Docket: IMM-8249-11
Citation:
2012 FC 777
Toronto, Ontario, June 19, 2012
PRESENT: The Honourable Mr. Justice Zinn
BETWEEN:
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GEORG MARMA
JIMS MARMA
(A.K.A. JIMS DAVID MARMA)
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Applicants
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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
[1]
The
Refugee Protection Division of the Immigration and Refugee Board determined
that the applicants were not credible and were not Convention refugees or
persons in need of protection.
Background
[2]
Georg
Marma and his brother Jims Marma are citizens of Syria. The Board accepted their father as a refugee
in 2006. They entered Canada in 2010 and claimed
refugee status: Georg on the basis of political affiliation and Jims on the
basis of religious persecution. Their separate claims were heard together and
a decision rendered on each.
Georg Marma
[3]
Georg
alleged that he was an active member of the Zawa Party. He would attend
meetings, distribute pamphlets and advocate for the Party.
[4]
Georg
alleges that on April 8, 2009, he was interrogated for three hours because
pamphlets had been distributed the previous day in the city of Hasaka. On June
25, 2009, he was seen distributing pamphlets by a Syrian security guard.
Shortly after, he was taken by undercover agents and interrogated for seven
hours. Before being released, he was questioned, including questions about his
family, slapped, and told to stay away from politics. When he told this to his
Party, they told him to be careful.
[5]
On
August 27, 2009, Georg was arrested. He says this is because his best friend
was shot and killed when trying to illegally enter Iraq through the
Syrian border. Georg was again questioned for seven hours and told to work as
an informer for the Syrian government. The authorities wanted him to write
reports on a number of known Assyrian activists.
[6]
On
the night of December 1, 2009, Georg was blindfolded and taken to a security
office. He was asked if he had collected any information. When he told them
he had not, they threatened his life. He promised the officer that he would
work harder. At that point, Georg says that he knew he had to leave Syria. He
obtained a Canadian visitor’s visa and arrived in Canada on January
22, 2010. On February 5, 2010, he claimed refugee status.
Jims Marma
[7]
Jims
was not involved in politics. His claim is based on his Christian beliefs and
the fact that he converted one of his friends, Rashid, to Christianity. Rashid
is the son of a Major in the Syrian security forces.
[8]
On
August 1 and 15, 2010, Rashid’s father summoned Jims to the security
headquarters in Hasaka for interrogation. After the second interrogation, Jims
ceased all religious activities. Instead, he focused his energy on being
reunited with the woman he loved. She lives in and is a citizen of the United
States.
She initiated a sponsorship for Jims and on November 2, 2010, Jims went for an
interview at the American Embassy. His sponsorship was approved, but he could
not leave Syria because he
and his family were on a list. By bribing a Syrian officer, Jims was able to
be temporarily taken off that list. On February 18, 2011, he was on a flight
to America.
[9]
When
Jims arrived at his destination, he was greeted by his fiancé. To his
surprise, she was accompanied by her boyfriend. She told Jims that she could
not marry him because she was going to marry her new boyfriend. Jims, in a
state of shock and disbelief, called his relatives in Canada who told him
to come and claim refugee protection.
[10]
On
February 25, 2011, Jims came to Canada and claimed protection
at the border.
The Decision
[11]
The
Board did not believe the applicants and did not believe they would be
persecuted or suffer harm in Syria.
[12]
When
the Board asked Georg why he was arrested in 2009, Georg responded that it was
because he was with the Zawa Party and had been spied upon. The Board noted
that Georg, in his Personal Information Form (PIF), stated that he was arrested
because pamphlets were distributed in Hasaka. When the Board asked him if he had
delivered pamphlets, he said he had not. Then, when the Board asked why he did
not recall that this was the reason he had given for his arrest, he answered
that he was not good with dates.
[13]
Additionally,
the Board noted that although Georg mentioned a number of people he believed
were spies for the government, he did not mention Albert Zaya, an alleged spy
mentioned in his PIF. When this was put to Georg, he explained that Albert was
not a member of the Zawa Party and that is why he did not list him.
[14]
The
Board noted that at the hearing Georg said he was arrested on two occasions.
When he was asked why his PIF narrative indicated that he was arrested on four
occasions, his only explanation was that he was confused with the dates. The
Board did not accept this, noting that Georg was not being asked for the dates,
only the number of arrests in the year before he came to Canada. Also,
counsel’s submission that Georg made this inconsistent statement because he was
not well educated, was not accepted.
[15]
At
question 9 of his PIF, Georg indicated that he had never been arrested. When
this was put to him, Georg’s consultant claimed responsibility for the
mistake. The Board did not accept this, stating that it was Georg’s document
and he had reviewed it and accepted that everything was true.
[16]
Finally,
the Board noted that there was no independent evidence corroborating Georg’s
non-credible allegations. As a result, Georg’s claim was rejected.
[17]
As
for Jims, the Board stated that there was confusion as to the name of the
church he attended in Syria. Before the hearing, Jims’ counsel wrote
to amend the name of the church appearing in his PIF from St. George to Lady
Virgin. At the hearing, when Jims was questioned by his counsel he, through
the interpreter, called his church St. Mary. Later, he called it Lady Virgin.
Jims further explained that there were two churches: Lady Virgin and St. George
and that Lady Virgin and St. Mary were two names for the same church.
The Board did not accept these inconsistencies and found it was implausible
that a converting Muslim would not know the name of his church.
[18]
Also,
the Board noted that a letter filed in evidence from Jims’ Diocese did not make
any mention of his role in converting a friend. This letter was said to be
insufficient evidence on its own to advance his claim.
[19]
The
Board continued its reasoning by noting that Jims stated his friend converted
by attending church and going to class. Although Jims could not initially
recall anything else his friend had done, when he was asked about a ceremony
mentioned in his PIF, he remembered that his friend was baptized. This baptism
was found to be the event announcing his friend’s conversion and was at the
core of his alleged problems. As a result, the Board did not accept that Jims
would have forgotten such a fact.
[20]
For
those reasons, Jims’ claim was refused.
Issues
[21]
The
applicants raised several issues, including the Board’s alleged failures to
deal with the risk associated with the fact that the applicants’ father has
been granted refugee status in Canada some years earlier, and the changing
conditions in Syria. Neither
has merit. I agree with the Minister that the fact that the applicants lived
without incident in Syria for four years after their father was admitted
to Canada as a refugee
belies any suggestion of risk or persecution. The changing conditions in Syria were not an
issue placed squarely before the Board nor were they argued in any detail in
the written memorandum filed. The Board cannot be faulted for not focusing its
attention on it.
[22]
In
my view, there are only two issues that require some examination: The alleged
incompetence of the translation and the alleged mix up in the name of the
church that Jims attended in Syria.
Translation
[23]
The
applicants speak Assyrian and the proceeding was translated as neither speaks
English. They submit that errors in the translation led to their negative
credibility finding.
[24]
First,
they note that many Arabic terms were used by the interpreter. A list of these
terms is provided at pages 5-8 of their memorandum. It is their counsel’s
submission that although these terms might have been understood by the
applicants, some may not have. It is submitted that the interpreter should
have strictly used Assyrian only.
[25]
Second,
the applicants submit that the quality of the interpretation failed to meet the
standard required and was incompetent. They have provided an affidavit from a
person skilled in Assyrian who reviewed the tape of the oral hearing and has
provided many instances where the translation was not word-for-word or where
the statement was not translated at all.
[26]
In
support of the above arguments, the applicants state that their right to an
interpreter covered by section 14 of the Charter was violated. They
cite Mohammadian v Canada (Minister of
Citizenship and Immigration), 2001 FCA 191 at para 4 [Mohammadian],
to argue that a violation of section 14 does not depend on actual prejudice.
Acknowledging that a complaint regarding the interpretation should arise at the
first possible moment, the applicants argue that they were not aware of the
errors until they received the audio recording of the hearing.
[27]
Furthermore,
the applicants cite Neheid v Canada (Minister of
Citizenship and Immigration), 2011 FC 846, which found that “there was
a breach of fairness by reason of unreasonable translation which was material
to the Board's decision.” In that decision, the Court cited Singh v Canada (Minister of
Citizenship and Immigration), 2010 FC 1161 at para 3, that stated:
Both
counsel agree the question of the quality of the interpretation is governed by
the Federal Court of Appeal's decision in Mohammadian v. Canada (MCI),
2001 FCA 191, [2001] F.C.J. No. 916, applying the Supreme Court of Canada's
decision in R. v. Tran, [1994] 2 S.C.R. 951. In my view, the principles
enunciated in Mohammadian may be briefly summarized 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.
[28]
I
agree with the respondent that, although far from perfect, there were no
material errors in the interpretation that impacted the decision. In any
event, any breach was waived by the applicants’ failure to object at the first
opportunity.
[29]
In
R v Tran, [1994] 2 S.C.R. 951 [Tran], the Supreme Court held that
interpretations are never perfect. At paragraph 60, our Highest
Court
wrote:
[I]t
is important to keep in mind that interpretation is an inherently human
endeavour which often takes place in less than ideal circumstances. Therefore,
it would not be realistic or sensible to require even a constitutionally
guaranteed standard of interpretation to be one of perfection. As Steele
explains, at p. 242:
Even
the best interpretation is not "perfect", in that the interpreter can
never convey the evidence with a sense and nuance identical to the original
speech. For that reason, the courts have cautioned that interpreted evidence
should not be examined microscopically for inconsistencies. The benefit of a
doubt should be given to the witness.
[30]
I
have reviewed each of the alleged errors and failures in translation and am of
the view that none impacted the Board’s understanding of the testimonies or the
basis for its specific credibility findings. Since the errors were not
material to the ultimate finding, this Court should not intervene: Fu v Canada (Minister of
Citizenship and Immigration), 2011 FC 155 at para 10.
[31]
In
addition, even if the translation had been found to have reached the level of
incompetence required, I would have found that the applicants had waived their
right to raise this issue, not having raised it at the hearing. First, the
record indicates that both applicants spoke Arabic. They both listed Arabic as
a language they spoke in their PIF and thus the use of a few Arabic words
cannot be objected to now, when it could have been at the hearing. Further, as
it was a language known to the applicants, they understood what the interpreter
was saying.
[32]
Second,
although the applicants did not speak English, their representative did. At a
few places in the transcript the representative corrects the interpreter. This
is evidence that he understood, to some degree, the languages being used. Yet
he did not raise with the Board the issue of the adequacy of the translation.
Further, if as was noted by applicants’ counsel, there are occasions when the
responses and questions failed to properly reflect each other, thus leading to
any informed listener forming the view that the translation was inadequate,
then that situation would have been obvious as well to the representative; yet
no question was raised as to the adequacy of the translation at the hearing.
[33]
For
these reasons I reject the submission that the applicants’ rights were breached
as a result of the incompetent translation.
Church Membership
[34]
In
the following portion of the Board’s decision, a negative inference was drawn
because Jims was found to not recall the name of his church. The main
reasoning behind this finding was because the Board believed there was a
difference between St. Mary and Lady Virgin. The Board wrote:
Again I am satisfied this claimant was
also not a credible witness. Prior to the beginning of the hearing counsel
asked that the narrative be amended by changing the name of the church in
paragraph 2 [from St. George] to Lady Virgin.
Counsel asked the older claimant for the
name of the church in Syria that sent the letter in C-4.
The claimant recalled the name as St. Mary. When asked how the claimant did
not know the name of the church he recalled it was Lady Virgin. He explained
there were two churches he attended St. George and Lady Virgin and the friends
studied at St. George but he attended Lady Virgin. This does not explain
why he thought his church was St. Mary. Further, at the Port of Entry (POE)
in R/A-2, he used St. George.
I find it implausible that any practicing
Christian who fled Syria due to his role in converting
a Muslim would not know the name of the church [emphasis added].
[35]
In
Jims’ affidavit filed before the Court, he writes that: “St. Mary is simply the
Mother of Jesus and is also known as Lady Virgin. Another way of referring to
the same person is Virgin Mother, Mother of Christ, and the Mother of Jesus.
These names are interchangeable as they refer to the same person, Mary the
Mother of Jesus.”
[36]
At
the hearing, this was explained to the Board. At page 281 of the Certified
Tribunal Record the following exchange occurred:
COUSEL
FOR THE CLAIMANTS: Okay
Q.
What about the first
letter from Syria, that is from what church?
A.
St. Mary.
Q.
The letter from the
church, this one, this letter, it’s from what church?
A.
Catholic church.
Q.
Yeah.
A.
St. Mary.
Q.
It’s not St. Mary.
That’s of a Syrian church of the east.
A.
Yes.
Q. Yeah, but it’s not St. Mary.
A.
That’s catholic of St.
March church
MEMBER: Sir, how is it you don’t know the name
of the church you attended in Syria?
CLAIMANT:
Lady Mary.
MEMBER:
How about Lady Virgin.
How
is it you don’t know the name of the church?
CLAIMANT: Yes.
MEMBER:
How is it you didn’t
know that?
CLAIMANT: Just -- they just said we have two
names, we can say Lady Virgin and we can say St. Mary. They are the same
[emphasis added].
[37]
This
exchange shows that Jims clearly gave an explanation which should have been
considered by the Board, namely that the two names are interchangeable. Even
the interpreter at the hearing used St. Mary and Lady Virgin interchangeably.
Talking about the difference between the Lady Virgin church and the St. George
church, the interpreter translated as follows (see tab 17 page 73 of the
applicant’s record):
Counsel:
What is the difference between these two churches?
[Interpreter]:
What is the difference between those two?
Jims:
We used to go on Sundays to St. Mary.
[Interpreter]:
Ok we used to go the church to the seminars at Lady Virgin.
Jims:
At St. George we used to go and work in their Youth Groups.
[Interpreter]:
At St. George we used to do other activities work for them and help the poor
people at the church.
Counsel:
You were a member of St. George am I correct?
[Interpreter]:
Were you a member of St. George?
Jims:
Yes, there there is no difference we are Christians you can go to any of them.
[Interpreter]:
There is no difference between any churches to attend them in terms of
attending.
Jims:
But I was a member of St. Mary.
[Interpreter]:
But I used to belong to Lady Virgin [emphasis added].
[38]
Other
similar examples of St. Mary being interchanged with Lady Virgin by the
interpreter can be found in the Applicant’s record tab 17 pages 76-77 and 79.
[39]
The
fact that the Board failed to appreciate Jims’ explanation that Lady Virgin and
St. Mary can be used interchangeably is a serious error because it was a major
reason for its finding that Jims was not credible. Although there were other
reasons given for the credibility finding, it is not the Court’s role to reassess
credibility; that is the role of the Board. For this reason alone, Jims claim
for protection must be re-examined.
[40]
I
note that the record reveals a further reason why the Board may have confused
the names of the churches. The record reveals that Jims was baptized at St. George’s church in
Syria; that he attended Lady Virgin or St. Mary’s church in Syria, and that he
attended St. Mary’s church in Toronto.
[41]
Neither
party proposed a question for certification
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1. The
application for judicial review of the decision of the Refugee Protection
Division of the Immigration and Refugee Board dismissing the claim for
protection filed by Georg Marma is dismissed;
2.
The
application for judicial review of the decision of the Refugee Protection
Division of the Immigration and Refugee Board dismissing the claim for
protection filed by Jims Marma is allowed;
3.
The
claim of Jims Marma for protection is remitted back to the Refugee Protection
Division of the Immigration and Refugee Board for determination by a different
Member; and
4.
No
question is certified.
"Russel W. Zinn"
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