Docket: IMM-4181-14
Citation:
2015 FC 71
Calgary, Alberta, January 19, 2015
PRESENT: The
Honourable Mr. Justice Locke
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BETWEEN:
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ELISA MANGEBELE MABADI
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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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JUDGMENT
AND REASONS
I.
Background and facts
[1]
This is an application for judicial review of
the April 28, 2014 decision (the Decision) of the Refugee Protection Division
of the Immigration and Refugee Board (RPD) finding the Applicant to be neither
a Convention refugee nor a person in need of protection under section 96 or 97
of the Immigration and Refugee Protection Act, SC 2001, c 27. For the
reasons discussed below, I have decided to dismiss this application.
[2]
The Applicant, a citizen of the Democratic
Republic of Congo (DRC), alleges that, while she was outside her country in
2012, she participated in marches against the current government in the DRC.
She alleges that these marches were recorded on video and that those videos are
available on YouTube. The Applicant asserts that the DRC government learned of
her participation in these marches and targeted her. She alleges that, later in
2012 while she was in Canada, members of her family were attacked in her
daughter’s home in the DRC by six state agents. The Applicant alleges that the
state agents (i) mentioned that they were aware of her political activities;
(ii) demanded to know where she was; (iii) raped her daughter and two of her
adopted daughters; (iv) killed her father; (v) robbed the family of money and
goods; and (vi) kidnapped two of her adopted daughters.
[3]
Citing a number of inconsistencies and
contradictions, the RPD concluded that the Applicant’s allegations were not
credible. The Decision refers specifically to inconsistencies between the
Applicant’s testimony, her Personal Information Form (PIF), and a newspaper
article about the incident. The RPD focused on inconsistencies as to who was
present at the time of the attack, who was raped; and who lives in the home.
[4]
The crux of the Applicant’s argument in the
present application concerns the quality of the interpretation that was
provided during the hearing before the RPD between the English spoken by the
RPD and the Tshiluba spoken by the Applicant. Though the Applicant was not able
to comment on the quality of the interpretation because she is unfamiliar with
English, her cousin (Balex Kabamba) attended the hearing and gave evidence
before this Court concerning a series of alleged errors of interpretation.
II.
Issue and standard of review
[5]
The Applicant alleges that, as a result of these
alleged interpretation errors, she was denied procedural fairness at the
hearing. The Respondent counters that the Applicant was not denied procedural
fairness and that any errors in interpretation were minor.
[6]
The parties are agreed that the standard of
review on a question of procedural fairness related to the quality of
interpretation is correctness. I concur.
III.
Analysis
[7]
The Affidavit of Balex Kabamba details 22
alleged interpretation errors. The Applicant argues that it is not possible to
determine how her responses to questions during the hearing before the RPD
might have been different if the interpretation had been proper, and therefore
it is likewise not possible to determine whether the RPD’s conclusions would
have been different. The Applicant also argues that the Court should not
speculate in this regard.
[8]
The Respondent comments on each of the alleged
interpretation errors. The Respondent also argues that the quality of
interpretation is not to be judged on a standard of perfection and that even
serious errors will not vitiate the RPD’s decision unless such errors would
have made a difference to the result. The Respondent further argues that the
list of 22 alleged interpretation errors should be understood to be exhaustive,
such that the remainder of the interpretation should be presumed correct.
[9]
Having considered each of the 22 alleged
interpretation errors, I find that most do not require discussion here. Using
the numbering provided in the Kabamba Affidavit, I find that there is no
interpretation error in numbers 8, 12, 19 and 22.
[10]
With regard to the following alleged
interpretation errors, I find that either there was no apparent
misunderstanding in the exchange or any misunderstanding was clarified during
the hearing: 1, 2, 4, 5, 6, 7, 9, 10, 11, 13, 14, 15 and 16.
[11]
With regard to the following alleged
interpretation errors, I find that any misunderstanding was not material to the
RPD’s conclusion: 17, 20 and 21.
[12]
This leaves only the alleged interpretation
errors 3 and 18 that require further discussion.
[13]
Alleged interpretation error number 3 concerns
the following statement by the RPD member (at page 5, line 9 of the transcript): “It’s very important that you stop from time to time to
allow [the interpreter] to convey what you’ve said. If the interpreter asks you
to stop, please stop so that your words can be interpreted.” The
evidence is that, in the interpretation of this statement, the Applicant was
advised to “[b]e short in your answers, do not elaborate.”
The Applicant argues strongly that this advice might have caused her to cut
short some of her responses and leave out some additional explanations that
could have responded to the RPD’s concerns about some of the inconsistencies
and contradictions. The RPD’s conclusions might therefore have been different.
[14]
The Respondent argues that the Applicant has not
identified any such additional explanations that might have made a difference
to the RPD’s conclusions. The Respondent argues that the inconsistencies and
contradictions that concerned the RPD could not have been addressed by any
additional explanations the Applicant might have provided.
[15]
I agree with the Respondent. The Applicant has
not satisfied me that there is any elaboration that she might have provided
that would have addressed the inconsistencies and contradictions that concerned
the RPD.
[16]
This brings me to alleged interpretation error
number 18. This concerns an exchange in which the RPD member seeks an
explanation for an apparent inconsistency as to whether the family still lives
in the house in which the alleged attack happened. Earlier in the hearing, the
Applicant indicated that her daughter and son-in-law were still living in the
house (page 11, line 15). Later, the Applicant indicated that her daughter’s
family left the house because of the attack (page 17, line 33). The Applicant
states that she was initially referring to where her daughter lived before the
attack. She says her explanation (correctly interpreted) was: “I responded to the question in relation to the incident.
This response now is in relation to the current situation.” This
explanation was translated as: “What I understood first
was when you asked me that where were they, then I took it they are living in
that place.”
[17]
The parties are agreed, and I concur, that the
exchange is unclear. The Applicant’s explanation for the inconsistency was not
adequately communicated to the RPD. Moreover, the absence of an explanation was
cited in the Decision as part of the basis for the finding of a lack of
credibility (see paragraph 20). However, I am not satisfied that this is
sufficient to justify setting aside the Decision. Firstly, the Applicant’s
explanation as quoted in the preceding paragraph remains unclear in my view.
Even if the explanation had been properly interpreted, I am not satisfied that
the RPD would necessarily have understood it as the Applicant argued before
this Court. Secondly, I am not satisfied that that the RPD’s finding of lack of
credibility would have been different even if the Applicant’s clarification has
been communicated clearly. The inconsistency itself was not the result of any
interpretation error; it is just the explanation that was poorly communicated.
[18]
Finally, even taking into account the cumulative
effect of alleged interpretation errors 3 and 18, I am not satisfied that the
issues raised by the Applicant are sufficient to constitute a denial of
procedural fairness. The Applicant was not entitled to a perfect interpretation
but rather an adequate interpretation. The fundamental value is linguistic
understanding: Singh v Canada (Citizenship and Immigration), 2010 FC
1161, at para 3, citing Mohammadian v Canada (Citizenship and Immigration),
2001 FCA 191 and R v Tran, [1994] 2 S.C.R. 951. I am satisfied that the interpretation,
though imperfect, was adequate and that the Applicant was given a fair hearing
before the RPD.
IV.
Conclusion
[19]
In my view, this application should be
dismissed.
[20]
In oral argument, the Applicant’s counsel
requested that I certify that this matter involves a serious question of
general importance. The proposed question concerns whether an instruction to a
refugee claimant not to elaborate in his or her answers during the hearing
before the RPD is reason to set aside a decision refusing refugee status. For
its part, the Respondent argues that this question is not of sufficient general
importance to justify certification. I agree with the Respondent. In my view,
the proposed question is too fact-specific to be worthy of certification.
Accordingly, I will not certify a question in this case.
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