Docket: IMM-803-14
Citation:
2014 FC 735
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, July 23, 2014
PRESENT: The Honourable Mr. Justice Shore
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BETWEEN:
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YOUSSEF BEN CHEIKH BRAHIM, SONIA GHALI AND SARAH BEN CHEIKH BRAHIM
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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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JUDGMENT AND REASONS
I.
Preliminary Comments
[1]
The Court is of the view, based on the detailed
transcript of the hearing before the Refugee Protection Division [RPD] of the Immigration
and Refugee Board, that the applicants were not denied a hearing in French;
rather, they themselves waived their right to an interpreter by allowing their
counsel to deliver part of his oral arguments in English, given that counsel
for the applicants’ notes were in English and he wished to communicate them in
that language.
II.
Introduction
[2]
This is an application for judicial review
submitted by the applicants pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 [IRPA] of a decision of the RPD,
dated January 28, 2014, by which the application to reopen the applicants’ file
was refused.
III.
Facts
[3]
The applicants are citizens of Tunisia. They
fear persecution in their country because they are Christians. The principal
applicant converted from Islam to Christianity in 1999 and since then claims to
have been harassed and questioned by police at his place of employment.
[4]
For her part, his spouse, the adult female
applicant, allegedly experienced persecution as a teacher. She also purportedly
was shunned by the parents and was sanctioned by the school she worked at for
having taught the Christian faith to the students.
[5]
Their minor daughter also apparently suffered at
the school because of her Christian faith. She had to change schools a number
of times. Her parents stated that for her psychological well-being they sent
her to Canada in May 2011. They subsequently came to join her in Canada in
August 2011.
[6]
The family claimed refugee protection on
August19, 2011. Their claim was rejected on October 1, 2013, on the primary
ground that there was insufficient evidence establishing a serious possibility
that the applicants would face a risk of persecution by reason of their
religious beliefs if they were to return to Tunisia. The RPD found that the
documentary evidence showed that the current situation in Tunisia had changed
considerably since the applicants’ departure; Christians now practised their
religion largely without restriction in the country. The RPD noted that
although the applicants may have been the subject of discrimination in the past,
there was little evidence that they would be in the future.
[7]
Following that decision, the applicants filed an
application for judicial review. They also submitted an application to reopen
to the RPD, which was refused on January 28, 2014. The applicants are now
asking the Court to intervene in the latter decision on the following grounds:
a)
The RPD violated their right to a hearing in the
official language of their choice;
b)
The RPD failed to consider all of the evidence
in the record;
c) The RPD erred in the manner in which it assessed the prospective
risk faced by the applicants.
IV.
Analysis
[8]
In the respondent’s view, the last two questions
are not relevant to this case, as they bear no relation to any breach of the
principles of natural justice. The Court shares this view. These allegations
have nothing to do with natural justice; rather, they relate to the
reasonableness of the decision. The applicants are essentially attempting to
make the same arguments as those submitted in IMM-7118-13 (2014 FC 734) before
this Court. In short, the applicants disagree with the manner in which the RPD
considered the evidence and the way it reviewed their refugee protection claim.
The Court cannot intervene on either of these grounds in this case. Section 62
of the Refugee Protection Division Rules, SOR/2012-256, clearly states
that the RPD cannot reopen a refugee claim unless it has been established
that there was a failure to observe a principle of natural justice (Lakhani
v Canada (Minister of Citizenship and Immigration), 2006 FC 612; Ali v
Canada (Minister of Citizenship and Immigration), 2004 FC 1153, 228 FTR
226).
[9]
As for the matter of the language at the
hearing, the Court is of the view that, based on a detailed transcript of the
hearing before the RPD, the applicants were not denied a hearing in French;
rather, they themselves waived their right to an interpreter when they allowed
their counsel to deliver part of his oral arguments in English, given that counsel
for the applicants’ notes were in English and he wished to communicate them in
that language. The RPD was under no obligation to ask the applicants whether
they wanted an interpreter at the time or to get them to specifically waive
their right to an interpreter. This Court has clearly ruled that a party can
implicitly waive the language rights granted to it under the Official Languages
Act, RS (1985), c 31 (4th supp)) (see Taire v Canada (Minister of
Citizenship and Immigration), 2003 FC 877).
V.
Conclusion
[10]
For all of the foregoing reasons, the
applicants’ application for judicial review is dismissed.
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