Docket: IMM-6656-11
Citation: 2012 FC 662
Ottawa, Ontario, May 30,
2012
PRESENT: The Honourable Mr. Justice Scott
BETWEEN:
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ALI MOWLOUGHI
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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
I. Introduction
[1]
This
is an application by Mr. Ali Mowloughi (Mr. Mowloughi) for judicial review of a
decision of the Immigration and Refugee Board (the Board), rendered on
September 2, 2011. The Board determined that Mr. Ali Mowloughi (Mr. Mowloughi)
is neither a Convention refugee nor a person in need of protection as
contemplated by sections 96 and 97 of the Immigration and Refugee Protection
Act, SC 2001, c 27 [IRPA].
[2]
For
the following reasons, this application for judicial review is dismissed.
II. Facts
[3]
Mr.
Mowloughi is a citizen of Iran.
[4]
Mr.
Mowloughi claimed to have been arrested, detained and brutalized by Iranian
authorities for having participated in demonstrations against President
Ahmadinajad.
[5]
On
June 14, 2009, he attended a demonstration, was arrested and taken to the
Pasdoran station in Mashhad. He was subsequently interrogated and
brutalized.
[6]
Mr.
Mowloughi was detained for two days and then forced to sign a document stating
that he would cease participating in demonstrations.
[7]
Upon
his release, Mr. Mowloughi sought medical attention. Several days later he went
to a clinic for a follow-up examination. On his return, he encountered a crowd
that was gathered for a demonstration. He was suddenly attacked by Pasdoran
agents and forced in a car with other demonstrators. He protested in vain that
he was not participating in that demonstration but merely returning home from
the clinic. The agents refused to believe him.
[8]
Mr.
Mowloughi was taken to Vakilabad prison in Mashhad where agents took his finger
prints and photograph. He was subsequently tied to a railing and physically
brutalized. He was detained for several days and only released after his wife
paid a large fine.
[9]
He
was held again in February 2010, two days prior to another large demonstration,
as a preventive measure.
[10]
Mr.
Mowloughi left Iran on May 17, 2010, after he obtained a temporary
Visa to visit his sisters in Canada. He arrived the same day and made his refugee
claim on June 2, 2010.
[11]
The
Board concluded that Mr. Mowloughi was neither a Convention Refugee nor a
person in need of protection as per sections 96 and 97 of the IRPA due
to his lack of credibility.
III. Legislation
[12]
Sections
96 and 97 of the IRPA provide as follows:
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Convention refugee
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Définition de « réfugié »
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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,
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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 :
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(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
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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;
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(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.
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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.
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Person in need of protection
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Personne à protéger
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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
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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 :
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(a) to a danger, believed on substantial
grounds to exist, of torture within the meaning of Article 1 of the
Convention Against Torture; or
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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;
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(b) to a risk to their life or to a risk of
cruel and unusual treatment or punishment if
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b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
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(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
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(i) elle ne peut ou, de ce fait,
ne veut se réclamer de la protection de ce pays,
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(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,
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(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,
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(iii) the risk is not inherent or incidental to
lawful sanctions, unless imposed in disregard of accepted international
standards, and
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(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,
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(iv) the
risk is not caused by the inability of that country to provide adequate
health or medical care.
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(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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Person in need of protection
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Personne à protéger
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(2) A
person in Canada who is a member of
a class of persons prescribed by the regulations as being in need of
protection is also a person in need of protection.
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(2) A
également qualité de personne à protéger la personne qui se trouve au Canada
et fait partie d’une catégorie de personnes auxquelles est reconnu par
règlement le besoin de protection.
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IV. Issue and
standard of review
A.
Issue
·
Did
the Board breach its duty of procedural fairness in view of the quality of
interpretation services provided to Mr. Mowloughi during his hearing?
B.
Standard
of review
[13]
In
Zaree v Canada (Minister of Citizenship and Immigration Canada), 2011 FC 889
at para 7 [Zaree], Justice Martineau held that “it is …necessary for the
refugee claimant to be heard and for his account to be understood by the panel
in the first place. Therefore, the quality of the translation before the panel
on its own can raise an issue of procedural fairness, and it is the standard of
correctness that applies in such cases”.
V. Parties’
submissions
A.
Mr.
Mowloughi’s submissions
[14]
In
his affidavit, Mr. Mowloughi stated that he only became aware of the
deficiencies in the interpretation of his testimony before the board when Ms.
Hedieh Tajik listened to the CD of the hearing. It is therefore his position
that he was incapable of raising an objection to the interpretation
deficiencies before then. Consequently, he claims not to have waived his right
to the assistance of a competent interpreter under section 14 of the Canadian
Charter of Rights and Freedoms, Part I of the Constitutional Act,
1982, being schedule B to the Canada Act (UK), 1982, C
11.
[15]
Mr.
Mowloughi relies on the following extract from Zaree, cited above, to
claim that his application for judicial review must be granted. Justice
Martineau wrote in paragraph 8:
“…Where
problems of interpretation could be reasonably addressed by the refugee
claimant at the time of the hearing, there is an obligation to address them
then and not later, in judicial review proceedings. However, if they can only
be addressed during judicial review, the refugee claimant is not required to
show that he or she has suffered actual prejudice as a result of the breach of
that right.”
[16]
Mr.
Mowloughi alleges that the interpreter made several errors during the hearing
.which considerably undermined his credibility. He also submits that the
interpreter made 49 misinterpretations, some of which have impacted on his
claim. As a result, Mr. Mowloughi alleges that he was not provided with a
“continuous, precise, competent, impartial and contemporaneous” interpretation
(see Mohammadian v Canada (Minister of
Citizenship and Immigration), [2001] FCA 191).
[17]
Mr.
Mowloughi further submits that he need not demonstrate that the interpreter’s
misinterpretations were material to the Board’s credibility findings. Instead,
he must only prove that the Board breached its duty of procedural fairness.
B.
The
Respondent’s submissions
[18]
The
Respondent notes that in order for Mr. Mowloughi to establish a breach of
procedural fairness, he must demonstrate that the interpretation provided at
the hearing was not “continuous, precise, impartial, competent and
contemporaneous” (R. v Tran, [1994] 2 S.C.R. 951 [Tran]). He must
also demonstrate that the interpreter’s misinterpretations were material to the
Board’s credibility findings (Nsengiyumva v Canada (Minister of
Citizenship and Immigration), 2005 FC 190 at para 16).
[19]
The
Respondent argues that Mr. Mowloughi failed to demonstrate that the errors of
interpretation were important in the Board’s assessment. Relying on Fu v
Canada (Minister of Citizenship and Immigration), 2011 FC 155 at para 10 [Fu],
where Justice Rennie stated that “the fact that there was an error in
translation, which in turn formed the incorrect foundation of one of the
adverse findings of credibility does not mean that the decision should be set
aside”. The Respondent claims that in the case at bar, just as in Fu,
the overall credibility determination was reasonable and the judicial review
should also be dismissed.
[20]
The
Respondent submits that half of the alleged errors are mere disagreements with
the interpreter’s choice of words since the actual substance of the testimony
was properly translated during the hearing and as such, was in accordance with Tran
cited above (see Sohal v Canada (Minister of Public Safety and Emergency
Preparedness), 2011 FC 1175 at paras 22-23).
[21]
The
Respondent also claims that Mr. Mowloughi failed to prove that the remaining
errors were material to the Board’s credibility findings.
[22]
Finally,
it is the Respondent’s position that Mr. Mowloughi waived his Charter right
because he failed to raise the issue of misinterpretations at the first
occasion. Mr. Mowloughi was aware of the date conversion problem but failed to
raise it. Furthermore, he understood enough English to recognize potential
problems as evidenced by his testimony when cross-examined on March 12, 2012.
VI. Analysis
·
Did
the Board breach its duty of procedural fairness in view of the quality of
interpretation services provided to Mr. Mowloughi during his hearing?
[23]
The
Board did not breach its duty of procedural fairness for the reasons that
follow.
[24]
The
Court firstly notes that Mr. Mowloughi has not challenged the reasonableness of
the Board’s credibility findings.
[25]
As
the Court reviews the transcript of the hearing and Mr. Mowloughi’s affidavit,
it is clear that several errors of interpretation occurred during the hearing.
However, the important question for this Court is whether these errors were
material or not to the Board’s credibility findings.
[26]
The
Board found several discrepancies between Mr. Mowloughi’s Personal Information
Form [PIF] and his testimony. It also determined that Mr. Mowloughi had omitted
to include important facts in his PIF such as his purported beating at the
Vakilabad prison. Finally, the Board noted that Mr. Mowloughi failed to adduce
important medical evidence in support of his application.
[27]
The
Court reviewed Hedieh Tajik’s affidavit for evidence that the alleged errors
were material to the Board’s nine credibility findings. Some of the alleged
misinterpretations can better be characterized as disagreements on choice of
words, or imprecisions and have no bearing on the actual substance of the
testimony.
[28]
Counsel
for Mr. Mowloughi directed the Court to paragraph 40 of the affidavit, amongst
others, to indicate that inconsistencies on the chronology of events were
material. The Respondent admits these misinterpretations on dates have impacted
one of the nine credibility findings.
[29]
“The fact that there was
an error in translation, which in turn formed the incorrect foundation of one
of the adverse findings of credibility, does not mean that the decision should
be set aside. It is clear that the [Board] rejected [the Applicant’s claim]
because it found him, over the course of his testimony, not to be credible…In
sum, [the Applicant’s] right to procedural fairness was not breached as the
breach could not, once again in regard to the decision as a whole, have
affected the outcome of the decision under review” (see Fu cited above
at para 10).
[30]
Furthermore,
as the Court reviewed the transcript, it is apparent from the very onset of the
hearing that the interpreter is struggling with the conversion of dates. The
Court concurs with the Respondent that Mr. Mowloughi ought to have raised this
issue since he failed to do so he waived his right to object to these issues in
this judicial review.
MEMBER : Yes.
So sir I realize the importance of this hearing for you. I will be asking you
questions concerning the reasons for your claim for refugee protection. My
questions reflect only the need for information so I can make a fair and
informed decision about your claim. So if a question is unclear say so and it
will be rephrased. If you have any difficulty communicating with the
interpreter say so immediately and I will try to resolve the problem. If you do
not know the answer to a question, say so, do not attempt to guess. Often a
simple yes or no is an appropriate response to a question. If you wish to
respond at length please break up your answers in order to facilitate
interpretation. If you require a break at any time during the hearing say so
and we will break for a few minutes.
The
microphone in front of you is used to record your testimony; it will not
amplify your voice, so it is important to speak clearly in order to ensure you
full answer is recorded.
Did
you want to get some water before we get started?
CLAIMANT : No
I have <inaudible>.
MEMBER : Madame
Interpreter you are okay?
INTERPRETER : I
am okay, thank you.
MEMBER : So
I am going to begin by asking you some questions.
Sir
when did you leave Iran?
INTERPRETER : He
gave me… I have to convert.
CLAIMANT : It
is the second month so approximately in April 2009 … May 17, 2009.
(see
Transcript, pages 164 and 165 of Tribunal Record)
MEMBER : When
you were detained; do you remember the date?
CLAIMANT : It
is in the spring … so late spring of 2009 and when I arrived two days after I
looked on the calendar and ...
MEMBER : Do
you recall the month, the date other than late spring?
INTERPRETER : I
can find out the exact date.
MEMBER : Do
you have it?
INTERPRETER : I
have to convert.
MEMBER : In
you can convert it for me.
INTERPRETER : This
is … I have the calendar in front of me. I thing it is around June 15.
MEMBER : Thank
you.
INTERPRETER : Approximately.
(see
Transcript, pages169 and 170 of the Tribunal Record)
[31]
For
these reasons this application is dismissed.
VII. Conclusion
[32]
This
Court dismisses Mr. Mowloughi’s application for judicial review as the interpreter’s
errors were not material to the Board’s findings on credibility. Mr. Mowloughi
further waived his right to object to the issue based on the date conversions
in this judicial review. He is not a Convention Refugee or a person in need of
protection under sections 96 and 97 of the IRPA.
JUDGMENT
THIS COURT’S
JUDGMENT is that
1. This
application for judicial review is dismissed; and
2. There is no
question of general importance to certify.
"André
F.J. Scott"
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