness, an interpreter shall take an oath, in Form 93, as to the performance of his or her duties.
Interpreter
283. Rule 93 applies, with such modifications as are necessary, to the use of an interpreter at trial.
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Interprète fourni par la partie qui interroge
93. (1) Si la personne soumise à un interrogatoire oral ne comprend ni le français ni l'anglais ou si elle est sourde ou muette, la partie qui interroge s'assure de la présence et paie les honoraires et débours d'un interprète indépendant et compétent chargé d'interpréter fidèlement les parties de l'interrogatoire oral qui sont enregistrées selon le paragraphe 89(4).
Interprète fourni par l'administrateur
(2) Lorsqu'une partie désire procéder à l'interrogatoire oral d'une personne dans une langue officielle et que cette dernière désire subir l'interrogatoire dans l'autre langue officielle, la partie peut demander à l'administrateur, au moins six jours avant l'interrogatoire, d'assurer la présence d'un interprète indépendant et compétent. Dans ce cas, l'administrateur paie les honoraires et les débours de l'interprète.
Serment de l'interprète
(3) Avant de fournir des services d'interprétation, l'interprète prête le serment, selon la formule 93, de bien exercer ses fonctions.
Interprètes
283. La règle 93 s'applique, avec les adaptations nécessaires, à l'utilisation d'interprètes lors de l'instruction.
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[17] In Mohammadian v. Canada (Minister of Citizenship and Immigration), [2001] 4 F.C. 85 (C.A.), it was confirmed that the analysis of section 14 of the Charter developed in R. v. Tran, [1994] 2 S.C.R. 951, generally applies, with a few distinctions, to proceedings before the Refugee Protection Division.
[18] The considerations in Mohammadian, supra, are the following: (1) while the interpretation need not be perfect, it must be continuous, precise, competent, impartial and contemporaneous; (2) no proof of actual prejudice is required in order to obtain relief; (3) complaints about the quality of the interpretation must be made at the earliest opportunity.
[19] This is a question of fact. The Federal Court of Appeal endorsed what Mr. Justice Pelletier said in Mohammadian, supra (paragraph 28 of the decision of the Trial Division):
. . . If the interpreter is having difficulty speaking the applicant's own language and being understood by him, this is clearly a matter which should be raised at the first opportunity. On the other hand, if the errors are in the language of the hearing, which the applicant does not understand, then prior complaint may not be a reasonable expectation.
[20] In the case at bar, this issue was not raised in oral argument, but the applicant claimed in her factum that the Panel member noticed the translator was unable to translate certain terms having to do with military command. From a review of the transcript, it is clear that the interpreter was not sure how to translate the applicant's husband's military ranks. The applicant never questioned the interpreter's competence at the hearing.
[21] Nevertheless, I did consider the quality of the interpretation. In the case at bar, the problems mainly had to do with determining what the applicant's husband's military rank was. This was not a determining factor in the Panel's decision.
[22] As for the applicants' objections to the Panel member's interventions, in my view the interventions did not affect the applicant's rights.
Admissibility of certain evidence
[23] The following principles were set out by the Court of Appeal in Mancia v. Canada (Minister of Citizenship and Immigration), [1998] 3 F.C. 461 (C.A.) at paragraphs 14, 15 and 16:
¶ 14 The general principles are well settled. The objective in any given case is to ensure that at the end of the process an applicant has been treated fairly considering the circumstances of the case, the nature of the proceeding, the rules under which the decision-maker is acting, the subject-matter which is being dealt with, and so forth (see Tucker L.J. in Russell v. Duke of Norfolk, [1949] 1 All E.R. 109 (C.A.), at page 118; Dickson J. [as he then was] in [1980] 1 S.C.R. 1105">Kane v. Board of Governors (University of British Columbia), [1980] 1 S.C.R. 1105, at page 1113).
¶ 15 The principles applicable with respect to disclosure of evidence not within the knowledge of the person were formulated as follows by Dickson J. in [1980] 1 S.C.R. 1105">Kane, supra, at pages 1115-1116:
. . . each party to a hearing is entitled to be informed of, and to make representations, with respect to evidence which affected the disposition of the case.
¶ 16 I must confess I prefer this formulation to that often quoted of Lord Loreburn in Board of Education v. Rice, [1911] A.C. 179 (H.L.), at page 182:
They can obtain information in any way they think best, always giving a fair opportunity to those who are parties in the controversy for correcting or contradicting any relevant statement prejudicial to their view. . . . (Emphasis added)
[24] In the case at bar, the Panel used as evidence a report of the Canadian embassy in Egypt, dated May 19, 2003. This report was produced and used in examining the applicant. The applicant argued that the Panel breached the rules of procedural fairness by introducing a document with which she was unfamiliar. In support of her arguments, the applicant quoted from a paper by Denis Lemieux, entitled "La nature et la portée du contrôle judiciaire" [The nature and scope of judicial review], in Droit public et administratif, Collection de Droit 2003-2004, vol. 7, Ed. Yvon Blais, Cowansville, 2003, page 181:
[TRANSLATION] The person must, however, be informed of the general substance of any report or testimony that might be used in making the decision. More generally, the person must also have access to all of the prejudicial facts and all of the factors that could influence the decision.
[25] Contrary to the applicant's arguments, the respondent pointed out that the documents were disclosed to her on October 10, 2003 (see letter of Refugee Protection Officer Michel Colin and attached documents, pages 90 to 110 of the Panel's Record).
[26] Even giving the applicant the benefit of the doubt and assuming she had no knowledge of the document before the hearing, I still find that there was no violation of the principles of natural justice. After being told that the applicant had not received a copy of the documents, the Panel suspended the hearing for the applicant and her representative to read and photocopy the documentation. After the break, the Panel offered counsel for the applicant time to discuss this evidence with his client, but he declined (page 273 of the Panel's Record):
[TRANSLATION]
(SUSPENSION)
PRESIDING MEMBER
- Okay, we're back, we're recording.
PRESIDING MEMBER (to counsel)
Q. Did you want to make photocopies of . . . of the documents?
A. I didn't make any copies, I . . . I've seen it.
- Okay.
A. I didn't have time . . .
- But . . .
A. . . . to discuss it with my client, of course, the document is several pages long.
- Um-hum.
A. So, I don't know what the Panel wants to do about it, it isn't . . . it was never received.
- No, but I wouldn't want you to complain now that . . . that you haven't seen them, that you haven't examined them, that you haven't read them.
A. I've read it, but I haven't had time to discuss it with my client.
Q. All right. Do you want to take . . . do you want to discuss it with your client? I can give you the time you need. I will leave, and you can use the interpreter.
A. It's already 3:30, it's okay . . . it . . .
- Sir, when it's your client's life . . .
A. Yes.
- . . . that's at stake . . .
A. I . . . I'm okay.
. . .
3. Should the application for judicial review be dismissed because the applicants did not file their application for leave within the prescribed time?
[27] Given my conclusions with respect to the first two issues, there is no need to examine this one.
[28] The applicants submitted the following questions for certification:
1. Did the Board commit procedural irregularities during the applicant's hearing?
2. Did the Board commit an unreasonable error or draw arbitrary conclusions in its assessment of whether the applicant and her family had been persecuted?
3. Did the Board commit a patently unreasonable error in its assessment of the applicant's subjective fear of returning to her country?
[29] The respondent objected to these questions because they were not of general importance. I agree with the respondent that these questions do not transcend the facts of this case. These questions, therefore, do not warrant certification.
ORDER
THE COURT ORDERS that the application for judicial review be dismissed. No question is certified.
"Michel Beaudry"
Judge
Certified true translation
Peter Douglas
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-1601-04
STYLE OF CAUSE: REZK, SAFENAZ SOBHY SAID
GUIRGUIS, ERENY ANTOUN ABDALLA
HANNA, JOHN ANTOUN ABDALLA
HANNA, MARINA ANTOUN ABDALLAv.
MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: December 13, 2004
REASONS FOR ORDER
AND ORDER: THE HON. MR. JUSTICE BEAUDRY
DATE OF REASONS: February 7, 2005
APPEARANCES:
Marc Chénard FOR THE APPLICANTS
Hugo Hamelin
Thi My Dung Tran FOR THE RESPONDENT
SOLICITORS OF RECORD:
Marc Chénard FOR THE APPLICANTS
Montreal, Quebec
John H. Sims, Q.C. FOR THE RESPONDENT
Deputy Attorney General of Canada
Montreal, Quebec
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