Date: 20091022
Docket: IMM-461-09
Citation: 2009 FC 1072
Toronto, Ontario, October 22,
2009
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
ELENA
NEGINSKAY
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review pursuant to section 72 of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (IRPA) of a decision of the
Refugee Protection Division (RPD) of the Immigration and Refugee Board of
Canada (the Board) dated December 8, 2008, wherein it was determined that the
applicant was not a Convention refugee and not a person in need of protection.
For the reasons that follow, the application is dismissed.
Background
[2]
Elena
Neginskay, the applicant, is a 97 year old citizen of Israel who made a
claim for refugee protection on the ground that she was persecuted as a result
of the fact that she spoke out about the necessity of peace between the
Israelis and Arabs.
[3]
The
applicant acknowledged that she did nothing to seek protection from the
authorities in Israel before claiming Canada’s
protection. Accordingly, the RPD found that the applicant failed to rebut the
presumption.
[4]
The
applicant was unable to testify in support of her claim due to medical problems.
After attempts by the RPD to accommodate the applicant proved unsuccessful,
counsel agreed that the applicant’s daughter, Raisa Pershanok, could testify on
the applicant’s behalf. Ms. Pershanok testified in Russian with the aid of an
interpreter.
Decision Under Review
[5]
The
RPD found that Ms. Pershanok failed to provide credible and trustworthy
evidence of her mother’s claim and, based on the applicant’s written narrative
and the witness’s testimony, the applicant did not complain to the authorities in
Israel regarding
her persecution and seek their protection.
[6]
On
questions regarding family history and when they arrived in Israel under the
Law of Return, the RPD found the witness to be non-responsive, that she delayed
her answers or did not answer on point. This was not attributed to a
difficulty with the interpretation as the witness did not say that she had
trouble understanding the interpreter or that she did not understand the
questions that were being put to her.
Issues
[7]
The
sole issue argued at the hearing of this application is whether the applicant
was denied procedural fairness because of inadequate interpretation at the RPD hearing.
Analysis
[8]
In
this case, the applicant’s PIF and the witness’s testimony clearly show that
the applicant did not seek state protection in Israel, a well
established democratic country with functioning institutions. With the
heightened obligation that applies in this context, the failure of the
applicant to pursue state protection was fatal to her claim: De La Rosa v. Canada (Minister of
Citizenship and Immigration), 2008 FC 83, [2008] F.C.J. No. 98, at
para. 12; Ramos v. Canada (Minister of
Citizenship and Immigration), 2008 FC 179, [2008] F.C.J. No. 232, at
para. 5; Camacho v. Canada (Minister of
Citizenship and Immigration), 2007 FC 830, [2007] F.C.J. No. 1100, at
para. 11.
[9]
With
regards to the applicant’s claim that the interpretation services provided to
the witness at the hearing were inadequate, I agree with the respondent that interpretation
does not have to conform to a standard of perfection: R. v. Tran, [1994]
2 S.C.R. 951, [1994] S.C.J. No. 16; Mohammadian v. Canada (Minister of
Citizenship and Immigration), 2001 FCA 191, [2001] F.C.J. No. 916, at para.
6.
[10]
The
affidavit from the applicant’s witness cites only a few examples of possible errors
in translation/interpretation. Counsel drew my attention to just one, where
the interpreter used the English word “Church” rather than “Synagogue”. It
remains contentious whether that is the word used by the witness. This is far
from what is required to satisfy the test that translation was inadequate: Dhot
v. Canada (Minister of
Citizenship and Immigration), 2001 FCT 881, [2001] F.C.J. No. 1264, at
paras. 5-6. In this case, the quality of the interpretation, while perhaps not
perfect, did not amount to a breach of procedural fairness.
[11]
In
any event, the adequacy of the interpretation in this case is immaterial. Errors
in interpretation had no bearing on the RPD’s finding that the applicant did
not seek state protection, which was decisive: Deng v. Canada (Minister of
Citizenship and Immigration), 2007 FC 943, [2007] F.C.J. No. 1228, at
para. 17.
[12]
The
RPD’s decision that the applicant was not a Convention refugee nor a person in
need of protection because she did not seek state protection in Israel falls within
the range of possible, acceptable outcomes: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9 at para. 47. It is not open to this Court
to substitute its own view of a preferable outcome: Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12, [2009] S.C.J. No. 12, at para. 59.
[13]
The
parties did not propose any serious questions of general application.
JUDGMENT
IT IS THE
JUDGMENT OF THIS COURT that the application is dismissed. There are no
questions to certify.
“Richard
G. Mosley”
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