Docket: IMM-7725-10
Citation: 2011 FC 1005
Ottawa, Ontario, August
19, 2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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RODNEY ACOSTA COYA
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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
[1]
This
application for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board of Canada (the Board) dated
October 27, 2010 is granted. In that decision, the Board rejected the
applicant’s claim that if he were returned to Cuba he would be
persecuted by reason of his “dissident” act of resigning from the Communist Youth
League (CYL), and by reason of his decision to overstay the exit visa granted
to him by the Cuban government.
[2]
The
matter is remitted for two reasons. First, the right to a fair hearing was
compromised by the quality of the Spanish-English interpretation; and, secondly,
by reason of the misapplication of the legal principle governing the assessment
of sur place claims arising under the Convention. Whether the standard
of procedural fairness has been met and whether the appropriate legal test
applied are questions to be assessed against a standard of correctness.
Fair Hearing
[3]
The
transcript of proceedings from the applicant’s hearing on October 27, 2010 does
not comprise the entire hearing. The transcript is incomplete; in particular,
it does not contain any of the questions that the applicant posed to the Board.
Secondly, and of greater importance from a procedural fairness perspective, the
Board acknowledged that there was a problem with the Spanish-English-Spanish interpretation
and that the applicant had complained about it at the hearing. On the Hearing
Information Sheet the Board member stated:
Interpreter very slow, stutters,
stammers, has difficulty hearing, frequently asks to repeat and is can [sic]
unable to interp a few words at a time.
This makes the hearing very choppy,
disjointed and makes giving negative decisions even more difficult. The
claimant was very frustrated. I note that the interpreter tries very hard and
also I have no complaint about the quality of the actual translation.
[4]
As
the transcript is incomplete it is impossible to properly verify the quality of
the interpretation to determine whether it met the standard for
adequate interpretation set by Mohammadian v Canada (Minister of
Citizenship and Immigration), [2000] 3 FC 371 (TD), aff'd [2001] 4 FC 85
(CA). As confirmed by subsequent case law such as Huang v Canada (Minister
of Citizenship and Immigration), 2003 FCT
326 at para 8; and Sayavong v Canada (Minister of Citizenship and Immigration), 2005 FC 275 at para 1, Mohammadian establishes the standard
as follows:
[5]
The
Board’s observation reproduced above is, however, more than sufficient to
establish, a factual foundation for the conclusion that it failed to meet the
standard established by successive decisions of this Court. Given that the applicant’s
oral testimony was the primary evidence upon which the Board based its
decision, the accuracy and quality of the translation was material to the
decision.
[6]
As
noted, the Board acknowledged problems with the interpretation and the applicant’s
frustration with it. In these circumstances the respondent cannot argue that
the applicant’s failure to raise the issue at the hearing is fatal to his
claim. In any case, this Court has held that when a review of the audio
recording from a hearing reveals serious interpretation errors, the failure to
raise the issue of the interpretation at the hearing does not preclude it from
being raised at the Federal Court: Khalit Ahamat Djalabi v Canada (Minister
of Citizenship and Immigration), 2007 FC 684. Here, the Board’s comments
about the problems with the interpreter serve the purpose analogous to a review
of the recording in that they confirm both the nature and extent of the
problems with the interpretation and their impact on the hearing.
[7]
In
addition, the Board member’s statement that she had no problem with the
“quality” of the interpretation is not sufficient to assure the Court that the
interpretation was adequate, since there is no evidence that the Board member understands
Spanish herself. No weight can be given to that statement.
[8]
Given
the acknowledged inadequacy of the interpretation it cannot be said that the
standards of a fair hearing were met and the decision is set aside.
Sur Place Claim
[9]
The
Board concluded that the applicant could not make a claim of persecution based
on the consequences of his own violation of the exit laws. The Board’s decision
to deny protection on this basis was consistent with the remarks of Justice
Judith Snider in Perez v Canada (Citizenship and
Immigration), 2010 FC 833:
The Federal Court of Appeal decision in Valentin
[v Canada (Minister of Employment and
Immigration),
[1991] 3 FC 390], above, is directly applicable to this application. Valentin
bars self-induced refugee status. It starts from the premise that a claimant
has a valid exit visa. It then bars the claimant from overstaying the visa and
relying on the self-created overstay as a ground of persecution. In this case,
the Applicant held a valid exit visa. She failed to renew her permit, as she could
have done. She cannot rely on self-created overstay as a ground of persecution.
Valentin has been consistently followed in this Court where the facts
are similar to those before me; see for example, Jassi v. Canada (Minister of Citizenship and
Immigration),
2010 FC 356 (CanLII), 2010 FC 356, [2010] F.C.J No. 412 (QL).
The jurisprudence is to a similar effect
in the context of a s. 97 claim for protection. In Zandi v. Canada (Minister
of Citizenship and Immigration), 2004 FC 411 (CanLII), 2004 FC 411, [2004]
F.C.J. No. 503 (QL), Justice Kelen considered the situation of an Iranian who
defected to Canada while here for an athletic
competition. In considering whether the claimant could claim protection on the
basis that he would be punished for defecting on his return to Iran, Justice Kelen stated as follows:
To paraphrase the Federal Court of Appeal
in Valentin, supra, a defector cannot gain legal status in Canada under
IRPA by creating a "need for protection" under section 97 of IRPA by
freely, of their own accord and with no reason, making themselves liable to
punishment by violating a law of general application in their home country
about complying with exit visas, i.e. returning.
In short, the jurisprudence is clear that
the Applicant, who failed to renew her valid exit visa, cannot rely on the
possibility of punishment under Cuba’s
Criminal as grounds for protection under s. 96 or s. 97.
[10]
To
the extent that the Board analysed the case before it in a manner consistent
with the analysis of Justice Snider, it is on solid ground. This does
not, however, end the matter.
[11]
It
is important to note that the Board member in Perez also undertook a
detailed analysis of the evidence of extrajudicial punishment and concluded
that this punishment would not constitute persecution. In the case at bar, the
Board failed to do so, despite being required to undertake this analysis.
[12]
As
noted by Justice Snider, the Board in Perez considered the persecutory
nature of the exit law, as well as the extra-judicial punishment that Ms. Perez
alleged would result from her having violated the exit law:
The Board examined the
evidence before it to determine “how serious, persistent and repetitive the
mistreatment was and whether it was systematic”. The Board concluded that there
was no persuasive evidence that the claimant was facing persecution “even if
considered cumulatively”. In reaching this conclusion that Board made the
following findings:
• The
Board noted that the Applicant’s fine for selling items on the black market was
imposed under Cuban laws whose purpose was to curb black-market activities. As
such, the Board concluded that “the claimant fears lawful sanctions that have a
valid purpose”.
• The
behavioural disorders and inadaptability of her daughter at school were typical
of a 13-year old’s separation from her mother, and the school’s phone calls
home for the daughter’s absence caused no harm. The Board concluded that the
daughter was not being persecuted at school.
• Although
the Applicant’s husband had lost his job, there is no evidence, beyond
speculation, that the job loss was due to the Applicant’s presence in Canada.
• Because
the Applicant had been able to leave Cuba
in 2008 on a legitimate visa, the Board concluded that “if the person was a
person of interest in Cuba, it is unlikely that she
would have been allowed to leave”. If the family members were being persecuted
for the Applicant’s beliefs, it is “reasonable to expect her husband would have
had more difficulty [when he was arrested for an illegal internet connection]”.
The Applicant also raised the
possibility that she would be subjected to imprisonment if she now returned to Cuba after overstaying her Cuban exit visa.
The Board acknowledged that she might be subjected to imprisonment upon her
return to Cuba. However, the Board found
that the punishment for this contravention of Cuba’s laws was not “repetitive, persistent
or extreme and thus cannot be considered persecutory”.
[13]
The
Court, in Castaneda v Canada (Minister of Employment
and Immigration) [1993] FCJ No 1090 also reiterated the requirement that the
extra-judicial consequence be examined:
Applicant further argues that the
evidence suggests that his family has been mistreated by the Cuban authorities
as a result of his defection and that this constitutes extra-judicial
punishment which should have been considered by the Board. Again an erroneous
application of the Valentin decision is alleged.
I believe that this argument has merit.
The evidence indicates that Applicant's father who is ill may be assigned to do
labour work in the fields. The job which he had held for thirty years is
jeopardized. Applicant's mother has been demoted. She is considered as an
untrustworthy person as a result of her son's defection.
The Board, in its otherwise well motivated
decision, did not in any way refer to this evidence presumably because the
members felt that the Valentin decision which dealt with a fear of
imprisonment, usually the most severe repercussion arising from a breach of
exit laws, was conclusive.
[14]
In
sum, it is true that Valentin bars an applicant from protection where
the persecution faced is a result of having overstayed an exit visa. However, where
the Board fails to analyze in detail the evidence of extrajudicial punishment
the decision is reviewable: see, to the same effect, Donboli v Canada (Minister of
Citizenship and Immigration), 2003 FC 883.
[15]
In
contrast, in the present case the Board engaged in no such examination of the
persecutory nature of the consequences of the violation of the exit laws nor of
whether, given the extrajudicial consequences stemming from the applicant’s
violation of the laws, they could, in the language of Perez, be said to
be repetitive, persistent, or extreme. Intervention is required in this case
because the Board decided not to consider such punishment simply because the applicant
could have avoided any hardship by overstaying. While undoubtedly part of the
analysis, it is not sufficient, on its own, to dispose of the matter with the
rule set by Castaneda, Perez and Donboli.
JUDGMENT
THIS COURT’S
JUDGMENT is that:
1.
The
application for judicial review is granted.
2.
The
decision of the Board is set aside and the matter remitted to the Refugee
Protection Division of the Immigration Refugee Board for reconsideration before
a different member of the Board.
3.
No
question arises for certification.
4.
No
order as to costs.
"Donald
J. Rennie"
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