Date: 20110209
Docket: IMM-627-10
Citation: 2011 FC 155
Ottawa, Ontario, February 9,
2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
|
|
ZIHUAI FU
|
|
|
|
Applicant
|
|
and
|
|
|
MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
|
|
Respondent
|
|
|
|
|
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application pursuant to subsection 72(1) of the Immigration and
Refugee Protection Act (IRPA) for judicial review of a January 12,
2010 decision of the Refugee Protection Division (RPD) of the Immigration
Refugee Board (IRB), which found the applicant to be neither a Convention
refugee nor a person in need of protection under sections 96 and 97 of IRPA.
[2]
This
application for judicial review raises two issues: first, whether an error in
translation deprived Mr. Fu of procedural fairness and, second, whether the RPD
erred in attributing excessive or inflated evidentiary weight or value to
discrepancies in the applicant’s testimony. In this regard, counsel for the
applicant contends that the RPD erred in focusing on minor variations in the
evidence Mr. Fu provided, and hence offended the direction of this Court in Attakora
v Canada (Minister of Employment and Immigration), [1989] FCJ No 444.
[3]
Turning
to the first argument, it is clear that the IRB, in its reasons, relied on the
erroneous translation;
[9] When testifying how he was introduced
to Christianity, the claimant testified that Li told him about the Bible, how
God created the world, about the Garden of Eden and how one can go to heaven by
believing in God. The claimant was asked if Li told him anything else, and he
replied that he told him certain matters about religion and tried to help him
out of his depression. The claimant never mentioned discussing the topic of Jesus
at all, although he agreed, when asked, that Jesus was central to
Christianity. The claimant was asked for an explanation and he insisted that
he had mentioned Jesus. He had not.
[4]
Claimants
before the IRB are entitled to continuous, precise, competent, impartial and
contemporaneous translation: Mohammadian v Canada (Minister of
Citizenship and Immigration) [2000] FCJ No 309, affirmed, 2001 FCA
191. The standard is not perfection as interpretation is, as noted by Chief
Justice Lamer in R v Tran, [1994] 2 S.C.R. 951, p. 987, an “inherently
human endeavour which takes place in less than ideal circumstances”.
[5]
Counsel
for the respondent properly conceded the error in the translation, but contends
that the right to rely on it was waived or lost through delay or,
alternatively, that the error, when viewed in the context of the decision as a
whole, did not render the decision unreasonable.
[6]
There
is no question that the right to rely on interpretation errors may be waived: Mohammadian, 2001 FCA 191, para. 18:
As Pelletier J. observed, if
the appellant's argument is correct a claimant experiencing difficulty with the
quality of the interpretation at a hearing could do nothing throughout the
entire hearing and yet be able to successfully attack the determination at some
later date. Indeed, where a claimant choses [sic] to do nothing despite his or
her concern with the quality of the interpretation, the Refugee Division would
itself have no way of knowing that the interpretation was in any respect
deficient. The claimant is always in the best position to know whether the
interpretation is accurate and to make any concern with respect to accuracy
known to the Refugee Division during the course of the hearing, unless there
are exceptional circumstances for not doing so.
[7]
The
issue of translation was raised when the applicant filed his affidavit, sworn
March 4, 2010 in support of leave. I am satisfied that the nature and extent
of the translation error only became manifest on delivery of the reasons by the
IRB and that there has been no waiver.
[8]
The
question remains as to the legal effect of the translation error, and whether,
when assessed in light of the decision as a whole, the applicant was denied
procedural fairness. The IRB made, in the course of its reasons, eight
negative inferences or adverse findings arising from inconsistency in, or
implausibility of, Mr. Fu’s testimony. Some of these are minor; others, such
as the divergence between the applicant’s evidence before the IRB as to how he
was converted to Christianity and the description in the Personal
Identification Form (PIF), the absence of any evidence to corroborate his
attendance at the first church he attended upon arrival in Canada, and that he
incorrectly stated the name of the church that he said he had been faithfully
attending, were significant.
[9]
Situated
in this context, it is clear that the omission of the words “Jesus Christ” by
the translator was not determinative to the overall outcome as evidenced by the
RPD’s conclusion. The IRB found that the applicant had a basic knowledge of
Christianity, which presumably encompasses an understanding of the role of
Jesus Christ in Christianity:
[19] I find that the claimant has basic
knowledge of Christianity. He was able to answer correctly most of the
questions asked. However, in the context of the findings and negative
inferences noted above, and because of my findings that the claimant was not a
Christian when he arrived in Canada and was not being pursued by
the PSB, I find, on a balance of probabilities, that he specifically came to Canada to make a refugee claim. I
find therefore, on a balance of probabilities, that the claimant is not a
genuine Christian in Canada, and that any knowledge he has gained in Canada in the last two years could
have been gained for the purpose of making his refugee claim. Merely
possessing knowledge of basic Christianity and joining a church is insufficient
evidence on which to base a finding that the person is a genuine practicing
Christian and in danger of persecution if required to return to China. If this were to be the case, anyone
could come to Canada, join a church and learn
basic teachings in time for a refugee hearing. To make a finding in this
regard, the totality of the evidence must be considered.
[10]
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 IRB rejected Mr. Fu’s claim
because it found him, over the course of his testimony, not to be credible -
not just because the IRB thought he had not mentioned Jesus Christ by name. In
sum, Mr. Fu’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: Canada (Minister of Citizenship and Immigration)
v Patel
2002 FCA 55; Mobile Oil Canada Ltd. v Canada-Newfoundland Offshore Petroleum
Board [1994] 1 S.C.R. 202, p. 228. Despite the translation error, and the
inference drawn from it, the IRB findings with respect to Mr. Fu’s credibility
are reasonable. Furthermore, in my opinion, the RPD did not attribute
excessive or inflated evidentiary weight or value to discrepancies in Mr Fu’s
testimony. The points of concern to the IRB in the applicant’s testimony were
substantive and material. The findings of credibility are not founded on minor
discrepancies of the kind discussed in Attakora; rather they go to the
heart of Mr. Fu’s claim. Therefore, the decision that Mr. Fu is neither a
Convention refugee nor a person in need of protection falls within the range of
possible and acceptable outcomes defensible in respect of the facts and law: Dunsmuir
v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190.
[11]
Accordingly,
the application for judicial review is dismissed.
[12]
No
question is proposed for certification and, in the opinion of the court, none
arises.
JUDGMENT
THIS COURT’S
JUDGMENT is that the application
for judicial review be and is hereby dismissed. No question for certification
has been proposed and none arises.
"Donald J. Rennie"
Email this Content