Docket: IMM-414-17
Citation:
2017 FC 769
Ottawa, Ontario, August 15, 2017
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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MESRAK KASSIE
NEBRET
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Applicant
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and
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THE MINISTER OF
CITIZENSHIP AND IMMIGRATION CANADA
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Respondent
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JUDGMENT AND REASONS
I.
Overview
[1]
This is an application for judicial review of a
Refugee Appeal Division [RAD] decision, dated January 4, 2017 and accompanying a
Notice of Decision dated January 11, 2017, confirming the Refugee Protection
Division [RPD] decision determining that the Applicant is not a Convention
refugee pursuant to s. 96 of the Immigration and Refugee Protection Act,
SC 2001, c 27 [IRPA] nor a person in need of protection pursuant to s. 97 of
IRPA.
[2]
As explained in greater detail below, this
application is dismissed, because the Applicant has not satisfied me that she
was denied procedural fairness in connection with the hearing leading to the impugned
decision or that the decision is unreasonable.
II.
Background
[3]
The Applicant, Mesrak Kassie Nebret, is an Ethiopian
citizen of Amhara ethnic background. She came to Canada in April 2011 and made
a refugee claim at the end of 2013 based on her political activities both in
Ethiopia and following her arrival in Canada.
[4]
Ms. Nebret states that, before leaving Ethiopia,
she was engaged to be married to Samuel Debesai, an opposition activist who was
detained at the time she made her application for refugee protection. She also
states that her father was a party member of the previous regime and governor
of the Debat district, who was also detained by the current regime, tortured,
and died shortly after his release in 1993.
[5]
Ms. Nebret claims that she was politically
active while in Ethiopia, as a member of the Coalition for Democracy, Justice
and Unity party and the Unity for Democracy and Justice Party. She asserts in
her Basis of Claims [BOC] form that she was detained twice, in May and August of
2010, was mistreated in prison both times, and was released with a warning to
refrain from engaging in politics. Ms. Nebret asserts fear she will be imprisoned
and tortured if she returns to Ethiopia. She also says that she has continued
her political activities in Canada, participating since 2012 in the activities
of a Toronto-based non-governmental organization named Unity for Democracy and
Human Rights, of which she became a member in 2013.
[6]
The Minister of Citizenship and Immigration intervened
in the claim before the RPD, filling documentary disclosure and written
submissions. Ms. Nebret’s claim was heard before the RPD on May 10, 2016. As
the Amharic interpreter was unable to stay for the entire scheduled sitting,
the matter was adjourned and continued on June 21, 2016, with the assistance of
another interpreter. The RPD rejected Ms. Nebret’s claim on July 15, 2016 on
the basis of credibility concerns. The RPD did not believe that Ms. Nebret had
been politically active in Ethiopia, that she had been detained and imprisoned
as alleged, or that she ever came to the attention of the alleged agents of
persecution. The RPD also had credibility concerns about the evidence of
Ms. Nebret’s political activities in Canada and found that she had not
established with credible evidence that such activities would be known to
Ethiopian authorities. She appealed the RPD’s decision to the RAD and now seeks
judicial review of the RAD’s dismissal of her appeal.
III.
Issues and Standard of Review
[7]
The Applicant raises the following issues for
the Court’s consideration:
A. Whether inadequate interpretation services provided at the RPD
hearing infringed the Applicant’s right to procedural fairness;
B. Whether the RPD’s use of English in the hearing infringed the
Applicant’s right to procedural fairness;
C. Whether the RAD erred in the assessment of the Applicant’s
credibility;
D. Whether the decision to deny the Applicant’s sur place claim
was reasonable.
[8]
The Applicant argues, and I concur, that the
issues related to procedural fairness are reviewable on a standard of
correctness (see Canada (Minister of Citizenship and Immigration) v Khosa,
2009 SCC 12) and that the RAD’s findings with respect to the Applicant’s
credibility and sur place claim are reviewable on the standard of
reasonableness (see Dunsmuir v New Brunswick, 2008 SCC 9).
IV.
Analysis
A.
Whether inadequate interpretation services
provided at the RPD hearing infringed the Applicant’s right to procedural
fairness
[9]
Ms. Nebret argues that the interpretation at the
hearing before the RPD was inadequate, in that the interpreter changed the
meaning of words, conveyed thoughts different from that which were meant by the
participants, omitted words, and added content that was not said during the
hearing. She submits that, as a result of these errors, she was prevented from
properly presenting her claim and the RPD was prevented from properly
understanding it. In support of this argument, Ms. Nebret has filed a
translation prepared by a legally trained employee of her counsel’s office, who
is fluent in the Amahric and the English languages and has experience in
providing interpretation services. This document sets out excerpts from the RPD
hearing, translating into English certain statements made in Amahric by both
Ms. Nebret and the interpreter.
[10]
Ms. Nebret correctly submits that the right to
an interpreter in a refugee proceeding is enshrined in s. 14 of the Canadian
Charter of Rights and Freedoms, that the interpretation must be precise,
continuous, competent, impartial and contemporaneous, and that no proof of
actual prejudice is required as a condition of obtaining relief in the case of
inadequate translation (see Mohammadian v. Canada (Minister of Citizenship
and Immigration), 2001 FCA 191 [Mohammadian]; Licao v Canada
(Minister of Citizenship and Immigration), 2014 FC 89 [Licao], at
para 26).
[11]
However, Ms. Nebret also acknowledges that
interpretation services are not expected to be perfect and that not every
interpretation error constitutes a breach of procedural fairness. She refers to
the decision of this Court in Batres v Canada (Minister of
Citizenship and Immigration), 2013 FC 981, which addressed an argument that
erroneous translation led the RPD to make adverse credibility findings. Justice
McVeigh observed at paragraph 12 that, where there are errors in translation,
the errors must be material to the credibility findings in order to grant
relief. Ms. Nebret submits that translation errors made during her RPD hearing
prevented her from being able to tell her story and are material to the RPD’s
credibility findings.
[12]
These arguments were raised before the RAD,
which reviewed the translated excerpts from the RPD hearing. The RAD agreed
that there were interpretation errors but concluded that they were not errors
of significance and did not prevent Ms. Nebret from understanding the
proceeding or telling her story. I agree with the RAD’s conclusion that there
were errors in the interpretation. However, as noted by the Respondent, the
Applicant has not provided a side by side translation of the entire hearing.
Therefore, like the RAD, the Court can only work with the translated excerpts
that are available and must assess from those excerpts whether the errors are
material and reveal that they prevented her from communicating her case to the
RPD.
[13]
At the hearing of this application, Ms. Nebret’s
counsel focused upon three particular areas of the hearing transcript excerpts
which demonstrate deficiencies in the interpretation. One of these areas
relates to whether Ms. Nebret’s understanding of the English language was
sufficient that she could testify in English or whether she should use the
services of an Amharic interpreter. This area will be addressed below in my
analysis of the second issue raised by the Applicant, i.e. whether the RPD’s
use of English in the hearing infringed her right to procedural fairness.
[14]
The other areas focused upon by Ms. Nebret’s
counsel involved her testimony surrounding the prison in which she alleges she
was detained in Ethiopia and her testimony about her treatment while detained. In
connection with her treatment while detained, the RPD asked how she was treated
in prison, which the interpreter translated as an inquiry as to how she was
arrested. I agree with Ms. Nebret that this demonstrates a translation error.
However, it does not appear to have prevented her from telling her story, as
she has also included excerpts in which she described physical abuse by her
captors. Ms. Nebret also points out interpretation errors in this evidence, in
that she testified she was mistreated, which the interpreter translated as
being pushed and tortured. When the RPD asked what she meant by tortured, she
referred to being pushed around and punched. The interpreter translated this as
“just they kicked us with their hands”. The RPD
asked if she had been beaten, and she confirmed that she was. Again, while I
agree that there was a lack of precision in some of this interpretation, the
translated excerpts provided by Ms. Nebret do not demonstrate that this
prevented her from communicating the mistreatment to which she says she was
subjected in prison or otherwise from communicating her claim.
[15]
Turning to Ms. Nebret’s testimony surrounding
the prison, she refers to an exchange in which the RPD asked about “central prision”, translated by the interpreter as “Meakelawi prison”, and Ms. Nebret responded by
referring to “Meakelawi”, which the interpreter
translated as “central prison”. The RAD’s
decision refers to objective evidence that “Meakelawi”
means “central” in Amharic, and I do not
understand Ms. Nebret to be arguing otherwise. It is therefore not clear to me
that this exchange demonstrates an error in translation. Ms. Nebret also refers
to several translated transcript excerpts which demonstrate the RPD asking her
to explain why she did not discuss in her narrative the area or name of the
prison where she was taken when arrested. I agree that these inquiries were not
translated properly.
[16]
However, it is not possible to characterize
translation errors in the two areas highlighted by Ms. Nebret as material to
the rejection of her claim. While the RPD made adverse credibility findings
related to her failure to mention in her BOC the name of the prison at which
she was detained and omission of the details of her mistreatment, the RAD
agreed with her submission on appeal that these were minor omissions and that
the RPD had erred by making these particular credibility findings. The RAD
considered these errors to relate to two relatively minor credibility
conclusions, which did not change the RAD’s overall determination that Ms.
Nebret had not established with credible or trustworthy evidence that she was
politically active, that she was detained, that she was or is sought by the
authorities for any reason, or that she was or is perceived as a political
dissident.
[17]
In the interests of completeness, I note that
the Applicant’s Memorandum of Facts and Law recites other translated transcript
excerpts as examples of alleged interpretation errors. I have reviewed these
excerpts in the Memorandum of Facts and Law and have not identified any errors
that I would consider to be material to the credibility findings upon which the
rejection of Ms. Nebret’s claim for protection was based.
[18]
I am therefore satisfied that the RAD correctly
concluded that the translation errors did not result in a denial of procedural
fairness.
B.
Whether the RPD’s use of English in the hearing
infringed the Applicant’s right to procedural fairness
[19]
Ms. Nebret notes that on the first day of the
hearing, May 10, 2016, the RPD concluded that Ms. Nebret required the services
of an interpreter and therefore adjourned the hearing. She argues that, when
the hearing reconvened on June 21, 2016, the RPD insisted that the hearing
proceed, at least in part, in English. Ms. Nebret takes the position that this
represents the RPD revisiting its previous decision, to proceed using the
services of an interpreter, without any support for such decision other than
her having demonstrated a working proficiency in the English language and
stating in her BOC that she speaks English.
[20]
In connection with this issue, Ms. Nebret refers
to translated transcript excerpts which demonstrate the RPD querying her
capacity with the English language. On the first day of the hearing, the RPD
expressed the view that Ms. Nebret needed the services of an interpreter and,
although Ms. Nebret wanted to speak in English, the RPD did not consider this
to be a good idea. On the second day, when the hearing reconvened with the
benefit of an interpreter, the RPD asked Ms. Nebret whether she was listening
to the RPD’s English questions or solely to the Amharic translations. The RPD
conveyed that she had the option of testifying in English, and she responded
that she would try.
[21]
Ms. Nebret argues, and I agree, that these
communications by the RPD were not interpreted well. However, the translated
transcript also demonstrates the RPD asking counsel to advise whether he would
prefer that Ms. Nebret speak in English, to which counsel responds that he
would ask her to speak in Amharic, as a result of which the RPD states that
they will stay with the interpretation. A subsequent excerpt from the
transcript demonstrates the RPD noting that Ms. Nebret was answering English
questions without listening to the Amharic interpretation. The RPD again
queried whether she was comfortable speaking in English, she responded that she
preferred the assistance of the interpreter, and the RPD reminded her that the
interpreter would speak in Amharic for her. While this exchange was again
imperfectly translated, the translated excerpt nevertheless demonstrates that
it was Ms. Nebret who was departing from reliance on the translator and that
the RPD was aware of this and raised the point with her. It also demonstrates
that she understood the point that the RPD was raising, expressing her
preference for using the interpreter, and that the RPD reached and conveyed the
same conclusion as on the first day of the hearing, that Ms. Nebret should use
the available Amharic translation services.
[22]
This issue was raised before the RAD, which
noted that it was the RPD which recommended on the first day of the hearing
that Ms. Nebret use the services of the interpreter and adjourned the hearing
after the interpreter became unavailable. The RAD observed that, at the second
sitting, the RPD offered that that Ms. Nebret could testify in English and she
agreed, but that the RPD then consulted counsel on this issue, following which
the RPD decided that Ms. Nebret should use the services of the interpreter
and asked Ms. Nebret to avoid listening to the questions in English. I find
that the RAD has correctly interpreted the transcript excerpts relevant to this
issue, and I agree with the RAD that Ms. Nebret has not established, as she
alleges, that the RPD insisted that she speak English.
[23]
Ms. Nebret also refers to a paragraph in the
RAD’s decision, which noted that counsel questioned Ms. Nebret, and she
answered, without the services of an interpreter. The RAD observed that this
exchange went quickly and fluidly, with no indication that Ms. Nebret was
struggling to understand or reply. As argued by the Respondent, Ms. Nebret has
not referred to the Court to the portion of the hearing to which this paragraph
refers. There is accordingly no basis for the Court to conclude that the
conduct of this portion of the hearing in English, which appears to have been
prompted by counsel rather than by the RPD, impeded Ms. Nebret’s ability to present
her claim or otherwise denied her procedural fairness. The RAD found that, if
Ms. Nebret had concerns about testifying in English, she or her counsel
should have raised these concerns at the earliest opportunity. The RAD also
found that the record demonstrates that it was Ms. Nebret who was eager to
speak in English and that it was the RPD who preferred the use of the
interpreter.
[24]
I agree with the RAD’s interpretation of the
record and its application of the relevant legal principle, that waiver of the
right to adequate translation results if an objection to the quality of the
translation is not raised by the claimant at the first opportunity in those
cases where it is reasonable to expect that a complaint be made (see Mohammadian;
Licao, at para 26).
[25]
Finally, I note the RAD’s conclusion that the
RPD did not err by referring to the fact that Ms. Nebret obtained a work visa
which required a working knowledge of English. I find no error in this
observation by the RPD, which the RPD stated as support for Ms. Nebret’s own
testimony that she is fluent in English. Similarly, the RAD noted that Ms.
Nebret listed English and Amharic in her BOC as the two languages she speaks. Even
without the benefit of this information as to Ms. Nebret’s capacity in English,
I find no error by the RAD in its analysis of this issue and its conclusion
that Ms. Nebret was not denied procedural fairness. The RAD’s analysis is not dependent
upon this information as to her linguistic capacity. However, this information
does further support the correctness of the conclusion.
C. Whether the RAD erred in the assessment of the Applicant’s
credibility
[26]
Ms. Nebret submits that the RAD erred in
confirming the RPD’s findings on credibility. She notes that, in relation to
her father, the RPD observed that Ms. Nebret did not allege in her BOC form
that her father’s background was raised during her detentions and that, in her
oral testimony, she made no allegation of her father’s background being known
to the alleged agents of persecution. Rather, she said she was questioned about
why she was carrying on political activities in her area. However, Ms. Nebret
submits that the RPD did not ask her if her father’s political profile was
raised during her detentions and that it was therefore an error for the RPD to
impugn her credibility on the basis of questions that were never asked (see Buwu
v Canada (Citizenship and Immigration), 2013 FC 850, at para 18). She
further argues that, in the absence of such questions, the RPD’s finding that
her father’s profile played no role in her detention is simply speculation and
cannot support a negative credibility finding.
[27]
This argument was raised before the RAD, which
analysed the RPD’s reasoning as being that there was a lack of evidence to
support a key allegation, that Ms. Nebret was sought and harmed by the
authorities in part because her late father was known to be a political
opponent of the regime. Ms. Nebret’s own evidence did not include reference to
her father’s profile being raised during her detentions. The RAD considered
this to be a valid observation by the RPD based on the record, and the RAD made
the same observation.
[28]
Conscious of the deferential standard applicable
to the Court’s consideration of this aspect of the RAD’s decision, I am unable
to conclude the RAD’s analysis to be unreasonable. The RAD considered Ms.
Nebret’s argument and adopted an interpretation of the RPD’s decision which is
within the range of possible, acceptable outcomes.
[29]
Ms. Nebret also submits that the RPD erred in
making an adverse credibility finding based on the omission of her second
detention in one of the three application forms she submitted in support of her
claim for protection. She notes that the date of the detention was consistent
in the other two forms and was confirmed by her in oral testimony. She argues
that the omission was a minor inconsistency which does not support an adverse
credibility finding and that the RAD erred in confirming that this finding was
reasonable.
[30]
The RAD’s decision demonstrates that it
considered this argument but concluded that, because the alleged detentions and
mistreatment go to the very heart of the refugee claim, Ms. Nebret’s
unexplained omission of a key fact did damage her credibility. The RAD reached
the same conclusion as the RPD. I find the RAD’s analysis to be reasonable, and
there is no basis for the Court to interfere.
[31]
In relation to the country condition evidence, Ms.
Nebret submits that the RAD failed to analyze the changed conditions in
Ethiopia and how they could impact her upon return. She submits that the
likelihood of her persecution has increased in light of the new situation, and
that the RAD ought to have considered the experiences of similarly situated
persons in her country (see Chaudri v Canada (Minister of Employment and
Immigration), (1986), 69 NR 114 (FCA)).
[32]
The RAD admitted into evidence, under section
110(4) of IRPA, documentary evidence of events relating to a state of emergency
in Ethiopia in October 2016. However, the RAD explained that this evidence did
not assist Ms. Nebret, as she had not established with credible evidence that
she was or is sought by the authorities, or was or is perceived as a political
opponent of the government. Again, I find the RAD’s analysis reasonable. While
Ms. Nebret refers to the new evidence as describing the deepening of human
rights violations in Ethiopia, including the detention and mistreatment of
protesters, the RAD reasonably concluded that this evidence was not probative
of Ms. Nebret’s risk, given her failure to establish and that she is personally
likely to be of interest to the authorities.
[33]
Finally, Ms. Nebret notes that the RPD concluded
that the fact she was issued a genuine passport, within a few days of her
alleged release from detention, indicated on a balance of probabilities that
she was not detained as she alleged. She argues that this represented an implausibility
finding and that the RAD erred in confirming this finding. She referred the
Court to two documents from the National Documentation Package [NDP], which she
submits were not referenced in, and contradict, the finding.
[34]
The RAD referred to objective evidence
indicating that the authorities harass and detain members and supporters of
opposition parties that the government regularly arrests political opponents
and subjects them to intimidation, abuse and torture, and that dissidents are
kept under surveillance. The RAD noted that the Ethiopian government has
prevented political opponents from travelling abroad and that Ms. Nebret
alleged that after her detentions she was warned that the authorities would
monitor her and that she was told to report to the authorities each week. The
RAD concluded, after reviewing the objective evidence and Ms. Nebret’s own
evidence, that it was implausible that she was able to obtain both a passport
and a police clearance certificate without difficulty almost immediately after
her release.
[35]
Ms. Nebret refers the Court to two Responses to
Information Requests from the NDP. She notes that one refers to it being very
easy to obtain a passport in Ethiopia and that the other explains the manner in
which a person’s passport can be seized for outstanding criminal charges. The
latter document states that such seizure is not automatic. Rather, if the
public prosecutor has reason to believe that a person will leave the country
that office will petition the court that the passport be withheld. This
document also states that, if bail is granted by a court, and the court decides
to restrict the right of the person to travel outside Ethiopia, it simply gives
such restriction order to the immigration authorities with no need to seize
travel documents.
[36]
In my view, these Responses to Information
Requests do not contradict the RAD’s analysis in a way which would support a
finding that the decision is unreasonable. The fact that passports are
generally easily obtained does not address whether such ease applies in the
case of political opponents of the government. The second document referenced
by Ms. Nebret addresses seizure of a passport that has already been issued, and
other means of prohibition against travel, in the case of someone who has been prosecuted
for a criminal offense. It does not address the availability of a new passport
to political opponents of the government, which was the subject of the RAD’s analysis.
[37]
In conclusion on this issue, none of the
arguments raised by Ms. Nebret, related to the RAD’s analysis of her
credibility, represent a basis to find its decision unreasonable.
D. Whether the decision to deny the Applicant’s sur place claim was
reasonable
[38]
In connection with her sur place claim,
Ms. Nebret submits that that the RAD erred by imposing a higher standard of
proof than is required by law. She argues that the RAD expected her to prove
that the Ethiopian government was aware of her activities, but that the
applicable standard of proof for a sur place claim is a likelihood or
balance of probabilities, i.e. whether the claimant’s activities are likely to
come to the attention of the authorities in his or her country (see Win v
Canada (Minister of Citizenship and Immigration), 2008 FC 398).
[39]
I accept Ms. Nebret’s statement of the
applicable standard of proof but otherwise find no merit to this argument. The
RAD held that she must establish that she faces a serious possibility of
persecution in her country of origin and that there were credibility problems
with her evidence about her political activity in Canada. The RAD concluded
that there was no credible evidence that her activities in Canada had come to
the attention of Ethiopian authorities or that there is more than a mere
possibility that she will be persecuted because of perceived political
activities. I do not read the decision as articulating or applying a standard
of proof at odds with the applicable jurisprudence. Rather, the RAD found her there
was no credible evidence to assist her in meeting that standard.
[40]
Ms. Nebret also submits that the RAD’s finding
that she has not established that her activities came to the attention of the
Ethiopian authorities was wrong, given the evidence she provided of her
political activities in Canada and the monitoring activities of the Ethiopian
government with respect to diaspora Ethiopians. She states that the documentary
evidence clearly shows that the government monitors the activities of its
opponents in the diaspora and that it is clear that her activities were
conducted openly and vocally and will be viewed negatively by the Ethiopian
government.
[41]
Again, I find no merit to this submission. Ms.
Nebret is asking the Court to reweigh the evidence that was before the RAD,
which is not the role of the Court on judicial review. Moreover, as noted by
the Respondent, the RAD admitted into evidence on appeal printouts of pages
from Ms. Nebret’s Facebook account demonstrating that, between the filing of
her notice of appeal and the perfection of the appeal, she posted several
political items on Facebook. The RAD concluded that this did not corroborate
her claim that she had been politically active in Canada for some time. Rather,
it undermined her credibility, because it created the impression that, for
purposes of the appeal, she quickly and briefly created evidence found lacking
by the RPD. The RAD found in any event that there was no indication that these few,
brief social media postings had or will come to the attention of the Ethiopian
authorities. I can find no fault with the reasonableness of this analysis.
V.
Conclusion
[42]
Having found that the Applicant’s submissions
have demonstrated no reviewable error, this application for judicial review
must be dismissed. The parties raised no question for certification for appeal,
and none is stated..
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