Docket: IMM-1960-16
Citation:
2017 FC 306
St. John’s, Newfoundland and Labrador, March 23, 2017
PRESENT: The
Honourable Madam Justice Heneghan
|
BETWEEN:
|
|
GIZACHEW TEGEGN
ABEGAZ
|
|
Applicant
|
|
and
|
|
THE MINISTER OF
CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
Mr. Gizachew Tegegn Abegaz (the “Applicant”)
seeks judicial review of the decision of the Immigration and Refugee Board, Refugee
Appeal Division, dismissing his appeal from a negative decision of the Refugee
Protection Division, denying his claim for protection as a Convention refugee
or a person in need of protection, pursuant to section 96 and subsection 97(1),
respectively, of the Immigration and Refugee Protection Act, S.C. 2001,
c. 27 (the “Act”).
[2]
The Applicant is a citizen of Ethiopia. He
sought protection in Canada on the basis of his Amhara ethnicity, his political
views and his desertion from the military. The Immigration and Refugee Board,
Refugee Protection Division (the “RPD”) dismissed his claim on the grounds that
the Applicant was not credible and failed to provide evidence of a subjective
fear. The RPD also found that the Applicant had reavailed himself of
protection in Ethiopia, when he returned in 2014.
[3]
The Applicant’s appeal to the RAD was also
dismissed, on the grounds that he was not credible and that the RPD did not err
in either its process or conclusions.
[4]
In this application for judicial review, the
Applicant argues that his right to procedural fairness was breached because
there were serious errors in the translation of his evidence before the RPD and
the lawyer who represented him before the RAD did not appreciate the errors of
translation because he did not speak Amharic, the Applicant’s language.
[5]
The Applicant also submits that his subjective
fear of returning to Ethiopia did not arise until he received a phone call in April,
2015. In these circumstances, the findings of the RPD about reavailment and
delay in making his claim do not apply.
[6]
Finally, the Applicant argues that the RAD erred
in finding a lack of subjective fear when there was objective evidence about
the persecution of people with his profile, that is a deserter from the
military.
[7]
The Minister of Citizenship and Immigration (the
“Respondent”) submits that the arguments about breach of procedural fairness
relate to the decision of the RPD, not to the decision of the RAD, the decision
which is the subject of this application for judicial review.
[8]
The Respondent argues, in the alternative, that
the standard of interpretation was proper and the Applicant waived his
objections to the interpretation when he did not raise it before the RPD or
before the RAD. In any event, the Respondent submits that the interpretation
was sufficient to allow the Applicant to understand the proceedings and to
present his case.
[9]
The Respondent also submits that the RAD did not
ignore the significance of the phone call and its finding of reavailment was
reasonable.
[10]
Finally, the Respondent argues that the
lack of evidence of subjective fear was a sufficient basis to reject the
Applicant’s claim.
[11]
The alleged breach of procedural fairness is
reviewable on the standard of correctness; see the decision in Canada
(Citizenship and Immigration) v. Khosa, [2009] 1 S.C.R. 339. The RAD’s
findings of reavailment and lack of subjective fear are reviewable on the
standard of reasonableness; see the decisions in Canada (Minister of
Citizenship and Immigration) v. Nilam, 2015 FC 1154 and Arslan v. Canada
(Minister of Citizenship and Immigration) (2011), 16 Imm. L.R. (4th) 271
(F.C.).
[12]
According to the decision in Dunsmuir v. New
Brunswick, [2008] 1 S.C.R. 190 at paragraph 47, the standard of “reasonableness” requires that a decision be
justifiable, transparent and intelligible, and falls within a range of
acceptable outcomes.
[13]
I agree with the submissions of the Respondent
on the issue of alleged inadequate interpretation.
[14]
This problem, if there was a problem, should
have been raised at the first available opportunity, that is before the RPD. I
refer to the decision in Mohammadian v. Canada (Minister of Citizenship
& Immigration) (2001), 271 N.R. 91 (F.C.A.). It was not. Neither
was it raised before the RAD.
[15]
The most important aspect of interpretation is
that a person seeking protection in a hearing before the RPD understands what
is happening. In Dhaliwal v. Canada (Minister of Public Safety and Emergency
Preparedness), 2015 FC 157 at paragraph 67, the Court reviewed the issue of
interpretation and concluded that the necessary element was “linguistic understanding between the parties”.
[16]
Considering the submissions of the parties, I am
not persuaded that any breach of procedural fairness arose from the manner in
which the interpreter discharged her mandate. It is not necessary for me to
address the issue of waiver.
[17]
The RPD found that the Applicant had reavailed himself
when he returned to Ethiopia in 2014. He returned to Ethiopia in between jobs
working at sea in 2014 and 2015. The record is unclear whether he visited
Ethiopia in the course of his employment or only in between his two employment
contracts.
[18]
The RAD found that the RPD had not erred in
using the term “reavailment”. Specifically, it
found that the RPD had used the term to refer to the Applicant’s voluntary
return to Ethiopia in the context of credibility findings. The Applicant argued
before the RAD that the term is only relevant during cessation proceedings. The
RAD noted that the term is used by the UNHCR in a general sense and is not limited
only to situations where a person has already been recognized as a refugee.
[19]
I see no error by the RAD in its consideration
of the issue of reavailment. I do not agree with the Applicant that the term is
only relevant in cessation proceedings; see the decision in Kostrzewa v.
Canada (Minister of Citizenship and Immigration), 2012 FC 1449 at paragraph
26.
[20]
Finally, considering the issue of subjective
fear, the RAD agreed with the finding of the RPD that the Applicant’s evidence
about being a target of the government was too vague and that the Applicant had
failed to establish this essential element of his claim.
[21]
Upon reviewing the Certified Tribunal Record and
considering the oral and written submissions of the parties, I am not persuaded
that the Board committed a reviewable error and that the decision meets
the standard of reasonableness referred to above.
[22]
In the result, this application for judicial
review is dismissed.
[23]
The Applicant proposed the following question
for certification:
In a matter where
inadequacy of interpretation services is not raised as an issue at the Refugee
Appeal Division level, is the Applicant precluded from raising it as an issue
in an Application for Judicial Review.
[24]
The Respondent submits that this question has
already been answered in the jurisprudence.
[25]
I agree with the position of the Respondent and
no question will be certified.
Email this Content