Docket: IMM-3029-16
Citation:
2017 FC 253
Toronto, Ontario, March 1, 2017
PRESENT: The
Honourable Mr. Justice Gleeson
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BETWEEN:
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FRED SHANI
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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.
Overview
[1]
Mr. Shani, the applicant, is a citizen of Albania.
He entered Canada in December 2015 and claimed protection on the basis that he
had witnessed a member of the Demaj family murder one of his friends. He reports
that he provided information relating to the murder to the police and was at a
risk of harm.
[2]
The Refugee Protection Division [RPD] found that
Mr. Shani had failed to establish a serious possibility of persecution on a
Convention refugee ground or that he faced a personal risk under section 97 of
the Immigration and Refugee Protection Act (S.C. 2001, c. 27) [IRPA].
The determinative issue was credibility.
[3]
Mr. Shani appealed the RPD decision to the
Refugee Appeal Division [RAD]. The RAD found that Mr. Shani’s fears related to alleged
criminal activity in Albania and that he had failed to establish a link to one
of the five Convention refugee grounds under section 96 of the IRPA. In
addressing his risks under section 97, the RAD found that his evidence was
neither trustworthy nor credible. The RPD decision was upheld.
[4]
Mr. Shani argues that the RAD erred by: (1) not
conducting an independent review of the record, including a review of key
documentation; and (2) failing to adequately consider the role that interpretation
difficulties may have had on Mr. Shani’s ability to consistently express
himself clearly. He asks that the matter be returned to the RAD for redetermination.
[5]
This application for judicial review raises the
following two issues for my consideration:
A.
Did the RAD fail to conduct an independent
assessment of the applicant’s documentary evidence?; and
B.
Did the RAD fail to consider interpretation
errors as an explanation for Mr. Shani’s inconsistent evidence?
[6]
Having considered the written submissions of the
parties and having heard their oral arguments, I am unable to conclude that the
RAD erred in assessing the evidence or that the RAD’s determination falls
outside the range of possible, acceptable outcomes which are defensible in
respect of the facts and law. The application is dismissed for the reasons that
follow.
II.
Standard of Review
[7]
Mr. Shani submits that the RAD’s failure to
conduct an independent inspection and assessment of the documentary evidence
impacted upon his right to have his case fully and fairly presented, rendering
the process unfair. Mr. Shani argues that the appropriate standard of review in
addressing this issue is correctness. In Moreau-Bérubé v Nouveau Brunswick,
2002 SCC 11 [Moreau-Bérubé], the Supreme Court of Canada noted that an
assessment of the appropriate standard review is not required when evaluating
an alleged breach of procedural fairness. Instead, a reviewing Court is
required to assess the procedures and safeguards required in the particular
circumstances (Moreau-Bérubé at para 74).
[8]
Where a reviewing Court is considering the RAD’s
factual findings, its assessment of the evidence as well as its credibility
findings, the standard of reasonableness applies (Siliya v Canada
(Citizenship and Immigration), 2015 FC 120 at para 20, Yin v Canada
(Citizenship and Immigration), 2014 FC 1209 at para 34 and Gabila v
Canada (Minister of Citizenship and Immigration), 2016 FC 574 at paras
19-21).
III.
Analysis
A.
Did the RAD fail to conduct an independent
assessment of the applicant’s documentary evidence?
[9]
Mr. Shani argues that the RAD did not fulfill
its duty to carry out its own analysis of the record (Canada (Minister of
Citizenship and Immigration) v Huruglica, 2016 FCA 93 at para 103 [Huruglica]).
Specifically, Mr. Shani submits that the RAD failed to inspect originals of key
documentary evidence submitted to the RPD. Instead, the RAD stated in its
decision that it deferred “…to the RPD’s observation of
the documents…”. Mr. Shani relies upon this statement to ground his
argument that the RAD process was unfair. I do not agree.
[10]
In considering Mr. Shani’s submissions, it is
necessary to consider the RAD’s statement in the context of the full analysis
undertaken. The RAD first noted, relying on Huruglica that it was to
review the RPD decision by applying a correctness standard. However, the RAD
also noted that it may defer to the RPD where the RPD enjoyed a meaningful
advantage on issues involving findings of fact or mixed fact and law.
[11]
The RAD considered Mr. Shani’s documentary
evidence and reviewed the RPD’s findings in this respect noting: (1) the
absence of original documentation in the hearing before the RPD; (2) the RPD’s
negative inference relating to the provenance of the documents due to Mr.
Shani’s vague testimony as to why and how the documents were obtained; (3) the
RPD’s implausibility findings based on inconsistencies between the content of
some of the documents and Mr. Shani’s other evidence; and (4) doubts as to the
authenticity of the documents because stamps did not appear to have been fixed
with ink.
[12]
The RAD then embarked on an independent
assessment of the documents based on the record and considered Mr. Shani’s
representations on the appeal. The RAD found a police letter to be of no
probative value and of questionable genuineness. The RAD independently
concluded that Mr. Shani’s explanation of how the documentation was produced or
acquired was not credible.
[13]
While the RAD’s statement that it “defers” to the RPD’s observation of the documents was
not the best choice of words, when considered in context the statement is, in
my view, limited to the RPD’s “stamp” conclusion
rather than its overall assessment of the documents. I rely on the RAD’s
independent findings relating to probative value, genuineness and provenance of
the documents in question to support this conclusion. It was neither unfair nor
unreasonable for the RAD not to undertake a physical examination of the
original documents. There was no breach of procedural fairness. I am also
satisfied that the RAD’s findings in respect of the documentary evidence are justified,
transparent and intelligible.
B.
Did the RAD fail to consider interpretation
errors as an explanation for Mr. Shani’s inconsistent evidence?
[14]
Mr. Shani concedes that there are discrepancies
in his testimony but attributes those discrepancies to interpretation problems.
He argues, relying on Bouanga v Canada (Citizenship and
Immigration), 2014 FC 1029 [Bouanga], that the RAD erred in
rejecting this explanation solely on the basis of the general credentials of
the interpreters employed by the respondent. Again, I disagree.
[15]
In Bouanga, unlike here, efforts were
made to obtain an audit report of the impugned interpretation. The audit report
identified numerous instances where the interpretation was not faithful to the
native language of the applicant or to the English language. In addition, the
audit demonstrated that the interpreter resorted to a third language without
notifying the panel and “… the interpreter was
summarizing, paraphrasing, condensing and exaggerating what was said, in
addition to concealing the errors and omissions in his translation.” (Bouanga
at para 10).
[16]
In this case, there is no evidence beyond Mr.
Shani’s bald assertion, to support the argument that discrepancies in his
evidence are attributable to translation errors. The record does not identify
examples of translation errors nor were examples identified in the course of
oral submissions.
[17]
Furthermore, the RAD’s rejection of Mr. Shani’s
explanation for discrepancies in his evidence is not based solely on the qualifications
of accredited translators. The RAD decision also noted numerous discrepancies
on fundamental issues, including how Mr. Shani became aware of the murder that
was the basis of his claim and who witnessed the murder. The RAD described
these discrepancies as “dramatic and telling”.
[18]
I cannot conclude that it was unreasonable for the
RAD to make reference to the qualifications of accredited interpreters as a
reason for rejecting Mr. Shani’s explanation for inconsistencies in his
evidence. The RAD did consider Mr. Shani’s explanation. The rejection of that
explanation falls within the range of possible, acceptable outcomes defensible
in respect of the facts and law.
IV.
Conclusion
[19]
The RAD did not err in considering Mr. Shani’s
appeal. The RAD’s decision is justified, transparent and intelligible, and
within the range of possible, acceptable outcomes defensible in respect of the
facts and law.
[20]
The parties have not identified a question of
general importance, and none arises.
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