Date : 20050720
Docket : IMM-7503-04
Citation : 2005 FC 1001
OTTAWA, Ontario, this 20th day of July, 2005
PRESENT: The Honourable Mr. Justice Teitelbaum
BETWEEN :
VAN CHIEU NGYUEN
Applicant
AND :
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
TEITELBAUM, J.
[1] This is an application for judicial review under s. 72(1) of theImmigration and Refugee Protection Act, S.C. 2002 c. 27 (IRPA), of a decision of Puttaveeraiah Prabhakara, a member of the Immigration and Refugee Protection Board (the Board), dated August 11, 2004 in which the Board determined that the Applicant is not a Convention refugee (the Decision).
[2] The Applicant is a forty-one year old male citizen of Vietnam. He fears the Vietnamese government based on his participation in a petition after his and others lands were expropriated. He also fears reprisals relating to his jumping ship in Vancouver midway through a government assigned contract on that vessel.
[3] In 1993, the Applicant and his brother purchased land together in Vietnam. Over time the land increased in value. In late 2000, it is alleged that the local Hai Phong government sought to expropriate the land from the Applicant, his brother, and 21 other families residing in the area without providing adequate compensation. The Applicant participated in a petition against the expropriation. The habitants were threatened with jail or death if they did not agree to the government plans. The expropriation was complete by early 2001.
[4] The Applicant worked on ships as a marine engineer for the government owned Vietnamese Ocean Shipping Company (VOSCO). In April 2001 he was contracted to a Japanese company NISHO. In early September 2001, while docked in Vancouver, the Applicant jumped ship to stay in Canada. Around the same time, the Applicant allegedly learned through a phone conversation with his brother that the Hai Phong government had ordered the Applicant's arrest in August for his role in the land dispute. In addition, VOSCO was now demanding the Applicant's wife pay a US $15,000 fine, allegedly levied against the company by the government of Canada when the Applicant jumped ship. The Applicant was also told he could expect to go to jail for betraying the country.
[5] The Board concluded that the Applicant was not a Convention refugee or a person in need of protection. The Board found that the Applicant lacked credibility, and did not establish either a subjective or objective fear of returning to Vietnam.
[6] The Board impugned the Applicant's credibility on a myriad of grounds, the majority of which will be summarized here. The Applicant's testimony was characterized as unclear, evasive and devoid of details. The Applicant did not produce important documents which could have corroborated his claim, most notably the petition and the government notice evicting him from his land. Nor did the Applicant produce any proof of the $15,000 fine allegedly levied by the Canadian government for which he now fears reprisals. The Applicant could not recall the specific date his land was confiscated, nor recount the contents of the petition he allegedly led with any detail. The Board found it implausible that the government would allow the Applicant to travel out of the country on a government contract if they were genuinely interested in him, and also noted the implausibility that the authorities would wait until August 2001 to pursue the Applicant's arrest when the offending petition was issued in January or February. The Board drew an adverse inference from the omission of the Applicant's August arrest order from the original version of his PIF, noting that it was added more than a year later by amendment. The Applicant also testified that his wife was fired in May 2003 in relation to the $15,000 fine. The Board did not accept that such action would take place as late as May 2003 when the Applicant previously testified that the wife was first approached to pay the fine in October 2001.
[7] The Board noted that three years had passed since the Applicant had signed the petition, and that there was no evidence that any of the other 21 families allegedly party to the petition had experienced any hardship since that time.
[8] The Board further found that the Applicant's delay in claiming undermined the existence of a subjective fear. The Board noted that, even if it were accepted that the Applicant's fears were realized in September 2001, the Applicant still waited four and a half months before initiating his claim.
[9] The Applicant alleges the Board erred by misconstruing the Applicant's testimony, and by denying the Applicant procedural fairness by both refusing his right to an adjournment and counsel, and by the inadequacy of the interpreter at the hearing. I will deal with the procedural issues first.
[10] The Applicant's hearing was adjourned twice, on November 26, 2003 and February 16, 2004. On both occasions the Applicant was ready to proceed, with counsel in attendance. Unfortunately, no Refugee Protection Officer was available and the hearings were adjourned.
[11] The hearing finally proceeded on April 6, 2004. Some confusion occurred between the Applicant and his counsel prior to the hearing. Just days prior to the hearing, in a letter dated April 2, the RPD received notice that Applicant's counsel would no longer be on record because she could not contact the Applicant. The Applicant contends that he travelled from Toronto to Windsor on April 2 in a last ditch effort to contact his counsel, but was finally informed on April 5 of the steps taken to remove counsel from the record. In any event, the Applicant appeared before the Board on April 6 without representation.
[12] The Applicant concedes that, off the record, the Board asked the Applicant if he wanted an adjournment and the Applicant declined. However, the Applicant submits that the Board did not indicate that it would have been inclined to grant the adjournment, and did not inform the Applicant that pursuant to s. 167 of the IRPA he had a right to counsel. The Applicant submits that in the circumstances of this case the Board's erred in not fully informing the Applicant of his rights. The Applicant contends he was prejudiced by virtue of his counsel not being present to adequately respond to questions concerning amendments to his PIF. He submits that these amendments were foreign to him and made at the behest of his counsel.
[13] The Applicant relies on Nemeth v. MCI [2003] F.C.J. No. 776 ("Nemeth") for the proposition that, even where a refugee claimant agrees to proceed unrepresented, the hearing may be unfair where the cumulative effect on proceeding without counsel prejudices the claimant.
[14] The Respondent submits that the circumstances of this case are distinguishable from Nemeth. In Nemeth, the Board failed to respond to a written request for an adjournment, and proceeded despite an ambiguous answer from the Applicant's when asked if they were ready to proceed. Further, the Applicant's in that case were obviously unprepared and left to argue an issue of legal interpretation for which they were not capable. The Respondent notes that, in this case, there was no request for an adjournment of any kind, written or otherwise (in fact, the Applicant explicitly rejected an adjournment), and there were no legal issues to make submissions to.
[15] The Respondent further submits that the Board was under no duty at law to advise the Applicant that an adjournment was possible. In any case, it is reasonable to assume the Applicant would have been aware of the possibility of an adjournment and of his general right to counsel given the history of the two previous adjournments in his case, and particularly given the fact that when specifically asked if he wanted an adjournment he answered 'no', that he was tired of the process and wanted the hearing to proceed.
[16] In his submissions and his affidavit the Applicant himself indicates that he was asked if he would seek an adjournment and declined because he "was too tired with the process and wanted to proceed" (Applicant's Affidavit, para. 9). It is implicit in this remark that the Applicant was aware that an adjournment was possible. As for whether the Board should have informed the Applicant that a request for an adjournment would be considered favourably, I cannot but disagree with this proposition. Indeed, it is possible that such a request may not have been considered favourably. We will never know as the Applicant declined to request the adjournment. Further, I agree with the Respondent that the facts in Nemeth are not analogous to the case at bar. The Board did not act unfairly with respect to the issue of a possible adjournment in this case.
[17] It is not the obligation of the Board to act as the attorney for a claimant who refuses to retain counsel. It is not the obligation of the Board to tell the claimant that he may ask for an adjournment of the hearing and it is not the obligation of the Board to "teach" the Applicant the law on a particular matter involving his or her claim.
[18] The Board is there to hear submissions, decide issues of law and then make a decision in a fair and just manner.
[19] The Applicant submits that he was prejudiced at the hearing by ineffective translation. While the Applicant speaks a North Vietnamese dialect, the translator spoke in a South Vietnamese dialect. The Applicant submits that differences in the dialect made it difficult for him to understand the hearing. The Applicant alleges informing the Board during the hearing of having difficulties understanding, and the Board responding by merely having the interpreter repeat the question. The Applicant claims that, even after the hearing while consulting with his new counsel, he did not understand that the issue of 'delay' addressed his delay in making a refugee claim upon arriving in Canada, thinking instead that it referred to the numerous adjournments of the hearing.
[20] The Respondent submits that the Applicant has not provided any specific examples of his misunderstanding during the hearing. The examples that he cites are not material to any portion of his claim. The Respondent contends that the Applicant has not demonstrated any actual prejudice or denial of participation in the hearing on the basis of inadequate interpretation.
[21] I agree with the Respondent on this point. A reading of the transcript reveals that the interpretation was not always perfect. However, if the interpretation caused material difficulty it is incumbent on the Applicant to show evidence of prejudice or at least potential prejudice. (Tung v. M.E.I. (1991), 124 N.R. 388 (F.C.T.D.) and Mosa v. M.E.I. (1993), 154 N.R. 200 (F.C.A.)). No such evidence was tendered. There has been no review of the tapes by a reviewing interpreter put forward. A reading of the transcript reveals that the delay issue was canvassed thoroughly and without confusion on the part of the Applicant during questioning (see page 30-34 of the transcript). I am concerned with the fact that the Applicant and the interpreter could not always understand each other but, after reading the transcript, I am satisfied that what was meant to be said was finally understood by all parties including the Board member.
[22] The Applicant also alleges in the written submissions the Board misconstrued the Applicant's testimony on six separate occasions but did not raise these points before me. I believe it not necessary to comment on this issue other than to say that the Board's understanding was not patently unreasonable.
[23] I am satisfied that the hearing was conducted in a fair manner. The Board's decision was reasonable based on the evidence before it. Any errors in misconstruing the evidence are not of such a material nature as to warrant overturning the decision.
[24] The Applicant submits that he was treated unfairly by not being given the opportunity to re-examine himself. By the fact that at the end of the hearing, the Applicant was asked by the Board if there was anything further he wanted to say, the Applicant could have made further submissions.
[25] The fact that the Applicant did not make further submissions, indicates he had nothing further to say.
ORDER
The application for judicial review is dismissed. No question for certification was presented to the Court.
"Max M. Teitelbaum"
JUDGE
OTTAWA, Ontario
July 20, 2005
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
DOCKETS : IMM-7503-04
STYLE OF CAUSE : Van Chieu Ngyuen v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: July 11, 2005
REASONS : The Honourable Mr. Justice Teitelbaum
DATE OF REASONS: July 20, 2005
APPEARANCES :
Mr. Ron Poulton FOR THE APPLICANT
Mr. Brad Gotkin FOR THE RESPONDENT
SOLICITORS OF RECORD :
Mamann & Associates
Barristers and Solicitors FOR THE APPLICANT
John H. Sims, Q.C.
Deputy Attorney General
of Canada
Ottawa, Ontario FOR THE RESPONDENT
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