Docket: IMM-2010-17
Citation:
2017 FC 1095
Ottawa, Ontario, December 4, 2017
PRESENT: The
Honourable Mr. Justice Southcott
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BETWEEN:
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ZAMAN ALI NOORI
TOORPAKAI NOORI
MAHMOODA NOOR
ZUBAIDULLAH
NOORI
FARHANAZ NOORI
HABIBULLAH
NOORI
FRISHTA NOORI
SAMEERA NOORI
NOORULLAH NOORI
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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.
Overview
[1]
This is an application for judicial review of a
decision dated March 1, 2017, by an immigration officer [the Officer] at the
Canadian High Commission in Islamabad to reject the Applicants’ application for
permanent residence as Convention refugees, because of credibility concerns
developed by the Officer during the process of interviewing the Applicants [the
Decision].
[2]
As explained in greater detail below, this
application is dismissed, because the Applicants have not demonstrated that the
Officer’s conclusions, surrounding credibility and inability to assess
admissibility, were unreasonable or that the Applicants were provided with inadequate
translation services during the interview.
II.
Background
[3]
The Applicants are Zaman Ali Noori [the
Principal Applicant], his wife, and their seven children, who are citizens of
Afghanistan. While the Applicants have lived in Pakistan since 1997, their
status there is only valid until the end of 2017. The Applicants submitted an
application from Pakistan, seeking permanent residence in Canada as Convention
refugees. They allege that, while the Principal Applicant and his wife and
eldest daughter were living in Afghanistan, the Principal Applicant’s brother
was kidnapped and returned only after a ransom was paid. They claim that they
fled Afghanistan because the Taliban were looking for the Principal Applicant,
that his family were beaten when the Taliban could not find him, and that they
generally fear their lives would be at risk if they return to Afghanistan
because of insecurity in the region and the persecution of their ethnic and
religious groups in that country. The Applicants attended an interview with the
Officer on February 27, 2017, assisted by an interpreter who translated between
English and Dari.
[4]
The Officer found that there were
inconsistencies in the Principal Applicant’s statements with respect to his
military service and that his narrative about his brother’s kidnapping was not
consistent with the brother’s own account of the event, provided to Canadian
authorities when he himself sought refugee status in Canada. The Officer raised
concerns about these two issues at the interview, and the Principal Applicant was
provided with an opportunity to respond, but the responses did not disabuse the
Officer of these concerns. The Officer was not satisfied that the Principal
Applicant was eligible for Convention refugee status and not inadmissible to
Canada and therefore denied his application.
III.
Issues and Standard of Review
[5]
The Applicants identify the following issues for
the Court’s consideration:
A. Did the Officer make erroneous findings on credibility and
admissibility by failing to have regard to the evidence and by misunderstanding
the evidence?
B. Did the Officer fail to consider the inconsistencies in the Principal
Applicant’s evidence in the context of the totality of the evidence and
objective evidence?
C. Did the Officer fail to observe principles of natural justice and
procedural fairness by not providing the Principal Applicant with a fair
hearing and with adequate interpretation?
[6]
The parties agree, and I concur, that the
standard of review is correctness for issues related to the duty of procedural
fairness and that the standard of review is reasonableness for issues related
to the Officer’s assessment of the evidence and the Principal Applicant’s credibility.
IV.
Analysis
A. Did the Officer make erroneous findings on credibility and
admissibility by failing to have regard to the evidence and by misunderstanding
the evidence?
[7]
The Decision states that that the Officer was
unable to be satisfied that the Principal Applicant was eligible for status as
a Convention refugee and that he was not inadmissible, because of concerns that
he was not being truthful in his interview. The subject of that interview with
which the Applicants principally take issue was Officer’s questioning about the
Principal Applicant’s training in and use of weapons during his military
experience. The Global Case Management System [GCMS] notes show that the Principal
Applicant explained that he served in the Afghan military twice, from 1983 to
1986 in Kandahar and from 1988 to 1991 in Baghlan. He stated that he did not
receive or provide weapons training and, when asked if he had ever fired a gun,
he answered in the negative and stated that he didn’t touch any arms when he
was in training. The GCMS notes demonstrate that the Officer questioned this
evidence, finding it hard to believe that the Afghan government would be
recruiting soldiers during wartime and not provide them with any weapons
training. After being reminded of the requirement to be truthful, the Principal
Applicant stated that the second time he was in the military, he learned to use
an AK-47, but just to open it, and the first time he was in the military he was
trained to use a “carbine” (which the Officer
noted from open-source research was a long-arm firearm). When asked if he learned
to fire the gun, he replied in the affirmative that he received shooting
training.
[8]
Later in the interview, the Officer returned to
this area of questioning, explaining his or her concerns about the information
the Principal Applicant had provided and affording the Applicants an opportunity
to respond. The GCMS notes capturing this component of the interview read as
follows:
... MILITARY EXPERIENCE/WEAPONS TRAINING I
asked you if you had received or provided any weapons training during your
military experience and you said no. I asked if you had ever fired a weapon,
you said that you did not touch any arms while in training. Only after repeated
questioning did you admit that you had in fact been trained on AK – 47 and
Carbine. PA Response: In Kandahar, they forced me. You stated earlier that the
first military experience was mandatory and the second time it was forced. The
second time you said they forced you correct? The situation of war was there
the first time. I served for 3 years then my training was over. After military
service you have to spend three years in my home after that it was mandatory
the second training. I stayed 18 months and they took me by force. How did they
take you by force? The government was searching you at home, when they found
you they took you by force. You stated repeatedly that you had never been
trained to use weapons, nor had you ever fired a gun. In fact, after a series
of questioning, you confirmed you had fired a gun. PA: When I was in training
you have to guide the new recruits, how to walk, how to choose weapons. Repeat
that he had not been truthful nor forthcoming about his experience and training
with weapons. PA: For the first time, we didn’t have training of weapons we
just learned training device. Earlier, you said you were trained to use an
AK47, when was that? For the second time. The teacher taught us that. My
concern is that after repeated questioning, your answers continue to change and
you have not been forthcoming or truthful about your weapons training.
[9]
The Applicants argue that there was confusion in
this area of questioning and a possibility of misunderstanding that was never
clarified by the Officer. They submit that the Officer was referring to “military experience”, while the Principal Applicant
was referring to “training” and used the terms “military service” and “military
training” interchangeably. I find little merit to this submission. The
Officer’s use of the term “military experience”
in the GCMS notes reads as a broad reference to the Principal Applicant’s
service in the Afghan military. The Principal Applicant sometimes used the term
“training” with a similar meaning, i.e. relating
to his military service, and sometimes in the sense of receiving instruction.
However, the GCMS notes do not demonstrate any confusion arising from such use
of these terms or support a conclusion that the inconsistencies in the
Principal Applicant’s evidence resulted therefrom.
[10]
The Applicants also submit that the Officer
approached the interview as a cross-examination rather than providing a
meaningful opportunity for the Applicants to understand and respond to the
Officer’s concerns. They note in particular the Officer saying to the Principal
Applicant that he stated repeatedly that he had never been trained to use or
ever fired a gun. They submit this mischaracterizes the evidence, arguing that,
although the Officer repeatedly pursued this line of questioning, the Principal
Applicant provided this answer only once.
[11]
The GCMS notes record that the Principal
Applicant stated first that he did not provide or receive weapons training, and
then that he did not ever fire a gun and did not touch any arms while he was in
training. This evidence would perhaps be better characterized as successive
statements to the same effect, rather than a repetition of the same statement.
However, the GCMS notes do not demonstrate the Officer’s characterization of this
evidence to have caused the Principal Applicant any confusion.
[12]
Nor do I read the notes as demonstrating that
the Officer treated the Principal Applicant in an inappropriate way in how he
or she conducted this line of questioning. Rather, they show that the Officer
initially found the Principal Applicant’s evidence as to the lack of
involvement with firearms to be implausible. The Officer therefore pursued the
area further, resulting in what the Officer considered to be inconsistent
testimony, following which the Principal Applicant was given an opportunity to
explain the inconsistency. The Officer’s assessment of this component of the
interview is captured in the GCMS notes as follows:
MILITARY EXPERIENCE/WEAPONS TRAINING o
Applicant stated that he served with the Afghan military twice, from 1983–1986
(Kandahar) and from 1988-1991 (Baghlan). o Applicant stated that during his
second service, he worked at the Training Center, training new recruits o
Applicant stated that during his military experience he did not receive or
provide weapons training. o Applicant stated that he never fired a gun and had
not touched any arms while he was in training. Only after repeated questioning,
did the applicant admit that he had been trained to use an AK-47 and a Carbine
(long-arm firearm), and that he had learned to fire weapons.
[13]
I find nothing inaccurate in this summary of the
evidence or anything unreasonable in the Officer’s subsequent conclusion that
discrepancies in the Principal Applicant’s evidence and lack of truthfulness
after repeated questioning raised concerns about the veracity of his evidence.
[14]
The Applicants also argue that the Officer
failed to consider the documentary evidence represented by his military
card/certificate and national identity card that were submitted by the
Principal Applicant to the Canadian Embassy on the day of his interview. I note
that at the hearing before the Court the parties took different positions on
whether this documentary evidence was or should have been before the Officer.
The Respondent points out that these documents are not part of the Certified
Tribunal Record. However, the Principal Applicant states in his affidavit,
filed in support of this application, that he submitted these documents to an
officer at the Canadian Embassy on the day of the interview.
[15]
Regardless of the question whether these
documents were available to the Officer, I find them to be of little relevance
to the Officer’s concerns about the Principal Applicant’s credibility. The
English translation of the national identity card contains no information about
the use of weapons. The Applicants point out that the military card/certificate
has a column for “Receiving” and “Returning back” of weapons, both of which are blank.
However, it is difficult to see how this document could be relevant to the
question of whether the Principal Applicant was trained in the use of weapons
or, more importantly, whether he gave inconsistent evidence on that subject.
[16]
I also note the Applicants’ submission that they
made no effort to hide the fact of the Principal Applicant’s military service.
They argue that the Officer should have taken into account this candour, as
well as the Principal Applicant’s lack of sophistication, his grade 6
educational background, and the fact that almost 30 years had passed since his
military service, in assessing his credibility. While those are all valid
points to be taken into account, the fact that they are not expressly
referenced by the Officer in the GCMS notes or the Decision is not a basis to
conclude that the Decision is outside the range of reasonable, acceptable
outcomes and therefore unreasonable.
[17]
Finally, the Applicants argue that the Decision
is unreasonable because the Officer asked the Principal Applicant no questions
about his admissibility to Canada and conducted no analysis of his
admissibility. The Respondent’s position on this argument is that the
inconsistencies in the Principal Applicant’s evidence caused the Officer’s
sufficient concerns about the veracity of his testimony that further inquiries
were precluded and the Officer was unable to conduct an admissibility
assessment.
[18]
I agree with the Respondent’s characterization
of this aspect of the Decision. The GCMS notes expressly state that the
discrepancies in the Principal Applicant’s evidence identified by the Officer
and his lack of truthfulness after repeated questioning raised concerns about
the veracity of the rest of the testimony the Principal Applicant had provided
during the interview. The notes state that, as a result, the Officer was unable
to be satisfied that the Principal Applicant is eligible and is not
inadmissible. An immigration officer can reject an application without a
specific finding of inadmissibility, on the basis that he or she cannot
actually determine that the applicant is not inadmissible (see
Ramalingam v Canada (Citizenship and Immigration), 2011 FC 278 at para 37).
If an applicant is untruthful, this can affect the reliability of the whole of
his or her testimony, and an officer may be unable to conclude that the
applicant is not inadmissible (see Muthui v Canada (Citizenship and
Immigration), 2014 FC 105 at para 33).
[19]
It is important to note that the Officer’s
findings as to discrepancies arising from the Principal Applicant’s interview
extended beyond his testimony surrounding weapons use. The Officer was also
concerned that his narrative about his brother’s kidnapping was inconsistent
with the brother’s own account. Contrary to what he told the Officer during the
interview, the Principal Applicant states in his affidavit filed in support of
this application for judicial review that he was not present when his brother
was captured by the Taliban. He says that, when the Officer asked him about the
place where the incident took place, he did not know, could not respond, and
told the Officer he had forgotten. But when the Officer insisted, he said that
his brother was taken from outside their shop.
[20]
The Respondent correctly argues that this
explanation does not form part of the evidence before the Officer and therefore
cannot be taken into account in assessing the reasonableness of the Officer’s
decision. The Officer gave the Principal Applicant an opportunity to address
this particular inconsistency, and he did not provide this explanation.
Moreover, even if it was appropriate to consider this explanation in the
Principal Applicant’s affidavit, I cannot conclude that this admission, that he
gave the Officer information that was not accurate, can assist him in
challenging the reasonableness of the Officer’s conclusions as to his
credibility and resultant inability to assess his inadmissibility.
B. Did the Officer fail to consider the inconsistencies in the
Principal Applicant’s evidence in the context of the totality of the evidence
and objective evidence?
[21]
The Applicants argue that, independent of the
Principal Applicant’s credibility, the Officer was required to consider their
eligibility for Convention refugee status based on their Hazara ethnicity and
Shia religious faith, which they asserted in their claim subjected them to
persecution in Afghanistan. The Applicants also refer to the concern about the
safety of their children and note that the Officer did not challenge the Principal
Applicant’s evidence about the Taliban searching his home and beating his
family before their departure for Pakistan.
[22]
The Applicants are correct that the Officer did
not analyse these assertions or assess whether they were supported by the
country condition evidence. However, as analyzed above, the Officer was unable
to be satisfied that the Principal Applicant was not inadmissible to Canada,
because of concerns about the veracity of his testimony. As the Applicants have
not been successful in challenging the reasonableness of that finding, it
precludes the Applicants being eligible for Convention refugee status, and I
cannot conclude that the Decision is unreasonable based on the Officer not
having analysed the claimed risk of persecution due to the Applicants’
ethnicity and religious beliefs.
C. Did the Officer fail to observe principles of natural justice and
procedural fairness by not providing the Principal Applicant with a fair
hearing and with adequate interpretation?
[23]
The Applicants did not argue this particular
ground of review at the hearing of this application; however, in their written
submissions, they argue that it is apparent from the GCMS notes that the
Principal Applicant did not understand the English language in which the
Officer conducted the interview and that the interpretation between English and
Dari was inadequate. The Principal Applicant states in his affidavit filed in
support of this application for judicial review that he had reservations about
the quality of interpretation and that the interpreter communicated with him in
Dari but also sometimes in Pashtu and Urdu when looking for words to translate
the Officer’s questions. He also states that, when he told the interpreter that
the Taliban, who are Sunni and Pashtun, persecuted the Applicants because they
are Hazara and Shia, the interpreter’s facial expression changed, and the
Principal Applicant thought the interpreter was insulted by this assertion. Although
this evidence was not before the Officer, it relates to a procedural fairness
issue, and I therefore consider it appropriate for the Court to take it into
account in considering the Applicants’ submissions on this issue.
[24]
In Singh v Canada (Minister of Citizenship
and Immigration), 2010 FC 1161 at paragraph 3, Justice Lemieux summarized
the principles enunciated in Mohammadian v Canada (Minister of Citizenship
and Immigration), 2001 FCA 191 [Mohammadian], governing the required
quality of interpretation:
A. The interpretation must be precise, continuous, competent, impartial
and contemporaneous.
B. No proof of actual prejudice is required as a condition of obtaining
relief.
C. The right is to adequate translation not perfect translation. The
fundamental value is linguistic understanding.
D. Waiver of the right results if an objection to the quality of the
translation is not raised by a claimant at the first opportunity in those cases
where it is reasonable to expect that a complaint be made.
E. It is a question of fact in each case whether it is reasonable to
expect that a complaint be made about the inadequacy of interpretation.
F.
If the interpreter is having difficulty speaking
an applicant’s language and being understood by him it is a matter which should
be raised at the earliest opportunity.
[25]
While the Applicants now assert that many errors
are apparent from the GCMS notes, they do not point to particular components of
the notes to identify such errors. The notes themselves identify certain
instances where there is an issue with understanding or translation of a
question. However, the notes demonstrate that the Officer was aware of the
issue in those isolated instances, and I do not find that they represent a
basis to conclude that the Applicants received translation services which
fell short of the Mohammadian requirements.
[26]
Moreover, the Principal Applicant expressly
confirmed to the Officer at the beginning of the interview that he understood
the interpreter. After the Officer provided instructions as to how the
interview would proceed, he again confirmed that he understood these
instructions and fully understood the interpreter. The Principal Applicant now
asserts that there were issues with the quality of the interpretation and
raises an additional concern impugning the objectivity of the interpreter.
However, the Principal Applicant did not raise these concerns during the
hearing. In his written submissions, he argues that he could not do so due to
language barriers and feeling overwhelmed by the interpreter’s change in body
language when he referred to the Taliban’s treatment of Hazara and Shia people.
In my view, if the Principal Applicant had such concerns during the interview,
it was reasonable for him to raise them at that time. As explained in Mohammadian,
the claimant is always in the best position to know whether the interpretation
is accurate and to make any concern with respect to accuracy known during the
course of the hearing, unless there are exceptional circumstances for not doing
so. The Applicants’ arguments do not support a conclusion that there were
exceptional circumstances surrounding this interview which would justify a departure
from this principle.
[27]
I therefore find no breach of procedural
fairness arising from the adequacy of interpretation services which would
justify interference with the Decision.
V.
Conclusion
[28]
As the Applicants’ arguments have not
demonstrated any reviewable error on the part of the Officer, this application
for judicial review must be dismissed. No question was proposed for
certification for appeal, and none is stated.
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