Date: 20020712
Docket: IMM-2620-01
Neutral Citation: 2002 FCT 790
Ottawa, Ontario, the 12th day of July 2002
Present: THE HONOURABLE MR. JUSTICE MICHEL BEAUDRY
BETWEEN:
ANJALAI ERULANDY
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application under section 82.1 of the Immigration Act, R.S.C., 1985, c. I-2 [hereinafter the "Act"] for judicial review of the decision by the Immigration and Refugee Board [hereinafter "the Board"] dated May 2, 2001, determining that the applicant does not meet the definition of "Convention refugee" under subsection 2(1) of the Act.
ISSUE
[2] Did the Board base its decision on an erroneous finding of fact that it made in a
perverse or capricious manner or without regard for the material before it, or in other words, did it make a patently unreasonable decision?
[3] After carefully analyzing all of the evidence and the documentation, I answer that question in the negative.
FACTS
[4] The applicant, who is from Malaysia, alleged that she was a victim of a fear of persecution for reasons of spousal abuse, in particular physical and psychological abuse by her husband.
[5] The applicant is not educated and has never worked.
[6] Two of her daughters reside in Canada. One of them, Yoghagagi Muniandy, was denied refugee status in 1996.
[7] The applicant visited her daughter twice before claiming refugee status for herself.
DECISION CHALLENGED
[8] The Board, consisting of two members, concluded at page 3 of its decision:
Based on the above analysis of the evidence, the panel does not believe that the claimant was a victim of conjugal violence.
DETERMINATION
For all the foregoing reasons, the panel determines that Anjalai ERULANDY is not a "Convention refugee" as defined in section 2(1) of the Immigration Act.
APPLICANT'S ARGUMENTS
[9] The applicant alleged that she did not have a fair hearing since she had difficulty understanding. She complained about the interpreter who spoke an Indian Tamil dialect when she had asked for an interpreter who spoke Malaysian Tamil.
[10] The applicant argued that the Board erred in making the absence of psychological or medical reports a determining factor in its assessment of her testimony.
[11] The applicant submitted that the Board should not have based its decision on the fact that she had not claimed refugee status at the earliest possible opportunity.
RESPONDENT'S ARGUMENTS
[12] Unlike the applicant, the respondent argued that the hearing was conducted in a fair manner and that the applicant's memorandum is not sufficiently substantiated on that point.
[13] The respondent submitted that the applicant could have produced a medical expert to support the allegations that she made.
[14] He also stated that the applicant tried to raise arguments that should have been argued before the Board.
ANALYSIS
(a) Applicable Standard of Review
[15] In this case, the standard is patent unreasonableness. In Conkova v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 300 (QL) (F.C.T.D.), Mr. Justice Pelletier (as he then was) concludes at paragraph 5:
The standard of review of decisions of the CRDD is generally patent unreasonableness except for questions involving the interpretation of a statute when the standard becomes correctness. Sivasamboo v. Canada, [1995] 1 F.C. 741 (T.D.), (1994) 87 F.T.R. 46, Pushpanathan v. Canada, [1998] 1 S.C.R. 982, (1998) 160 D.L.R. (4th) 193. . . .
[16] Here the Board's findings are based on questions of fact and involve the applicant's credibility.
(b) The applicant's credibility
[17] In Aguebor v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 732 (QL) (C.A.), paragraph 4, the Federal Court of Appeal sets out the parameters of judicial intervention when the issue is credibility:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. [...]
[18] The same principle is recognized in Razm v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 373 (QL) (F.C.T.D.), at paragraph 2:
It is common ground, and indeed now trite law, that the Convention Refugee Determination Division has complete jurisdiction to determine the plausibility of testimony. Where the reasons for its decision on credibility must be stated in clear and unmistakable terms, this Court will only interfere in exceptional circumstances.
[19] Similarily, in Cepeda-Gutierrez v. Canada (Minister of Citizenship and Immigration), [1998] F.C.J. No. 1425 (QL) (F.C.T.D.), Mr. Justice Evans states at paragraph 14:
It is well established that section 18.1(4)(d) of the Federal Court Act does not authorize the Court to substitute its view of the facts for that of the Board, which has the benefit not only of seeing and hearing the witnesses, but also of the expertise of its members in assessing evidence relating to facts that are within their area of specialized expertise. In addition, and more generally, considerations of the efficient allocation of decision-making resources between administrative agencies and the courts strongly indicate that the role to be played in fact-finding by the Court on an application for judicial review should be merely residual. Thus, in order to attract judicial intervention under section 18.1(4)(d), the applicant must satisfy the Court, not only that the Board made a palpably erroneous finding of material fact, but also that the finding was made "without regard to the evidence" . . .
[20] From the outset of this case, the Board was clearly concerned with the applicant's credibility (page 1 of the decision):
The panel is aware that domestic violence is a problem in Malaysia. Unfortunately, the claimant was not at all credible. Her testimony was unclear, confused, and replete with major contradictions. . . .
[21] The Board went on to say the following at page 1:
. . . The panel finds her lack of knowledge on these elements cast serious doubts about the general credibility of her claim.
[22] At page 2, the Board said:
The record will show that there are other discrepancies in the claimant's evidence. Given that the above negative findings have already seriously impeached the general credibility of the claim, the panel finds no practical purposes served in detailing them.
[23] These excerpts confirm that the Board had serious doubts about the applicant's credibility. Therefore, I have no intention of intervening.
(c) Applicant's first visit to Canada
[24] The applicant visited Canada twice but did not mention this in her Personal Information Form (PIF). On that point, it is worth noting the Board's comments on pages 1 and 2 of its decision:
The claimant testified that she had never travelled outside of Malaysia before coming to Canada in July 2000. Nevertheless, the notations on page 31 of her passport read "Bearer has previously travelled on passport no: A7510088 issued on 01/08/1995 which has been cancelled and returned." When confronted with this contradiction, the claimant then disclosed that she did visit her daughter in Canada before July 2000 to inform her of the abuses she had suffered . . . .
[25] At pages 353-354 of the certified record, the applicant answered the Board's questions on that point:
Q. Okay, ma'am, but the question was why did you say...why does it say that you have travelled? Page 31 of your new passport it says that you have travelled with your old passport. But you yourself said you have never travelled.
A. I came to travel this child. I came to see this child.
BY MEMBER (to person concerned)
Q. Madame, when?
A. I 'm forgotten long time ago.
Q. So do we understand, madame, madame, would look at the panel please. Thank you. Do we understand that sometime a long time ago you were in Canada, is that correct? Okay.
A. Yes.
[26] The applicant therefore waited three months after her second visit to Canada before claiming refugee status and this was an important factor for the Board, as may be seen at page 1 of its decision:
. . . the panel finds her failure to claim refugee status during her first visit to Canada, and her delay to seek protection following her second arrival in Canada are behaviors [sic] incompatible with someone who has a well-founded fear of persecution.. . . .
[27] At pages 2-3 of its decision, the Board went on to say:
. . . Although the claimant alleged that the purpose of her first visit to Canada was to discuss her problem of spousal abuse with her daughter, she did not ask for protection from Canada. She attributed her failure to claim refugee status to her ignorance about the refugee system. The panel does not accept her explanation, since her daughter in Canada had applied for refugee status in 1996 and should have the knowledge to advise her. Then, the claimant took approximately a 3-month delay following her second arrival in Canada before she claimed refugee status. She offered no reasonable explanations regarding this lengthy delay. It is the view of the panel that an individual with a well-founded fear of persecution would seek protection at the earliest possible opportunity. In the present case, the claimant did not. The panel concluded that the claimant's behaviour in such circumstances is not consistent with one who has a well-founded fear of persecution.
[28] Counsel for the applicant argued that the transcript does not refer at all to the three-month delay that is mentioned in the decision. I note that the notification of claim to be a Convention refugee is dated September 23, 2000, while Citizenship and Immigration's stamp bears the date of October 11, 2000. In the Personal Information Form (PIF), the applicant's date of arrival is July 21, 2000, and the intention of refugee claim, marked as July 21, 2000, is crossed out and replaced with October 11, 2000. This three-month delay is most likely the one the decision-makers were referring to, and even if I were to give the applicant the benefit of the doubt and applied the date of September 23, 2000, there is a significant time gap between the arrival of the applicant in Canada and her claim for refugee status.
[29] When a person is claiming refugee status, delay is an important factor. In Hanna v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 133 (QL) (F.C.T.D.),
Mr. Justice Cullen observed at paragraph 18:
The point was also made that delay in making a refugee claim is a relevant factor to be considered by the Refugee Division in assessing a claim before it. Mr. Justice Marceau, in Heer v. M.E.I., unreported, F.C.A. A-474-87, April 13, 1988 [Please see [1988] F.C.J. No. 330], at p. 1 confirmed that delay in making a claim for refugee status, "is an important factor which the Board is entitled to consider in weighing a claim for such status".
[30] I consider that the failure to claim refugee status at the earliest possible opportunity reinforces the lack of credibility of the applicant's story.
(d) Allegation of a violation of the principles of natural justice
[31] The applicant alleged that she was a victim of a violation of the principles of natural justice since she was not given an opportunity to have a fair hearing. The applicant submitted that she had informed the interpreter of the difficulties she was having in understanding him properly. She therefore fears that she was not heard because the Board's decision did not respond in
advance to this alleged fear. This is an excerpt from pages 300-301 of the certified record:
BY PRESIDING MEMBER (to interpreter)
Q. Mr. Anthony, you were given the opportunity to talk to the claimant before we put on record. Do you understand the claimant?
A. I did.
- Okay, would you please ask the claimant whether she understands you when you speak to him [sic] in Tamil.
A. Yes, I understand (inaudible).
[32] Further on, the following was said at pages 323-324 of the certified record:
BY MEMBER (to person concerned)
Q. When we speak, as we have been doing this morning, and the translation is done for you, do you understand what is being said?
A. I understand in this here.
Q. Do you understand the questions that have been asked of you so far?
A. I understand. Whatever you speak I do not understand. Whatever you speak in Tamil I understand.
Q. And besides the language, do you understand the nature of the question?
A. You're just talking about all the details.
[33] Moreover, the applicant said that the interpreter spoke a Indian Tamil dialect, whereas the applicant speaks a Malaysian Tamil. She therefore claimed that she had difficulty understanding the interpreter.
[34] The applicant, who never raised this point herself or through her lawyer at the hearing and never pointed out translation errors made by the interpreter, failed to establish that there had been a violation of the principles of natural justice.
[35] In Re Human Rights Tribunal and Atomic Energy of Canada Ltd., [1986] 1 F.C. 103,
Mr. Justice MacGuigan states that a violation of natural justice must be alleged at the earliest practicable opportunity, failing which there is an implied waiver:
However, even apart from this express waiver, AECL's whole course of conduct before the Tribunal constituted an implied waiver of any assertion of a reasonable apprehension of bias on the part of the Tribunal. The only reasonable course of conduct for a party reasonably apprehensive of bias would be to allege a violation of natural justice at the earliest practicable opportunity. Here, AECL called witnesses, cross-examined the witnesses called by the Commission, made many submissions to the Tribunal, and took proceedings before both the Trial Division and this Court, all without challenge to the independence of the Commission. In short, it participated fully in the hearing, and must therefore be taken impliedly to have waived its right to object. (Emphasis added)
[36] It should also be noted that it was only on judicial review that the applicant raised for the first time a violation of natural justice .
(e) Absence of medical evidence
[37] The applicant testified that she had been a victim of physical and psychological abuse. There is no medical evidence to justify those facts and the Board stated at page 2 of the decision:
The claimant was asked questions in relation to her injuries as a result of her husband's alleged beatings. While question 37 of her Personal Information From [sic] (PIF) indicated that she was "badly injured", she testified to the contrary. She said that she had no injuries except internal pain and bruises. When the contradiction was pointed out to her, she replied, "I did not remember". Thus, in a subsequent attempt to better understand her injuries, the claimant was posed questions about her need for medical attention. However, she did not answer the questions directly; she provided a variety of irrelevant responses which made her testimony even more confusing. The panel finds her manner evasive, and this further undermines her credibility.
[38] Also, the Board stated at page 3:
In assessing the credibility of the claimant, the panel did not take into account her lack of education, and alleged "memory problem". However, it is to be noted that the questions posed to the claimant were simple and clear, and they required basic explanations to the alleged facts in her claim. At a certain point, the claimant alluded to having a "memory problem". In the absence of a medical or psychological report to corroborate her allegation, and in light of her lack of general credibility, the panel is left with no trustworthy evidence to accept this as the cause for the many deficiencies in her testimony.
[39] It was not unreasonable for the Board to draw a negative inference from the absence of medical evidence since it was not convinced that the applicant had been a victim of spousal abuse.
[40] I also note that the Board paid careful attention to the facts presented and its decision is well reasoned, referring to clear and specific examples. I have no intention of intervening and accordingly, the application for judicial review is dismissed.
[41] Counsel for the parties did not submit to me any serious question of general importance.
ORDER
THE COURT ORDERS that:
1. The application for judicial review be dismissed.
(signed) Michel Beaudry
Judge
Certified true translation
S. Debbané, LLB
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
DOCKET: IMM-2620-01
STYLE OF CAUSE:
ANJALAI ERULANDY
Applicant
and
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: May 8, 2002
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE BEAUDRY
DATE OF REASONS: July 12, 2002
APPEARANCES:
Michel Le Brun FOR THE APPLICANT
Guy Lamb FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel Lebrun FOR THE APPLICANT
Montréal, Quebec
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
Montréal, Quebec
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