Date: 20041020
Docket: IMM-9652-03
Citation: 2004 FC 1450
OTTAWA, ONTARIO, OCTOBER 20, 2004
PRESENT: THE HONOURABLE MADAM JUSTICE MACTAVISH
BETWEEN:
SOKONA DIALLO
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Sokona Diallo is a citizen of Mali. She originally entered Canada on a Visitor's Visa, and subsequently made a claim for refugee protection. This claim was rejected by the Immigration and Refugee Board. The Board found Ms. Diallo's assertion that her family was trying to force her into an arranged marriage not to be credible.
[2] Ms. Diallo now seeks judicial review of the Board's decision, asserting that the Board denied Ms. Diallo her right to effective representation, by failing to provide her counsel with translated copies of certain documents in advance of the hearing. According to Ms. Diallo, this breached the common law duty of fairness, and, as well, violated Ms. Diallo's rights under the Official Languages Act, R.S.C. 1985, c. 31 (4th Supp.).
[3] Ms. Diallo further submits that the Board's credibility findings were patently unreasonable, that it was selective in its consideration of the country condition information and that it erred in refusing to take the Chairperson's Gender Guidelines into account. Finally, Ms. Diallo says that the Board's decision displays a degree of indignation and anger at Ms. Diallo sufficient to create a reasonable apprehension of bias on the part of the presiding member.
The Language Issues
[4] Ms. Diallo's primary language is French, although she speaks some English. In her initial dealings with Citizenship and Immigration Canada, Ms. Diallo indicated that French was her preferred language of communication.
[5] Ms. Diallo was assisted in her refugee claim by Katherine Boulet. Ms. Boulet is an Anglophone lawyer, who evidently speaks little or no French. As a consequence, when Ms. Diallo completed her Personal Information Form, she indicated that she wanted to have her refugee hearing conducted in English. Ms. Diallo also indicated that she would also require French-language interpretation services at the hearing.
[6] On February 28, 2003, Ms. Kathy Peterson, a Case Management Officer at the Board sent Ms. Boulet a package of documents relating to Ms. Diallo's claim. Most of the documents were written in French. The covering letter was in English, and stated:
Written comments or submissions on this information are to be received by the Registrar as soon as possible and no later than twenty (20) days prior to the scheduled date of the proceedings. Any such submissions should clearly set out any substantive objections regarding the admissibility of the evidence and any objections which will be raised at the outset of the proceedings.
The letter also advised that Ms. Diallo could call Ms. Peterson if she had any questions. Neither Ms. Diallo nor Ms. Boulet made any written submissions regarding these documents, nor was Ms. Peterson contacted by phone.
[7] On March 27, 2003, Ms. Peterson sent a second package of documents to Ms. Boulet, again including documents written in French. Once again, neither Ms. Boulet nor Ms. Diallo made any submissions in response, nor did they call Ms. Peterson.
[8] On August 5, 2003, the Board sent Ms. Boulet a list of documents which were to be filed at the hearing. Most of the documents related to country conditions in Mali. Also on the list were documents relating specifically to Ms. Diallo, including the port of entry notes and documents relating to her visa application.
[9] Three days later, Ms. Boulet wrote to the Board, stating:
Further to your letter of August 5th, 2003, please be advised that I do not speak or read French and will, therefore, require that all material be forwarded to me in English.
[10] It is common ground that Ms. Boulet had a telephone discussion with the Refugee Protection Officer some time shortly after this letter was sent. Ms. Boulet and the RPO evidently agreed that the RPO would rely primarily on English documentation, and that if any French language documents were referred to at the hearing, the documents would be translated at that time.
[11] It should be noted that neither Ms. Boulet nor the RPO have filed affidavits in this proceeding. Rather, both parties rely on the submissions that were made to the Board in closing argument. In other words, there really is no evidence before the Court to support either party's position as to what was said.
[12] Ms. Diallo's refugee hearing took place on September 26, 2003. At the commencement of the hearing, the presiding member started by addressing the parties in English, and then appeared to correct himself, stating "pardon, on va le faire en français". The hearing then proceeded in French, without objection from either Ms. Boulet or Ms. Diallo. Ms. Diallo concedes that she waived her right to have her hearing take place in English. Because she implicitly agreed to a hearing in French, Ms. Diallo also concedes that she is not entitled to rely on Rule 28 (2) of the Refugee Protection DivisionRules, to insist that the Minister's documents be translated.
[13] Instead, Ms. Diallo submits that given her discussions with the RPO in advance of the hearing, it was a breach of procedural fairness for the Board not to provide Ms. Diallo and her counsel with translations of the documents. Ms. Diallo further submits that her rights under the Official Languages Act were breached in this case. Each argument will be considered in turn.
Was There a Breach of Procedural Fairness?
[14] Ms. Diallo submits that given the way in which this matter unfolded, the failure of the Board to provide English translations of the disputed documents amounted to a breach of procedural fairness.
[15] The respondent submits that whatever rights Ms. Diallo may have had to have documents translated into English, these rights were waived when the documents were introduced into evidence, without objection from Ms. Diallo or her counsel.
[16] In order to properly consider this issue, it is necessary to have some understanding of how the hearing proceeded.
[17] In the course of questioning Ms. Diallo, the RPO did refer to specific French documents from time to time. These documents were not always translated, and no objection was made by counsel for Ms. Diallo to the fact that translation was not always being provided.
[18] In response to a question from the RPO, Ms. Diallo testified that she knew nothing about her biological father other than his name. The RPO then confronted her with a copy of her visa application, signed by Ms. Diallo, which listed her father's address and also indicated his current marital status. It was obvious that the document was being put to Ms. Diallo in order to impeach her testimony and impugn her credibility. However, no objection was made by Ms. Diallo or her counsel to the document being used in this fashion.
[19] Some 28 pages further on in the transcript, there is a discussion between the presiding member and Ms. Boulet about Ms. Diallo's visa application form. The presiding member questioned Ms. Diallo's claim that she had never seen the visa application document bearing her signature. Ms. Boulet referred to the fact that she was an Anglophone, and that the documents were in French. She also made reference to her discussions with the RPO in advance of the hearing, and her understanding as to how the hearing would unfold. She did not, however, object to the documents being considered. Rather, Ms. Boulet confirmed to the presiding member that she had reviewed the visa application with Ms. Diallo with the assistance of an interpreter, in advance of the hearing. Ms. Boulet then offered several possible explanations as to why Ms. Diallo claimed never to have seen it. The hearing then continued.
[20] In closing argument, the RPO noted that the case had been heard in French. While the Board's rules permitted documents to be filed in either English or French, the RPO observed that an interpreter had assisted Ms. Diallo's counsel by translating French language documents into English. The RPO went on to make a number of submissions with respect to the lack of credibility on the part of Ms. Diallo. These submissions were based, in part, on inconsistencies between her oral testimony and some of the documentary evidence.
[21] When it came time for Ms. Diallo's closing submissions, Ms. Boulet took issue with the RPO's version of events leading up to the hearing as it related to the question of language. According to Ms. Boulet, it had always been her understanding that the hearing would take place in English. When she had not been provided with English translations of the documentary evidence, Ms. Boulet says that she wrote her August 8 letter requesting that all material be provided to her in English. When translations were still not forthcoming, she spoke to the RPO, who advised her that reference would primarily be made to English documents at the hearing. If any French language documents were referred to, the RPO reportedly stated that the documents would be translated at that time, and that Ms. Boulet would have the opportunity to discuss the documents with Ms. Diallo, with the assistance of the interpreter.
[22] Ms. Boulet further stated that when she and her client arrived for the hearing, there was no interpreter present. Arrangements were then made for an interpreter. However, Ms. Boulet says, it was the Board's decision to conduct the hearing in French.
[23] Counsel for Ms. Diallo now argues that, in light of the discussions that Ms. Boulet had with the RPO in advance of the hearing, she and her client had the legitimate expectation that documents would be provided in English at the hearing. It is conceded that Ms. Boulet did not object to the hearing proceeding in French. Nor did she object to the introduction of the disputed French-language documents in the course of the hearing.
[24] Before this Court, counsel for Ms. Diallo submits that it was only when the RPO made her final submissions that it became apparent that the documents were being used to undermine Ms. Diallo's credibility. With respect, the transcript simply does not bear this out. It was, or should have been, obvious to Ms. Boulet that the documents in issue were being put to Ms. Diallo for impeachment purposes. If she was of the view that using the documents in this way somehow breached the understanding that she had with the RPO, an objection should have been made at that time.
[25] Further, it is noteworthy that when Ms. Boulet did object in her final submissions, what she objected to was not that the documents were being used to undermine Ms. Diallo's credibility. Rather, what she took issue with was the RPO's characterization of their pre-hearing discussions.
[26] In these circumstances, I am not persuaded that there was any denial of procedural fairness by the Board in relation to the use of the French documents, and that any rights that Ms. Diallo may have had in this regard were waived at the hearing.
Was Therea Breach of the Official Languages Act Here?
[27] Ms. Diallo submits that in proceeding the way that it did, the Board violated Ms. Diallo's rights under sections 15 and 19 of the Official Languages Act.
[28] The parties disagree as to the proper interpretation of these sections, and each made extensive submissions as to how they say that the Act should properly be interpreted. It is not necessary for me to resolve this question here.
[29] It is clear that a party can waive the linguistic rights afforded under the Official Languages Act: see Taire v. Canada (Minister of Citizenship and Immigration), 2003 FC 877. For the reasons articulated in the previous section, I am satisfied that Ms. Diallo waived any rights that she may have had to translations of the documents in issue.
Were the Board's Credibility Findings Patently Unreasonable?
[30] The Board was clearly of the view that Ms. Diallo's testimony was utterly lacking in credibility. Ms. Diallo points to a number of areas in which she says that the Board's assessment of her credibility was flawed. I have carefully reviewed the transcript and considered the arguments advanced by Ms. Diallo. Keeping in mind that the standard of review with respect to credibility findings is that of patent unreasonableness, and subject to my comments below with respect to the issue of the Chairperson's gender guidelines, Ms. Diallo has not persuaded me that the Board erred in its assessment of her credibility.
Failure to Consider the Chairperson's Gender Guidelines
[31] In its reasons the Board observed that since Ms. Diallo's claim was based upon her sex, the Chairperson's Gender Guidelines had to be considered. The Board went on to state "Là encore, le tribunal ne peut les prendre en compte que si le demandeur est crédible. Ce qui n'est pas le cas ici".
[32] The Chairperson's Gender Guidelines recognize that cross-cultural misunderstandings can come into play when gender-based claims are assessed by the Board. In order to minimize the risk of this happening, members are alerted to the effect that social, cultural, traditional and religious norms can have on the testimony of those claiming to fear gender-based persecution.
[33] In this case, the Board's reasoning as to the need to consider the Gender Guidelines is somewhat circular. The Board held that it did not have to consider the applicability of the Gender Guidelines because Ms. Diallo was not credible. However, the Gender Guidelines exist, in part, to ensure that social, cultural, traditional and religious norms do not interfere with the proper assessment of an applicant's credibility.
[34] In this case, the Board was provided with a letter written by Ms. Diallo's mother, imploring her to return to Mali to marry the man who had been selected for her. The Board found this letter to be inconsistent with Ms. Diallo's testimony that her mother was against her being forced into a marriage.
[35] In my view, the Board erred in failing to take into account the impact that social, cultural, traditional and religious norms could have on the actions of a woman in a traditional society such as that which exists in Mali. Similarly, the Board erred in taking these factors into account in assessing Ms. Diallo's limited knowledge regarding the circumstances of male relatives.
[36] While I am satisfied that the Board erred in this regard, the fact is that the Board had many reasons for finding Ms. Diallo not to be credible. I am not persuaded that this error, on its own, provides a sufficient basis for setting aside the Board's decision.
Selective Use of Country Condition Information
[37] Ms. Diallo submits that the Board erred through its selective use of country condition information relating to the issue of forced marriage in Mali.
[38] There is no obligation on the Board to mention every document entered into evidence, and the failure of the Board to mention a particular document does not mean that it did not take the document into account: [1973] S.C.R. 102=">See Woolaston v. Canada (Minister of Manpower and Immigration), [1973] S.C.R. 102 and Hassan v. Canada (Minister of Employment and Immigration), 1992, 147 N.R. 317.
[39] In any event, it was up to Ms. Diallo to satisfy the Board that any well-founded fear of persecution established by the documentary evidence would apply to her, if she were to return to Mali. The fact that the Board found Ms. Diallo's story not to be credible makes the country condition information immaterial: Zhou v. Minister of Citizenship and Immigration, 2003 FC 886.
Was There a Reasonable Apprehension of Bias on the Part of the Presiding Member?
[40] At the conclusion of its reasons, the Board found that Ms. Diallo was "une immigrante déguisée" rather than a true refugee, noting that her testimony was "truffé de mensonges etd'invraisemblances". The Board went on to say "Des demandes comme la sienne discréditent le rôle de la section du statut, qui existe pour venir en aide à ceux qui ont une véritable crainte de persécution dans leur pays". (Emphasis added)
[41] Ms. Diallo submits that in making these comments, the presiding member appears to be angry with her. Further, Ms. Diallo says, the Board's reasoning is 'sloppy and vindictive', noting that the Board mis-cited a case that it relied upon. These actions, coupled with the other errors allegedly committed by the Board, are sufficient, Ms. Diallo says, to create a reasonable apprehension of bias on the part of the presiding member.
[42] The test as to whether a reasonable apprehension of bias exists in a given set of circumstances is well-known. In Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369">[1978] 1 S.C.R. 369, the Supreme Court of Canada described the test as "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude?".
[43] I have addressed the various errors that Ms. Diallo says were committed by the Board earlier in these reasons, and have found that the Board did not make any material errors in its assessment of Ms. Diallo's claim. This leaves the Board's statement that claims like Ms. Diallo's discredit the system, and the fact that it mis-cited a case. In my view, these two matters, along with the failure of the Board to properly apply the Chairperson's Gender Guidelines, would not lead a reasonable person to apprehend bias on the part of the presiding member.
Conclusion
[44] For these reasons, the application is dismissed.
Certification
[45] Ms. Diallo proposes the following questions for certification:
1. Can the duty imposed on every federal court to ensure that a person giving evidence will not be placed at a disadvantage by not being heard in the other official language found in section 15 (1) of the Official Languages Act ever encompass a requirement that a federal institution which has disclosed a document, other than the documents referred to in sections 18 and 19 of the Official Languages Act, in one of the official languages make a translation available to the person giving evidence limited to the documents referred to in section 18 and 19 of the Official Languages Act? (sic)
2. Does the requirement in section 19 of the Official Languages Act that forms used in proceedings before a federal court be in both official languages and the details of the forms be translated on request apply only to federal court forms or does it also apply to federal institution forms filed and served in the proceedings?
Neither of these questions is determinative of the issues in this case, and accordingly, I decline to certify either of them.
ORDER
THIS COURT ORDERS that:
1. This application for judicial review is dismissed
2. No serious question of general importance is certified.
"Anne L. Mactavish" Judge
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9652-03
STYLE OF CAUSE: SOKANA DIALLO v.
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: WINNIPEG, MANITOBA
DATE OF HEARING: OCTOBER 13, 2004
REASONS FOR ORDER: MACTAVISH J.
DATED: OCTOBER 20, 2004
APPEARANCES:
David Matas FOR APPLICANT
Winnipeg, Manitoba
Nalini Reddy FOR RESPONDENT
Department of Justice
Winnipeg, Manitoba
SOLICITORS OF RECORD:
David Matas FOR APPLICANT
Barrister & Solicitor
Winnipeg, Manitoba
Morris Rosenberg FOR RESPONDENT
Attorney General of Canada
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