Docket: IMM-2124-11
Citation: 2012 FC 159
Ottawa, Ontario, February 6, 2012
PRESENT: The Honourable Mr. Justice Russell
BETWEEN:
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SAYEDA HASINA KHATUN
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act, SC 2001 c. 27 (Act) for judicial review of the
decision of the Refugee Protection Division (RPD) of the Immigration and
Refugee RPD, dated 8 February 2011 (Decision). In the Decision, the RPD refused
the Applicant’s claim for protection under section 96 and subsection 97(1) of
the Act.
BACKGROUND
[2]
The
Applicant is a 63-year-old citizen of Bangladesh. She is a widow and has
seven children, three of whom live in the UK.
[3]
In
her PIF, the Applicant says that from 2005 to June 2006, she lived in Canada on a
visitor’s visa. On 11 April 2006, she was issued a visitor’s visa for the UK in Ottawa which was
valid until October 2006. Her passport was stamped on 22 May 2006 at Heathrow Airport, in London, UK. The
record does not show how or when she travelled from the UK to Bangladesh. On 20 June 2006
she says that terrorist leaders Montu and Shiraz Mia (Terrorists) came to her
house in Bangladesh with several
other people. They threatened the Applicant, demanding money or they would
interfere with the marriage of her daughter, which was scheduled for early
August 2006. At the hearing into her claim, the Applicant said the Terrorists
ransacked her house, but she did not mention this in her PIF narrative. The
Applicant gave the Terrorists some money she had received from the sale of land
her husband had left her when he died. Though she initially wanted to pursue a
complaint with the police, her children told her to not pursue the matter so that
the wedding could proceed.
[4]
On
15 January 2007, the Terrorists returned and demanded that she give them some
of her properties. They gave her six months to comply. The Applicant went to
the police, but they refused to enter a complaint because the terrorist leaders
were powerful. The police advised her to contact her Member of Parliament (MP),
which she did on 26 January 2007. He said he could not help her because the
Terrorists were powerful.
[5]
On
12 June 2007, the Terrorists came to her house again and demanded she sell them
some of her properties. When she refused, they threatened her. She became
anxious and saw a doctor. On 20 April 2008, the Terrorists came back to her
house with weapons and asked her to sign documents transferring her land to
them. She fainted and, when she came to, they said they would return in a
month. After this incident, the Applicant went to the police again, but they
would not help her. Because she was afraid, she went to Dhaka, Bangladesh on
3 May 2008, to hide at her daughter’s house. On 25 May 2008, the Terrorists
came to her son’s house in Dhaka. The next day the family decided the
Applicant should leave Bangladesh, so they obtained visas for her to travel to Canada and the UK. She went to
the U.K. on 16 July
2008. There, her children (who are UK citizens) did not
encourage her to seek asylum, and she did not know how to do this herself. She stayed
in the UK for five months without claiming asylum until she left the UK in December
2008.
[6]
The
Applicant arrived in Canada on December 15, 2008 and claimed
protection on 23 December 2008. Before the hearing, the Applicant attended an
interview with Dr. J. Pilowsky, a clinical and rehabilitation psychologist. Dr.
Pilowsky produced a report (Pilowsky Report) which indicated that the Applicant
had a number of psychological issues arising from her experiences in Bangladesh. Dr.
Pilowsky’s interview was conducted with the aid of the Applicant’s daughter as
an interpreter and the Applicant submitted the Pilowsky Report to the RPD to
support her claim.
[7]
The
Applicant also submitted a letter from Harun Al-Rashid, an advocate and
president of the Brahmanbaria District branch of the Bangladesh Nationalist
Party in Brahmanbaria
District, Bangladesh (Rashid
Letter). This letter purports to confirm that the Applicant was harassed by
terrorists.
[8]
The
RPD heard the Applicant’s claim on 13 January 2011. At the hearing, the
Applicant, her counsel, the RPD and an interpreter were present. After a break
in the hearing, the Applicant complained about the quality of the
interpretation. The RPD continued with the hearing, using the same interpreter,
but suggested to the Applicant’s counsel that she have an audit done of the
translation.
[9]
At
the end of the hearing, the RPD asked Applicant’s counsel if she intended to
have a translation audit done. She replied that she did, so the RPD gave her
three weeks to obtain a recording of the hearing, have the audit done, and
provide written submissions. The Applicant did not have an audit done but provided
written submissions on 2 February 2011. In her written submissions, the
Applicant requested an extension of time to have the audit completed. The RPD denied
this request. The RPD considered the evidence before it and made its Decision
on 8 February 2011. The RPD notified the Applicant of its decision by letter
dated 2 March 2011.
DECISION
UNDER REVIEW
[10]
The
RPD first set out the Applicant’s allegations and found she had established her
identity based on her Bangladeshi passport and Canadian visa. The RPD said that
the determinative issues in her claim were credibility and state protection. The
RPD said that it had considered all of the evidence and submissions, the
Applicant’s post-hearing submissions, and the IRB Chairperson’s Guidelines,
entitled Women Refugee Claimants Fearing Gender-Related Persecution: Update
(Guidelines).
Interpretation
[11]
The
RPD noted that after the afternoon break at the hearing, Applicant’s counsel had
indicated that the quality of interpretation was inadequate. The Applicant’s
daughter, who was attending the hearing, had told counsel that there were
errors in the translation. No one had raised any issue with the translation up
to that point. The Applicant had said at the beginning of the hearing that she
understood the interpreter and the interpreter had confirmed that she
understood the Applicant.
[12]
During
the hearing, counsel requested a translation audit. The RPD agreed to give the
Applicant three weeks to have the audit done and submit it with her
post-hearing submissions but she did not provide the audit in those
submissions. With the post-hearing submissions, she asked for additional time
to provide the audit, but the RPD denied the request. The RPD noted this
request was made in counsel’s post-hearing submissions on the afternoon of the
due date set at the hearing.
[13]
The
RPD noted the specific problems counsel asserted with the interpretation: the
interpreter used the third person instead of the first person; she apparently
confused “2006” with “2007” on one point; and there was an issue concerning the
Pilowsky Report. The RPD said that counsel had agreed that the third person
issue was stylistic and not significant. It also said that it did not use the confused
date in any credibility assessment it made. With respect to the Pilowsky Report,
the RPD said that if an error did occur, it was of no significance because the RPD
made no negative inference from the discussion of this report in its analysis
of the Applicant’s credibility.
[14]
The
RPD found that it was satisfied that any interpretation difficulties, if there
were any, did not hinder its ability to properly gauge the Applicant’s
credibility.
Credibility
Inconsistencies
in Testimony
[15]
The
RPD noted that during the hearing, the Applicant provided unreliable testimony
and blamed this on her poor memory. The RPD noted that the Pilowsky Report said
she suffered from a wide array of psychological and mental problems, including
problems with her memory.
[16]
The
RPD found that the Applicant was able to testify adequately, although she appeared
to tire later on in the afternoon. The RPD also noted that she may have had
some minor memory issues, so it could ascribe some of the problems in her
testimony to memory problems. However, the RPD noted that the Applicant had
prepared her PIF with the assistance of counsel and had affirmed that her PIF
was complete, true and correct. The RPD said the Applicant had to take
responsibility for her evidence as a whole.
[17]
The
RPD found the Applicant’s evidence, including her oral testimony, was not
credible. It noted several major concerns.
Oral Testimony and PIF
[18]
The
Applicant was asked to provide a copy of her husband’s death certificate and
will, but at the hearing, she said her home had been ransacked by the
Terrorists and the documents lost. She had not mentioned the ransacking of her
home in her PIF narrative. Because she did not mention this until the hearing,
the RPD found this was an embellishment. She also wrote in her PIF that Harun
Al-Rashid was her MP when she sought his assistance after the January 2007
incident. At the hearing, she said he stopped being an MP before January 2007.
When asked why she wrote to him if he was not her MP, she said that she could not
remember and it might have been an error between her and counsel. Her counsel
had nothing to say on this point.
Oral Testimony and IMM 5611
Form
[19]
In
the form filled out when she initially made her claim (IMM 5611), the Applicant
said that the Terrorists were from the JMB terrorist organization. At the
hearing, she said they were not aligned with any group and were simply extortionists.
Obtaining
the Rashid Letter
[20]
The
Applicant testified that her son had sent her the Rashid Letter. She also
provided a courier envelope at the hearing in which she said the Rashid Letter
had been sent to her. That envelope indicated that Mr. Rashid was the sender.
PIF and the Rashid Letter
[21]
The
Rashid Letter said the Applicant’s properties were captured by terrorists. Her
PIF narrative, however, said there were threats to take her property and she
was forced to sell some of it.
Conclusions on Credibility
[22]
The
RPD found the Applicant had not adequately explained the inconsistencies it had
noted in her testimony. These defects led the RPD to draw negative inferences
as to her credibility. Further, because her testimony as to how she received
the Rashid Letter was inconsistent, because her PIF and the Rashid Letter were
inconsistent, and because she could not establish that Mr. Rashid was who he
said he was, the RPD found the Rashid Letter was not genuine. The RPD noted
documentary evidence before it, IRB Response to Information Request
BGD1035323.E, which said that fraudulent documents are readily available in Bangladesh. It found
that she had submitted a fraudulent document which led the RPD to draw a
serious negative inference as to credibility.
[23]
The
RPD also said that a medical report the Applicant had provided to support her
claim – from Dr. Faraya Alamgir, a physician in Dhaka, Bangladesh (Alamgir
Report) – did not mention the threats she faced. When asked why, the Applicant
blamed the omission on Dr. Alamgir’s memory loss. The RPD did not accept her
explanation, found that the note was not genuine, and drew a serious negative
inference as to the Applicant’s credibility.
[24]
The
RPD drew a further negative inference from her failure to claim asylum in the UK, noting that
the UK is a
signatory to the 1951 Convention Relating to the Status of Refugees and
the 1967 Protocol Relating to the Status of Refugees. The Applicant had
testified that she was busy with her family and that she did not ask about
asylum when she was in the UK. She also said that people told her she
was old and could not claim by herself. Though she was not any younger when she
came to Canada, she said
that her family and the Bengali community had helped with her claim. The RPD
said claimants are expected to claim at the earliest opportunity, rejected the
Applicant’s explanation, and found that she did not truly fear persecution in Bangladesh. It said
that she chose Canada because she preferred to be near her daughter here,
rather than with her children in the UK.
[25]
The
RPD also gave examples of evidence from which it had not drawn negative
inferences. First, the RPD said that, at the end of the hearing, it had asked
the Applicant if she had previously applied for immigration to Canada and she said
she did not remember. The RPD accepted that she may have been tired,
frustrated, and discouraged at the end of the hearing and may have been in such
a poor mental state that she could not answer a simple question.
[26]
The
RPD also did not make a negative inference from the discrepancy between her PIF
and the Pilowsky Report. The Applicant told Dr. Pilowsky that her servants were
harassed by the Terrorists but had not mentioned this in her PIF. She was
unable to explain this discrepancy, but had said she could not remember. This
was one area where counsel had said at the hearing that poor interpretation
skewed the Applicant’s responses. The RPD said it did not make a negative
inference on this point; it said that it was giving the Applicant the benefit
of the doubt after these final questions by the RPD even though the Applicant
appeared able to properly answer questions from her counsel.
No Corroborating
Evidence
[27]
The
RPD pointed out that it is entitled to make negative inferences as to
credibility from the lack of corroborating evidence and drew three negative
inferences as to credibility from the Applicant’s inability to produce documents
which would corroborate her story.
[28]
First,
the Applicant could not provide documentary evidence of the sale of her home. She
claimed she was forced to sell some of her property to pay the Terrorists.
Though she said it was possible to get documents from a land registry which
would document the sale, the Applicant had not provided this evidence in
post-hearing submissions.
[29]
Second,
the RPD asked the Applicant to confirm her assertion that the Terrorists were
well known in her area. She said there were lots of news reports about them in
her area but she was unable to provide any supporting evidence to the RPD at
the hearing or in her post-hearing submissions.
[30]
Third,
the RPD asked if the Applicant could provide independent documentary evidence
that Harun Al-Rashid was actually a former MP. She could not, but the RPD noted
that it would not have expected her to have that information available at the
hearing. Even so, the Applicant did not submit documents corroborating this
allegation with her post-hearing submissions, even though the RPD identified
this issue at the hearing.
[31]
On
the whole, the RPD found the Applicant’s evidence was not credible and was
insufficient to support her claim for protection.
State
Protection
[32]
The
RPD noted that Canada (Attorney General) v Ward, [1993] 2 SCR
689, establishes that refugee protection is a surrogate for the home state’s
protection and can only be properly sought after a claimant has first sought
the protection of her home state. Ward also teaches that there is an underlying
presumption that a state can protect its citizens which can only be rebutted by
clear and convincing proof to the contrary. Further, Carillo v Canada
(Minister of Citizenship and Immigration) 2008 FCA 94 establishes that the
evidence a claimant offers to rebut the presumption must be relevant, reliable
and convincing and must satisfy the decision-maker, on a balance of
probabilities, that state protection is inadequate.
[33]
The
RPD found that, after she was first threatened by the Terrorists, the Applicant
did not complain to the police. She said she thought that if she gave the
Terrorists money that they would leave her alone. She admitted that this was
her mistake and that she should have reported the incident to the police.
[34]
The
RPD found that the Applicant had not attempted to access the protection of her
state at the most critical point in her narrative. The reason she gave for not
doing so – to keep the Terrorists from stopping her daughter’s wedding – was
insufficient justification for failing to notify the police of the threats she
faced.
[35]
The
Applicant claimed she had reported the January 2007 incident to the police, but
the RPD found she could not document this. She also claimed the police did
nothing, issued no report, and told her to go to her MP. Because the RPD found
the Rashid Letter was not genuine, it found she did not go to the MP as she
said she did.
[36]
The
Applicant also said she went to the police after the June 2007 incident and, at
the hearing, the RPD pointed out that she had not indicated this in her PIF. She
then said she was confused, but that she remembered going to the police twice.
The RPD accepted that the Applicant may have been confused about this and did
not draw any negative inferences as to credibility from her late addition of
the story about going to the police in June 2007. However, the RPD found that the
result was that she did not go to the police, which was evidence she did not
seek state protection.
[37]
Finally,
the RPD noted the Applicant said she went to the police after the April 2008
incident, but her son did not report the May 2008 incident to the police. The
Applicant could not provide documentation of the April 2008 visit to the police
because they did nothing and gave her nothing. When the RPD asked why she went
to the police after they failed to protect her before, she said she hoped
things would change. The RPD found this was a reasonable response (see
paragraph 38 of the Decision.)
[38]
Given
the other concerns in regard to credibility and the Applicant’s failure to document
any of her two alleged reports to the police, the RPD found she had not reported
anything to the police. It also noted the Applicant did not provide or
specifically identify any documentary evidence that would indicate that the
police in Bangladesh would not be
willing and able to adequately protect someone like her from extortionists.
[39]
The
RPD found that the claimant had not made efforts to engage the protection of
her own state before coming to Canada and that she had failed to provide clear
and convincing evidence that state protection would not have been adequate if
she had pursued it. Since state protection was available to her, the Applicant
could not have a well-founded fear of persecution, nor could she be a person in
need of protection.
STATUTORY
PROVISIONS
[40]
The
following provisions of the Act are applicable in this proceeding:
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96. A
Convention refugee is a person who, by reason of a well-founded fear of
persecution for reasons of race, religion, nationality, membership in a
particular social group or political opinion,
(a) is outside
each of their countries of nationality and is unable or, by reason of that
fear,
unwilling to avail themself of the protection
of each of
those countries; or
(b) not having
a country of nationality, is outside the country of their former habitual
residence and is unable or, by reason of that fear, unwilling to return to
that country.
…
97. (1) A
person in need of protection is a person in Canada
whose removal to their country or countries of nationality or, if they do not
have a country
of nationality, their country of former habitual residence, would subject
them Personally
(a) to a
danger, believed on substantial grounds to exist, of torture within the
meaning of Article 1 of the Convention Against Torture; or
(b) to a risk
to their life or to a risk of cruel and unusual treatment or punishment if
(i) the person
is unable or, because of that risk, unwilling to avail themself of the
protection of
that country,
(ii) the risk
would be faced by the person in every part of that country and is not faced
generally by other individuals in or from that country,
(iii) the risk
is not inherent or incidental to lawful sanctions, unless imposed in
disregard
of accepted
international standards, and
(iv) the risk is
not caused by the inability of that country to provide adequate health or
medical care.
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96. A
qualité de réfugié au sens de la Convention — le réfugié — la personne qui,
craignant
avec raison d’être persécutée du fait de sa race, de sa religion, de sa nationalité,
de son appartenance à un groupe social ou de ses opinions politiques :
a)
soit se trouve hors de tout pays dont elle a la nationalité et ne peut ou, du
fait de cette
crainte,
ne veut se réclamer de la protection de chacun de ces pays;
b)
soit, si elle n’a pas de nationalité et se trouve hors du pays dans lequel
elle avait sa
résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
…
97.
(1) A qualité de personne à protéger la personne qui se trouve au Canada et
serait personnellement, par son renvoi vers tout pays dont elle a la
nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a)
soit au risque, s’il y a des motifs sérieux de le croire, d’être soumise à la
torture au sens de l’article premier de la Convention contre la torture;
b)
soit à une menace à sa vie ou au risque de traitements ou peines cruels et
inusités dans
le cas
suivant :
(i)
elle ne peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii)
elle y est exposée en tout lieu de ce pays alors que d’autres personnes
originaires
de ce
pays ou qui s’y trouvent ne le sont généralement pas,
(iii)
la menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la menace ou le risque ne résulte
pas de l’incapacité du pays de fournir des soins médicaux ou de santé
adéquats.
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ISSUES
[41]
The
Applicant raises four issues in this case:
1.
Whether
the RPD denied her procedural fairness by providing inadequate interpretation;
2.
Whether
the RPD’s reasons were adequate;
3.
Whether
the RPD’ credibility finding was reasonable;
4.
Whether
the RPD’s state protection finding was reasonable.
STANDARD OF REVIEW
[42]
The
Supreme Court of Canada in Dunsmuir v New Brunswick, 2008
SCC 9, held that a standard of review analysis need not be conducted in every
instance. Instead, where the standard of review applicable to a particular
question before the court is well-settled by past jurisprudence, the reviewing
court may adopt that standard of review. Only where this search proves
fruitless must the reviewing court undertake a consideration of the four
factors comprising the standard of review analysis.
[43]
On
the first issue, the Federal Court of Appeal, in Mohammadian v Canada
(Minister of Citizenship and Immigration) 2001 FCA 191 held at paragraph 4 that
the factors for assessing accurate translation in a criminal context,
enunciated by the Supreme Court of Canada in R. v Tran, [1994] 2 SCR
951,
applied to immigration proceedings. In Singh v Canada (Minister of
Citizenship and Immigration) 2010 FC 1161, at paragraph 3, Justice François Lemieux
summarized the factors as follows:
a.
The interpretation must be precise, continuous, competent,
impartial and contemporaneous.
b.
No proof of actual prejudice is required as a condition of
obtaining relief.
c.
The right is to adequate translation not perfect translation. The
fundamental value is linguistic understanding.
d.
Waiver of the right results if an objection to the quality of the
translation is not raised by a claimant at the first opportunity in those cases
where it is reasonable to expect that a complaint be made.
e.
It is a question of fact in each case whether it is reasonable to
expect that a complaint be made about the inadequacy of interpretation.
f.
If the interpreter is having difficulty speaking an
applicant’s language and being understood by him is a matter which should be
raised at the earliest opportunity.
[44]
The
adequacy of translation is an issue of procedural fairness. As the Supreme
Court of Canada held in Khosa, above, at paragraph 43, issues of
procedural fairness are evaluated on a standard of review of correctness. The
standard of review on the first issue is correctness.
[45]
In
Aguebor v Canada (Minister of Citizenship and Immigration), [1993]
FCJ No 732 (FCA) the Federal Court of Appeal held that the standard of review
on a credibility finding is reasonableness. Further, in Elmi v Canada
(Minister of Citizenship and Immigration), 2008 FC 773, at paragraph 21,
Justice Max Teitelbaum held that findings of credibility are central to the
RPD’s finding of fact and are therefore to be evaluated on a standard of review
of reasonableness. In Wu v Canada (Minister of
Citizenship and Immigration) 2009 FC 929, Justice Michael Kelen held at
paragraph 17 that the standard of review on a credibility determination is
reasonableness. The standard of review on the third issue is reasonableness.
[46]
In
Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador
(Treasury Board) 2011 SCC 62, the Supreme Court of Canada held at paragraph
14 that the adequacy of reasons is not an independent ground for quashing a
decision. Rather, the reasons given are to be evaluated along with the outcome
in an organic process designed to determine if the result is within the range
of acceptable outcomes. So long as the reasons, supplemented by the record,
show that the outcome was reasonable, they will be adequate.
[47]
In
Carillo, above, the Federal Court of Appeal held at paragraph 36 that
the standard of review on a state protection finding is reasonableness. This
approach was followed by Justice Leonard Mandamin in Lozada v Canada (Minister of
Citizenship and Immigration) 2008 FC 397, at paragraph 17. Further, in Chaves
v Canada (Minister of
Citizenship and Immigration) 2005 FC 193, Justice Danièle
Tremblay-Lamer held at paragraph 11 that the standard of review on a state
protection finding is reasonableness. The standard of review on the fourth
issue is reasonableness.
[48]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12 at
paragraph 59. Put another way, the Court should intervene only if the Decision
was unreasonable in the sense that it falls outside the “range of possible,
acceptable outcomes which are defensible in respect of the facts and law.”
ARGUMENTS
The Applicant
The
RPD Provided Inadequate Interpretation
[49]
The
Applicant says that she could not understand all the questions she was asked at
the hearing and that she told the RPD about the problem. Prior to the hearing,
the Applicant was assessed by Dr. Pilowsky who identified a myriad of mental
health and memory issues. The Applicant says that the inadequate interpretation
added to her confusion, memory loss and feeling of anxiousness.
[50]
The
Applicant’s counsel brought the translation problem to the RPD’s attention
after she told him that she was having trouble understanding the interpreter. Though
she objected to the proceedings taking place and requested the services of a
proficient interpreter, the RPD refused her request and completed the hearing
with the same interpreter it had started the hearing with. She says she has not
waived her right to adequate interpretation and that she was denied her right
under section 14 of the Charter to continuous, precise, competent,
impartial and contemporaneous interpretation.
[51]
The
errors in interpretation went to the very essence of the RPD’s rejection of the
Applicant’s claim. The RPD relied, at least in part, on the translation errors
to support its conclusion that she was not credible. As the main reason the RPD
rejected her claim was its finding that she was not credible, her right to procedural
fairness was breached, so the Decision must be reconsidered.
The RPD’s Credibility
Finding was Unreasonable
[52]
The
RPD failed to take the Applicant’s psychological state into account when it
assessed her credibility. The Applicant says that the Pilowsky Report indicated
that she suffers from post-traumatic stress disorder and requires treatment by
a mental health professional. That report includes evidence which was relevant
to the RPD’s credibility determination and which it did not consider:
a.
She
suffers from depression, cognitive difficulties, nightmares, anxiety and other
health issues;
b.
She
suffers from psychological distress marked by post-traumatic anxiety and
depression, and is unable to relax even though she uses medication;
c.
She
uses Novolin, Hyzaar, PMS-Clonazepam, Novofine, Teva-Raberprazole, and
Apo-Metformin to treat her psychological conditions;
d.
Her
symptoms adversely impact her immediate cognitive functioning and she has
problems with memory and concentration.
[53]
The
Applicant argues that, because the RPD accepted that she suffered from chronic
post-traumatic stress disorder, it was obligated to consider the impact of this
condition on the quality of her evidence.
[54]
The
Applicant relies on Min v Canada (Minister of
Citizenship and Immigration) 2004 FC 1676 for the proposition that where
there is medical evidence before the RPD that might explain shortcomings in a
claimant’s testimony, the RPD must consider and give appropriate weight to that
evidence. She says Singh v Canada (Minister of Citizenship and Immigration),
[1996] FCJ No 963 [Singh 1] teaches that it is an error for the RPD
to base its decision on a discrepancy between information given at the port of
entry and information given later in the process without taking into account
the evidence of her psychological state.
[55]
Simply
referring in the Decision to the Pilowsky Report was not sufficient. The RPD
was required to consider whether the Applicant’s psychological circumstance
might help explain any omissions, lack of details, or confusion about events. These
were the exact cognitive errors referred to in the Pilowsky Report. The
Applicant points to Rudaragi v Canada (Minister of
Citizenship and Immigration) 2006 FC 911 to support this position.
[56]
In
this case, the RPD’s treatment of the Pilowsky Report was unreasonable. The RPD
accepted she had difficulty testifying on some points because she could not remember
some things, but also found she was not credible with respect to other
testimony and because she could not remember. This inconsistent treatment of
her condition was unreasonable. The RPD failed to consider whether the
Applicant’s documented and accepted medical state may have led to reluctance on
her part to reveal all of the details of the torture and persecution referred
to in her PIF. This failure renders the Decision unreasonable.
[57]
The
Applicant also points to Fidan v Canada (Minister of
Citizenship and Immigration) 2003 FC 1190 where Justice Konrad von Finckenstein
had this to say at paragraph 12:
In
this case, credibility was also the “linchpin” to the RPD’s Decision.
Nonetheless, the RPD failed to indicate, how, if at all, the psychological
report was considered when making its credibility finding. The RPD was obliged
to do more than merely state that it had “considered” the report. It was
obliged to provide some meaningful discussion as to how it had taken account of
the applicant’s serious medical condition before it made its negative credibility
finding. The failure to do so in this case constitutes a reviewable error and
justifies the matter being returned to a newly appointed RPD.
[58]
The
Applicant says that the principle Justice von Finkenstein enunciated in Fidan
applies in her case. The RPD’s negative credibility finding was central to
its Decision and it did not adequately consider how her medical condition
affected her behaviour when it made its credibility finding. This error means
that the Decision must be returned for reconsideration.
The RPD’s State
Protection Finding was Unreasonable
[59]
The
Applicant further says that the RPD’s finding that she did not rebut the
presumption of state protection cannot stand because it was based upon an
unreasonable credibility finding. The RPD did not make any connection between
the grounds she advanced to support her claim and the evidence that had been
recited or the conclusion that it reached. The RPD only provided a summary of
country conditions regarding the availability of state protection in Bangladesh, but
provided no analysis in support of the conclusion it ultimately reached. She
notes that in Derivishi v Canada (Minister of
Citizenship and Immigration) 2006 FC 354 Justice Carolyn
Layden-Stevenson said at paragraphs 21 and 22 that
Merely stating the evidence of the parties and stating a
conclusion does not constitute adequate reasons. A decision maker must set out
the findings of fact and the principal evidence upon which these findings were
based. The reasoning process followed must be delineated: Via
Rail Canada Inc. v. Lemonde, [2001] 2 F.C. 25 (F.C.A.) at para. 22.
The applicants are entitled to the
benefit of the officer’s reasons as to why they failed to rebut the presumption
of state protection on the evidence they adduced (which was apparently accepted
by the officer). … [T]he application for judicial review will be allowed.
[60]
Here,
the RPD erred when it made only a cursory reference to the risk in this
application and did not consider the totality of the evidence, particularly the
evidence going to the Applicant’s mental state. She says there is no indication
the RPD considered the persecution that she suffered or looked at her particular
situation. Based on the evidence set before the RPD, this oversight amounts to
an error in law.
The
Respondent
Interpretation
[61]
The
Respondent says the Decision clearly shows that the Applicant was given the
opportunity to have an audit of the hearing done and have that audit considered
before the RPD made its final decision. The Applicant failed to take advantage
of this opportunity and has failed to provide a reasonable explanation for this
failure, so there is no procedural fairness issue in this case.
Assessment of the Evidence
[62]
The
RPD considered the Pilowsky Report and applied the Guidelines when it heard and
determined this case. While the Guidelines are important to assist the RPD in
understanding the effects of persecution on women, they cannot cure major
credibility problems in a witness’s evidence. Further, the RPD was not
obligated to excuse inconsistencies and other problems with the Applicant’s
evidence simply because she has a psychological condition. A psychological
report cannot act as a cure-all for all the deficiencies in a claimant’s
evidence. The Court should defer to the RPD, since the appropriate weight to be
given evidence is within the RPD’s jurisdiction.
[63]
The
Supreme Court of Canada has clearly said that deference is to be afforded to
credibility findings made by the trier of fact who has had the opportunity to
hear oral evidence first-hand. In R v Gagnon 2006 SCC 17, the Supreme
Court of Canada held at paragraph 20 that
Assessing
credibility is not a science. It is very difficult for a trial judge to
articulate with precision the complex intermingling of impressions that emerge
after watching and listening to witnesses and attempting to reconcile the
various versions of events. That is why this Court decided, most recently in H.L.,
that in the absence of a palpable and overriding error by the trial judge, his
or her perceptions should be respected.
[64]
In
this case, the RPD gave reasons for finding that the Applicant’s evidence lacked
credibility and its conclusions were open to it on the evidence. None of the
Applicant’s arguments show a palpable and overriding error and the Applicant has
not shown any reason for this Court to interfere with the RPD’s Decision in
this case.
ANALYSIS
[65]
The
Applicant makes a series of allegations of reviewable error that are not borne
out by an objective reading of the Decision. Indeed, some of the Applicant’s
argument contains serious inaccuracies about what the record shows. For the
reasons that follow, I conclude the RPD afforded sufficient procedural fairness
to the Applicant and that the RPD’s credibility findings and findings regarding
state protection are reasonable.
Fairness
with Respect to Interpretation
[66]
The
Applicant is correct in stating that questions of adequate interpretation raise
issues of procedural fairness. This means that the appropriate standard of
review on this issue is correctness.
[67]
The
Applicant submits that she was not afforded the appropriate level of procedural
fairness. She says she did not receive adequate interpretation but it seems to
me that the RPD thoroughly and fairly addressed this issue in its Decision. It
noted that, after the afternoon break, counsel indicated that the Applicant’s
daughter spoke to him and indicated that the quality of interpretation was
inadequate. The RPD also noted in the Decision that neither the RPD, counsel,
the interpreter or the Applicant brought up any issue regarding the
interpretation until that point in the proceedings.
[68]
The
Applicant now submits that “[e]ven though the counsel objected to the
proceedings taking place – he continued with the hearing.” The Applicant also
submits that “[t]he applicant’s counsel brought to the attention of the RPD
member that there were problems with the interpretation and requested services
of a proficient interpreter.” From these submissions it appears she is alleging
that her counsel requested both that the hearing stop and that a new
interpreter be assigned. After reviewing the transcript, I do not think this is
the case.
[69]
The
following passage from the transcript is rather lengthy (see page 261 of the
CTR). However, much, if not all of it, is relevant to the issue at hand: whether
the RPD adequately addressed the Applicant’s concerns about the adequacy of the
interpretation and afforded her appropriate procedural fairness on this issue.
COUNSEL FOR CLAIMANT [CC]: I just have a preliminary
issue to deal with. I have some concerns about the quality of interpretation,
with all due respect to the interpreter ---
MEMBER [M]: Okay.
CC: --- that has been provided. The
Claimant’s daughter who speaks English brought to my attention two, although
she said there were others but she couldn’t remember them because she wasn’t
documenting them.
M: M’hm.
CC: She said in a couple of occasions,
the years were not translated correctly. For example, 2006 was said instead of
2007. The other one had to do with what was being asked by the Member just
before -- just before we broke and that had to deal with the question
concerning Dr. Pilowski’s report apparently was translated as did the servants
harass her, meaning the Claimant and that’s obviously not what’s written -- I
know that’s not what the Member said and it’s not what’s written in the PIF and
that is a fairly serious error.
The other concern I had which I didn’t
state, although it was apparent during the course of the translation, is that
the interpreter was talking in the third person pretty much the whole time.
M: M’hm.
CC: And I don’t think that’s -- maybe I
ought to have brought that. I was letting that slide but I don’t think that
that’s appropriate because interpretation, as I’m sure the Member knows,
according to the Federal Court should be contemporaneous and ---
M: Adequate.
CC: --- adequate.
M: It’s the test.
CC: Yes. And I have concerns whether or
not there may have been other errors which we’re not aware of.
M: Are you making a formal motion?
CC: Yes.
M: Okay. Nothing was indicated in the
first part of the hearing as to any issue with the interpretation. The two
issues that you mentioned I understand that there’s some confusion from time to
time and I can certainly, you know, separate just what may be a slight
confusion or temporary confusion over a year from any potential serious
credibility issue.
I’m confident that -- I mean it’s my
impression so far that the interpretation has been adequate. So at this point I
would have to say no to -- to your -- well, you haven’t asked for anything in
particular but for any ---
CC: Well, I would ask that the -- that
-- I would ask that the recording that the -- that the proceedings be audited
by another interpreter to ensure that ---
M: Well, then you’re free to request
the tape and to ---
CC: Okay. Well, I’m just -- okay.
M: Yeah, you’re free to request the
tape and then if you want, I guess you might as well do post-hearing
submissions in writing rather than orally. So at that point perhaps you can,
you know, listen to the tape or have an audit done and if you think that
there’s a -- if it reveals some other issues, then put it in your submissions
and I will evaluate it at that time.
CC: Okay. Well, ---
M: But right now my impression is so
far that interpretation has been adequate.
CC: The interpreter should not be
speaking in the third person. That’s not -- I think that’s inappropriate.
M: Okay. How would that -- what do
you mean by that?
CC: Well she says she went to her son,
not like my son. I asked my son. Her son asked.
M: Okay. I don’t think that leads to
any misunderstanding by me as to the gist of the testimony. I think that’s
stylistic and I don’t think that derogates from the adequacy at least
apparently for me so far of the quality of interpretation.
CC: Okay. So I just want to make it
clear that I’m, you know, formally putting the objection on the record to the
quality of interpretation because I’m sure as the Member is aware I’m obligated
to put that objection on the record as soon as I’m aware of it. Otherwise, I
may be precluded from raising it in later proceedings if that’s necessary.
M: Okay. Does that indicate you were
not aware of it until -- during the first part of the hearing?
CC: I wasn’t aware that there were those
translation errors until the daughter spoke to me in the break.
M: Yeah, okay.
CC: I was willing to let the third
person slide because, as the Member says, it may not necessarily affect your
understanding of what Ms. Khatun is saying.
M: All right.
CC: But I mention that only because I think
that’s part of the bigger picture. I mean if that’s going on and there are
other errors going on, then I think that I’m obligated to bring that -- I’m
obligated to raise that.
M: So you have done. And you have
done so now. You complied with your obligations.
CC: Thank you.
M: You’re welcome.
[70]
In
my view, after reading the transcript, Applicant’s counsel did not request that
the hearing be stopped or that a new interpreter be provided. What is apparent
from the transcript is that the Applicant raised an objection to the
interpretation and made a request for an audit of the translation.
[71]
It
is clear that the RPD considered counsel’s request. The RPD stated that the
Applicant could order a tape of the hearing and decide whether or not to have
an audit done. The RPD stated that counsel could then put any concerns
regarding the translation into written post-hearing submissions.
[72]
The
following exchange further demonstrates that the RPD was alive to the
interpretation issue by providing the Applicant with the requested amount of
time in order to conduct the audit and make submissions:
CC: I don’t have any further questions.
M: Okay. So are you going to actually
do that interpreter audit as you suggested?
CC: I am, yes.
M: All right. So I would suggest that
you do any submissions at that time, okay?
CC: That’s fine.
M: All right. How long do you need?
CC: Three weeks because I have to do the
audit.
M: Three weeks, all right.
CC: Well, yeah ---
M: I have a calendar. So today is
January 13. So 13 and 21 is 33 (sic). That makes it -- there’s only 31
-- that means February 2nd.
CC: That’s fine.
[…]
M: […] All right. So ma’am, when I
receive your lawyer’s submissions and various motions and such, I will consider
it and then I will make a decision. […]
[73]
It
is clear that Applicant’s counsel requested three weeks in order to have the
audit done and to make post-hearing submissions. The RPD granted an extended
period of three weeks and even noted in its Decision that such time period is
longer than the typical period of one or two weeks to provide post-hearing submissions.
[74]
The
RPD gave the Applicant an opportunity to raise any further concerns regarding
the adequacy of the interpretation but she failed to do so. Although counsel
requested an extension of time to perform and provide the audit, the RPD reasonably
denied that request.
[75]
I
note that the CTR indicates that Applicant’s counsel requested a recording of
the hearing the day after the hearing. There is no indication that any delays occurred
in sending that recording to the Applicant.
[76]
The
Decision also indicates that the RPD took into consideration the specific
translation issues raised by counsel at the hearing. There is no reason to
believe that, had the Applicant put forward any further concerns regarding the
adequacy of the interpretation, the RPD would not have considered those
submissions before rendering its Decision. It is also telling, I think, that
the Applicant has placed no evidence before me concerning the inadequacy of the
translation that was not specifically dealt with in the Decision. She had every
opportunity to do this, but has declined to provide an audit or any other evidence
to show specific inaccuracies material to the Decision. Consequently, the Court
has no evidence before it to demonstrate that the translation was not adequate.
[77]
I
conclude that the RPD was alert to the issues and concerns raised by the
Applicant regarding the translation. It was unreasonable for the Applicant
(represented by counsel) to fail to take advantage of an opportunity afforded
to her and then claim that the RPD did not provide adequate procedural
fairness. The RPD provided an adequate level of procedural fairness in the
circumstances and I concluded that no breach occurred.
[78]
It
is my view that the Applicant understands this perspective very well because,
at the oral hearing before me she raised a new point that was not in her
written submissions. She now says that it was procedurally unfair for the RPD
not to grant the extension of time that counsel requested to complete the audit
on the grounds that
Unfortunately, the timeframe that I had
indicated at the conclusion of the proceedings on January 13, 2011 is not
enough time to complete the audit process as I have not been able to obtain the
complete report from the interpreter as of this date due to other obligations
that the interpreter had when I contacted the interpreter.
[79]
Counsel
for the Applicant only raised this issue at the hearing, so that Respondent’s
counsel was taken entirely by surprise and indicated that she was not in a
position to deal with it.
[80]
The
RPD gave reasons in the Decision for refusing the request for an extension of
time:
The Panel indicated, and counsel agreed,
that interpretation needs to be adequate, and is not necessarily expected to be
perfect. In that regard, counsel was given an extensive period, three weeks
after the hearing, to provide such audit. Such audit was not provided with the
submissions, and counsel therein requested additional time to provide said
audit. Such request was denied. Counsel was given an extended period of three
weeks to provide the submission and audit, if he chose to provide same, and
indicated at the hearing that such time frame would be satisfactory. The Panel
notes that such time period is longer than the typical period of a week or two
to provide post-hearing transmittals. Further, counsel only requested an
extension of time for performing and providing said audit within his
submissions, which were only provided on the afternoon of the due date of his
post-hearing submissions.
[81]
Applicant’s
counsel before me could easily have alerted Respondent’s counsel to this new issue
prior to the hearing, and could have given some indication that she intended to
raise it. The fact that she did not, placed the Respondent at a severe
procedural disadvantage. As Justice Dawson said in Al Mansuri v
Canada (Minister of
Public Safety and Emergency Preparedness) 2007 FC 22 at paragraph
16,
…the new issues have nothing in common with the issues upon which
the Court granted leave. It is an entirely new case. Given that Parliament has
provided that an application for judicial review may only be brought with leave
under the Immigration and Refugee Protection Act, in
my view caution must be exercised when allowing new issues to be raised that
were not the subject of the leave application.
See also Trujillo
v Canada (Minister of Citizenship and Immigration) 2006 FC 414
at paragraphs 7 and 8.
[82]
In
addition, there is simply not enough evidence before me to decide whether the
RPD’s refusal of an extension of time was reasonable in terms of the criteria enumerated
in section 37 of the Refugee Protection Division Rules SOR/2002-228:
|
37. (1) A
party who wants to provide a document as evidence after a hearing must make
an application to the Division.
Written application
(2) The
party must attach a copy of the document to the application. The application
must be made under rule 44, but the party is not required to give evidence in
an affidavit or statutory declaration.
Factors
(3) In
deciding the application, the Division must consider any relevant factors,
including:
(a) the
document’s relevance and probative value;
(b) any
new evidence it brings to the proceedings; and
(c) whether
the party, with reasonable effort, could have provided the document as
required by rule 29.
|
37. (1) Pour
transmettre, après l’audience, un document à la Section pour qu’elle
l’admette en preuve, la partie en fait la demande à la Section.
Forme de la demande
(2) La
partie fait sa demande selon la règle 44 et y joint une copie du document,
mais elle n’a pas à y joindre d’affidavit ou de déclaration solennelle.
Éléments à considérer
(3) Pour
statuer sur la demande, la Section prend en considération tout élément
pertinent. Elle examine notamment :
a) la
pertinence et la valeur probante du document;
b) toute
preuve nouvelle qu’il apporte;
c) si
la partie aurait pu, en faisant des efforts raisonnables, le transmettre
selon la règle 29.
|
See also Nagulesan v Canada (Minister of
Citizenship and Immigration) 2004 FC 1382 at paragraphs 15 to 17.
[83]
The
Applicant provided the RPD with very little by way of explanation for the interpreter’s
delay and what efforts counsel had made to meet the initial deadline. In view
of the explanation that was placed before the RPD, I cannot say that the
refusal to grant an extension was unreasonable or, consequently, that a breach
of procedural fairness occurred as a result.
Treatment of the Pilowsky Report and the
Applicant’s Psychological Condition
[84]
The
Applicant submits that the RPD failed to take her psychological state, as shown
by Dr. Pilowsky’s report, into account when it assessed her credibility. I
disagree.
[85]
Early
in its analysis regarding the Applicant’s credibility, the RPD discusses her
psychological state and the Pilowsky Report specifically:
The Panel at this point will note that
the claimant frequently during the hearing provided unreliable testimony, and
blamed it on her poor memory. The Panel does note the psychological report in
Exhibit C-2, which does mention that the claimant suffers from an extremely
wide array of psychological and mental problems, one of which was problems with
memory. The Panel will first note that the claimant on the whole, in the Panel’s
observation, was able to testify adequately, although she appeared to tire
later on in the afternoon. It appeared to the Panel, who is not a doctor or
psychologist, that the claimant may have had some minor memory issues. Thus
the Panel on certain occasions herein can ascribe some issues to memory
problems. However, the claimant did prepare her PIF with the assistance of
counsel, affirmed that her PIF was complete, true and correct, and does have to
take responsibility for her evidence, on the whole. [Emphasis added].
[86]
The
RPD clearly acknowledged the Pilowsky Report and the Applicant’s specific
psychological state. The RPD also noted that the PIF was prepared by the
Applicant with the aid of counsel and that the Applicant affirmed that her PIF
was complete, true and correct. Just because the Applicant may suffer from
cognitive and psychological problems does not mean that credibility is not an
issue or that all inconsistencies can be attributed to those problems. The RPD
must still assess credibility, and provided it takes into account the evidence
of cognitive or emotional impairment, the Court must be loath to interfere
because the Court does not have the advantage of seeing and hearing the witness
testify.
[87]
Several
of the RPD’s many negative credibility findings were a result of
inconsistencies between the Applicant’s testimony and her PIF. In one case, the
RPD found that the inconsistencies were a result of an embellishment at the
hearing and not due to any memory loss. However, in another case, the RPD
accepted that the Applicant may have been confused and did not remember, and
the RPD did not draw a negative inference as to credibility.
[88]
Reading
the Decision as a whole, it is clear that the RPD examined each inconsistency
and made a determination as to the Applicant’s credibility. The RPD clearly
took into account all the circumstances, including the Applicant’s medical and
emotional issues, the preparation of her PIF with counsel’s assistance, and the
pressures and stress of the hearing.
[89]
In
my view, all the cases the Applicant relies on are distinguishable from the
facts before me.
[90]
The
Applicant relies on Min, above, for the proposition that where there is
medical evidence before the RPD that might explain shortcomings in an
applicant’s testimony, the RPD must consider and give appropriate weight to that
evidence. In this case, as mentioned above, the RPD clearly acknowledged and
considered the medical evidence provided. Indeed, the RPD even refused to draw
a negative inference as to credibility at one point because of the Applicant’s
memory problems as set out on the Pilowsky Report. This was not a case like Min,
where the RPD did not even refer to the report at all.
[91]
The
Applicant also relies on Singh 1, above, for the proposition that it is
an error for the RPD to base a decision on a discrepancy between information
given at the port of entry and information given later in the process without
taking into account the evidence of the Applicant’s psychological state. Again,
the case at bar is distinguishable. In Singh, the RPD neglected to refer
to a psychiatric evaluation which stated that at the time the notes were made
by the immigration officer, the claimant was suffering form post-traumatic
syndrome. In this case, the RPD not only mentioned the Pilowsky Report, but
clearly kept the report in mind when making its credibility determinations.
[92]
Finally,
with regards to the quoted passage from Fidan above, it must be noted
once again that the facts of this case are distinguishable. In Fidan,
Justice von Finckenstein stated that the RPD was obligated to provide some
meaningful discussion as to how it had taken account of the applicant’s serious
medical condition before it made its negative credibility finding. The RPD
failed to do so in Fidan and judicial review was granted.
[93]
In
the present case, the RPD meaningfully discussed how it took into account the
Applicant’s medical problems. The RPD addressed the issue early in its
credibility analysis and kept it in mind at each individual negative
credibility finding.
[94]
In
this case, the Applicant tries to rely on the Pilowsky Report and the RPD’s
alleged ignorance of it to explain away all of the negative credibility
findings. However, as stated by the Respondent, no psychological report could
act as a cure-all for deficiencies in the Applicant’s evidence.
State Protection and Credibility
[95]
The
Applicant submits that the RPD’s finding that she did not rebut the presumption
of state protection cannot stand because the RPD based this finding on an
unreasonable credibility finding. This argument must fail because I have
concluded above that the RPD did not err in finding that the Applicant was not
credible.
[96]
The
Applicant also submits that the RPD only provided a summary of country
conditions regarding the availability of state protection in Bangladesh but provided
no analysis in support of its ultimate conclusion. She relies on Dervishi v Canada (Minister of
Citizenship & Immigration), 2006 FC 354 to argue that the RPD erred
in this regard. This argument is not tenable for two reasons.
[97]
First,
the onus was on the Applicant to rebut the presumption of adequate state
protection by adducing “relevant, reliable and convincing evidence which
satisfies the trier of fact on a balance of probabilities that the state
protection is inadequate.” See Carillo, above, at paragraph 30. The
Applicant did not discharge this burden and the RPD was free to conclude that
state protection was available in this case.
[98]
Second,
the paragraph in Dervishi the Applicant relies on is clearly
distinguishable from the facts in this case. In Dervishi, Justice
Layden-Stevenson held at paragraph 22:
The applicants are entitled to the
benefit of the officer’s reasons as to why they failed to rebut the presumption
of state protection on the evidence they adduced (which was apparently accepted
by the officer). …[T]he application for judicial review will be allowed.
[99]
Unlike
Dervishi, here the RPD did not accept any of the evidence the Applicant
adduced. The RPD was clear that the reason the Applicant failed to rebut the
presumption of state protection was her failure to provide corroborating
evidence, such as police reports, to substantiate her attempts to seek state
protection. She also did not provide or specifically identify any documentary
evidence that would indicate the police in Bangladesh would not be
willing or able to adequately protect a widow such as her from alleged
extortionists.
CONCLUSION
[100] In my view, the
Applicant was provided with adequate procedural fairness and failed to take
advantage of the opportunity provided to support allegations of inadequate interpretation.
[101] It also seems
clear that the RPD took into account the Applicant’s particular mental and
psychological state when assessing inconsistencies between her testimony and
her PIF. The RPD’s determinations on credibility, which are findings of fact
and deserving of deference, are all reasonable based on the evidence before it.
[102] Finally, the RPD’s
determination that the Applicant failed to adduce clear and persuasive evidence
to rebut the presumption of adequate state protection was also reasonable based
on the RPD’s reasonable negative inferences as to her credibility.
[103] For all these
reasons, this application for judicial review must be denied.
[104] Counsel agree
there is no question for certification and the Court concurs.
JUDGMENT
THIS COURT’S JUDGMENT
is that
1.
The
application is dismissed.
2.
There
is no question for certification.
“James
Russell”
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