Date: 20180411

Docket: IMM-3108-17

Citation: 2018 FC 388

[ENGLISH TRANSLATION]

Ottawa, Ontario, April 11, 2018

PRESENT: The Honourable Mr. Justice LeBlanc

JUDGMENT AND REASONS

I.  Introduction

[1]  The applicant seeks a judicial review of a decision by the Immigration and Refugee Board, Refugee Appeal Division [RAD], dated June 21, 2017, dismissing his appeal of a decision by the Refugee Protection Division [RPD], that found that he is not a Convention refugee or a person in need of protection within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act, SC 2001, c. 27 [the Act].

[2]  The applicant is a citizen of the Republic of Chad. He arrived in Canada on September 1, 2015, and claimed refugee protection a few months later, at the end of January 2016. He says that he is afraid of the authorities of his country because, on March 9, 2015, when he was a student at the University of N’Djamena and a member-advisor with the student union, he participated in a student demonstration to denounce the government’s non-payment of scholarships. In particular, he fears being arrested by the police, as were many students who participated in that demonstration who were also brutally repressed by the authorities. That is the reason that he allegedly sought refuge in another city just a few days after the demonstration and why he reportedly left Chad for Canada on September 1, 2015.

[3]  The RPD did not believe his story. In particular, it did not believe that he held an administrator’s role with the student union or even that he had participated in the demonstration on March 9, 2015, because he could not provide details about the role that he allegedly played with that union, or identify the primary purpose of that demonstration, which, in the RPD’s opinion, was not related to the problem of non-payment of scholarships, but rather to the government’s decision to make it mandatory for motorcyclists to wear helmets or, in the alternative, to correctly identify the arrears period for the non-payment of scholarships. According to the documentary evidence, the demonstration regarding the problem of non-payment of scholarships took place in August 2015, it specified.

[4]  The RAD did not want to intervene. First, it rejected the applicant’s argument that he did not benefit, procedurally, from a fair hearing before the RPD because of the poor quality of the interpretation. It then decided that the RPD had not erred in finding that the applicant’s testimony was devoid of credibility regarding important elements of his refugee claim. Finally, the RAD found there was no reasonable apprehension of bias raised by the fact that the RPD member who considered his refugee claim had also heard his half-brother’s claim.

[5]  First, the RAD considered the applicant’s application to introduce new evidence on appeal. It allowed this application in part. In particular, it accepted the filing of a document issued by Chad’s National Security Agency, dated April 4, 2016 [the Circular Note], requesting his arrest, and the filing of letters from an uncle and a brother of the applicant, dated April 10 and 19, 2017, suggesting that the applicant is still wanted by the police. In his letter, the uncle alleges that he was questioned by the Chad secret police a few times about the applicant’s whereabouts. For its part, the brother’s letter refers to what the uncle allegedly reported to him on this subject. 

[6]  The RAD indeed refused the filing of a card from the National Union of Chadian Students issued in the applicant’s name for the 2014–2015 academic year, a letter from the president of the Communauté Tchadienne de l’Ontario, dated April 22, 2017, and a letter from the president of the Conseil national de redressement du Chad, dated April 11, 2017, on the grounds that this new evidence, in the case of the two letters, did not add anything to what was already in evidence or else, in the case of the student card, did not involve a fact that occurred after the refugee claim was dismissed.

[7]  The RAD also decided to hold a hearing. In a notice dated May 2, 2017, it informed the applicant that the hearing would bear on how the Circular Note had been obtained, its authenticity, the reliability of the information in it and its probative value with regard to the documentary evidence. This notice also stated that the hearing would bear on any other issue raised by the applicant’s testimony at the hearing. The RAD did not assign any weight to this new evidence, finding that it was a false document. As for the letters from the applicant’s uncle and brother, they seemed insufficient to overcome the credibility issues identified by the RPD and the repercussions tied to filing a false document.

[8]  The applicant submits that the RAD erred in three ways: first, by not allowing all of the new evidence to be filed; then, by rejecting the argument based on the inadequate interpretation before the RPD; and finally, by failing to consider the applicant’s testimony at the hearing held before it on the subjects discussed by it, in particular with regard to the primary purpose of the demonstration on March 9, 2015.

II.  Issue and standard of review

[9]  The issue here is whether the RAD made a reviewable error within the meaning of subsection 18.1(4) of the Federal Courts Act, RSC 1985, c. F-7:

1. By not allowing all the new evidence to be filed;

2. By rejecting the argument based on the inadequate interpretation of the applicant’s testimony before the RPD; and

3. By failing to consider the applicant’s testimony at the hearing held before it in response to the questions about the purpose of the demonstration on March 9, 2015.

[10]  It is not disputed that the questions regarding the admissibility of the new evidence and the merits of the RAD’s decision with respect to the RPD’s findings regarding the applicant’s credibility are subject to the reasonableness standard of review (Canada (Citizenship and Immigration) v Singh, 2016  FCA  96, at para 23 [Singh]; Canada (Citizenship and Immigration) v Huruglica, 2016  FCA  93 at para 35 [Huruglica]; Paye v Canada (Citizenship and Immigration), 2017 FC 685 at para 3; Nazari v Canada (Citizenship and Immigration), 2017 FC 561 at para 12; Gu v Canada (Citizenship and Immigration), 2017 FC 543 at para 20; Singh v Canada (Citizenship and Immigration), 2017 FC 719 at para 9). A decision that is contested on the merits will be reasonable if the underlying findings of fact, of law, or of mixed fact and law are within the range of “possible, acceptable outcomes which are defensible in respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at para 47, [2008] 1 S.C.R. 190 [Dunsmuir]). That is a differential standard.

[11]  In relation to the issue regarding the quality of the interpretation, which involves the rules of procedural fairness, it is not disputed that the correctness standard applies (Yousif v Canada (Citizenship and Immigration), 2013 FC 753 at para 17 [Yousif]; Siddiqui v Canada (Citizenship and Immigration), 2015 FC 1028 at para 38 [Siddiqui]). This means that is if the administrative decision-maker erred, the Court will intervene without having to show deference to that decision-maker (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 72 [2009] 1 S.C.R. 339).

III.  Analysis

A.  The new evidence

[12]  The applicant has not persuaded me that an intervention is warranted.

[13]  According to subsection 110(4) of the Act, the applicant may, before the RAD, present only evidence:

1. that arose after the rejection of their refugee claim;

2. that was not reasonably available; or

3. that was reasonably available but that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection

(See also: Singh, at para 34)

[14]  In Singh, the Federal Court of Appeal held that one should not lose sight of the fact that subsection 110(4) of the Act “departs from the general principle according to which the RAD proceeds without a hearing, on the basis of the RPD’s record (s. 110(3)) and must for that reason be narrowly interpreted.” (Singh at para 35). It also held that for the purposes of this provision, the implicit criteria identified in Raza v Canada (Minister of Citizenship and Immigration), 2007 FCA 385 [Raza], applied (Singh at para 49). According to these criteria, to be admissible, the new evidence must be credible, relevant, new, and material (Singh at para 38).  

[15]  The Federal Court of Appeal indeed rejected the point of view that a narrow interpretation of subsection 110(4) would limit the refugee claimant’s ability to access a full fact-based appeal, which, according to this point of view, would go against the wishes expressed by a former Minister of Citizenship and Immigration in a statement made in the House in March 2012 (Singh at paras 52–53). 

[16]  The applicant submits that the RAD erred in refusing the filing of his student card on the ground that it failed to consider that this card had been lost, then found. There is in fact no indication that the RAD considered this argument that tends to explain the late filing of this document. However, I find that this error is not determinative since the RAD’s findings regarding the applicant’s credibility appropriately gives more consideration to the contradictions between the applicant’s allegations and the documentary evidence about the purposes of the demonstration on March 9, 2015, and the presentation of the Circular Note that the RAD ultimately found to be false, than to the question of whether or not the applicant was involved with the student union.

[17]  With respect to the letters from the president of the Communauté Tchadienne de l’Ontario and the president of the Conseil national de redressement du Chad, the applicant submits that the RAD erred in not recognizing any of their newness when they refer to the fact that he is of Zakhawa ethnicity, whose members are persecuted, threatened, and imprisoned without judgment by the authorities when they dare to contest the government in power. He essentially argues that the RAD’s reasons on this point are not supported. This argument must fail.  

[18]  As the Supreme Court noted in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708 [Newfoundland Nurses], a decision-maker’s reasons need not refer to all the arguments, statutory provisions, jurisprudence or other details that the reviewing judge would have preferred. The reasons will satisfy the criteria set out in Dunsmuir “if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes” (Newfoundland Nurses at para 16). It also notes that the reasons do not have to be perfect or comprehensive, instructing the reviewing Court that “the result is to be looked at in the context of the evidence, the parties’ submissions and the process.” (Newfoundland Nurses at para 18).

[19]  In my opinion, the grounds relied on by the RAD to refuse the filing of these two letters are, based on these teachings, sufficient. They are sufficient to understand the basis of the RAD’s decision on this point. It is appropriate in fact to ask why this evidence could not have been filed before the refugee claim was rejected and how it would resolve the credibility issues identified by the RAD. The applicant did not provide any explanation in his memorandum.

[20]  In sum, if there was no demonstration on March 9, 2015, and the police were not looking for him, as the RAD believed and as the RPD believed before the RAD, the fact that the applicant was a member of Zakhawa ethnicity would change nothing in the end with respect to the merits of his refugee claim. In other words, it is difficult for me to imagine, in this context, that this application “probably would have succeeded” if this fact had been considered by the RAD (Raza at para 13; Singh at para 38).

B.  The interpretation at the hearing before the RPD

[21]  The applicant argues that the interpreter who was on duty during the hearing before the RPD had difficulty understanding his answers to the point of admitting that on occasion he did not understand what he was saying. He argues that these problems were apparent throughout the hearing and says that he gave several examples of this to the RAD. He points out that the situation was exacerbated by the fact that the interpreter participated in the hearing by video-conference. On several occasions, he says, the questions and answers had to be repeated, which made communication difficult and exasperating.

[22]  It is well-established that interpretation, when it is required by a refugee claimant, must be “continuous, precise, competent, impartial and contemporaneous”. However, it does not have to be perfect (Singh v Canada (Citizenship and Immigration), 2010 FC 1161 at para 3). It is also well-established that to prove that an inadequate interpretation resulted in a breach of procedural fairness, the refugee claimant does not require proof of prejudice. However, for the Court to intervene, he must be able to demonstrate that the interpretation problem was material to the RPD’s decision (Yousif at para 45). The problem must therefore be serious and grave and non-trivial (Siddiqui at para 72) and must affect “a central aspect of the RPD’s conclusions” (Thsunza v Canada (Citizenship and Immigration), 2014 FC 1150 at para 41).

[23]  Yet, this was not demonstrated. First, as the respondent points out, the absence of an affidavit from the applicant that corroborates the interpretation problems that allegedly influenced the RPD’s decision does not help his case. In Muntean v Canada (Minister of Citizenship and Immigration), [1995] FCJ No 1449, 103 FTR 12, the Court reiterated the importance for an applicant in an immigration file to himself obtain an affidavit in support of his judicial review:

[11]  The affidavit supporting the application for judicial review is one of the primary sources of information in immigration matters. It is from this material that the Court is given its first insight into the applicant's perception of the decision-making process to which he or she has been subjected. Accordingly, it is critical that the affidavit be sworn by the person who has personal knowledge of the decision-making process; usually, this is the applicant him or herself

[24]  Although the absence of such an affidavit is not fatal in all circumstances, it is in this case with respect at the very least to the argument based on the deficiencies of the interpretation because the Court as a result finds itself deprived of the evidence required to determine whether the alleged deficiencies could be material to the RPD’s decision, i.e. affect a central aspect.

[25]  In any event, I do not see anything in the RAD’s treatment of this argument that would justify the intervention of the Court. The RAD examined this argument with care. It noted the specific problems that the applicant brought to its attention; properly summarized the principles of law that apply on the subject, and listened to the recording of the hearing before the RPD. It conceded that there were some interpretation problems, often tied to the tone and volume of the applicant’s voice, but could not conclude that it resulted in a breach of the rules of procedural fairness, finding that the difficulties expressed by the interpreter rather tend to demonstrate his genuine concern for providing an accurate interpretation.

[26]  Recognizing that the interpretation was not perfect, it pointed out, correctly, as we saw, that this is not the standard required by the jurisprudence. It also pointed out, again correctly, that the objections regarding the quality of the interpretation must be submitted at the first opportunity. It noted on this point that neither the applicant nor his counsel intervened at the hearing to indicate their dissatisfaction with respect to the quality of the interpretation, reiterating that it is the interpreter himself who, on occasion, raised some concerns. I cannot find any error by the RAD on these two points.

[27]  The applicant contends in his memorandum that the RPD should have, of its own initiative, raised and resolved the interpretation problem from the outset and that, accordingly, he cannot be blamed for not having shared his concerns at the first opportunity. In support of this claim, he refers to this Court’s judgment in Bao Guo Chen v Canada (Minister of Citizenship and Immigration), docket IMM-951-00. In that case, the hearing transcript “clearly reveals that, at the beginning of the hearing, there was a serious problem in the communications between the applicant and the interpreter” (Bao Guo Chen at para 12) [emphasis added]. I simply do not have that evidence before me.

[28]  In summary, despite the occasional difficulties encountered by the interpreter, I cannot find anything in the record to support a finding that the applicant was not able to understand the questions that he was asked and make himself adequately understood by answering and that he was as a result deprived of the procedural protections that he was indeed entitled to receive.

[29]  Accordingly, this argument is dismissed.

C.  The applicant’s testimony before the RAD

[30]  As stated earlier, the applicant submits that the RAD erred in failing to take his testimony into consideration, particularly in connection with the purpose of the demonstration on March 9, 2015, a subject that the RAD discussed even though it was not listed in the notice issued in anticipation of the hearing. Therefore, even if this evidence was outside the purview, the RAD, if I properly understand the applicant’s argument, could not ignore it because it requested it.

[31]  According to the applicant, this evidence shows that at the time of the demonstration on March 9, 2015, Chad was experiencing a period of intense instability: the professors were on strike and the students were demonstrating against a number of government measures, including the non-payment of their scholarships. It is very clear, according to him, that one purpose of these demonstrations was the arrears of the students’ scholarship, as he had indeed indicated to the RPD, he specifies.

[32]  The first problem with this argument is the fact that the Court does not have before it the useful part of the hearing transcript before the RAD, i.e. that part where this testimony was allegedly made. It also does not have the applicant’s affidavit recounting this part of the hearing before the RAD. The Court must fall back on the additional written submissions filed by the applicant’s counsel in the days that followed this hearing. It does not have the benefit of what was actually said and what occurred before the RAD. Once again, in a case such as this, it appears to me that, at the very least, an affidavit from the applicant was essential. Considering that it is up to him to persuade me that the RAD erred on this point, the absence of any evidence to support this point of view appears fatal to me.

[33]  In any event, I note that the RAD, at paragraph 71 of its decision, states that it considered the applicant’s testimony. It is presumed to have reviewed all the evidence before it and it was not bound, in its decision, to refer to each piece of evidence (Kaisar v Canada (Minister of Citizenship and Immigration), 2017 FC 789 at para 23; Kanagendre v Canada (Minister of Citizenship and Immigration), 2015 CFA 86 at para 36; Newfoundland Nurses at para 16). The absence of any evidence on this aspect of the hearing held before the RAD does not rebut this presumption.

[34]  Moreover, I note from the additional written submissions filed with the RAD by the applicant’s counsel that the RAD noted discrepancies between the applicant’s testimony before the RPD and the testimony before it on the issue of the theme of the demonstration on March 9, 2015. I infer from this that it expressed concern about that, as evidenced by the applicant’s counsel’s invitation to the RAD to give him the benefit of the doubt based, primarily, on the interpretation problems encountered before the RPD. I already concluded, as the RAD did before me, that these problems did not prevent the applicant from adequately understanding the questions that he was asked and to make himself adequately understood. In these circumstances, I as well would have hesitated to assign it much weight, assuming that this testimonial evidence connecting the demonstration of March 9 to the theme of non-payment of student scholarships [the additional testimonial Evidence] was indeed submitted to the RAD.

[35]  I would add that the RAD had before it substantial evidence, in particular from the applicant himself and from the most recent National Documentation Package— the one dated March 31, 2017 (the hearing before the RAD took place on May 2 and 16, 2017)—, indicating, contrary to the applicant’s claims, that the Chadian students had demonstrated, in March 2015, against mandatory helmets and against the scholarship problems in August of that same year. The applicant therefore faced, before the RAD, this [translation] “glaring contradiction” between his testimony before the RPD and the documentary evidence. Again, assuming that there was indeed additional testimonial Evidence, the RAD was entitled to choose the version that seemed the most plausible in light of all of the evidence and the circumstances. It was not bound to prefer the applicant’s version, as revealed by his testimony before the RAD according to his counsel (Galamb v Canada (Minister of Citizenship and Immigration), 2016 FC 1230 at para 47).

[36]  I note on this point that the RAD’s finding to the effect that the applicant, in submitting the circular Note, had filed a false document, greatly influenced its findings regarding the applicant’s credibility. Yet, this finding is not challenged by the applicant in this case, which appears to me to considerably weaken his position.

[37]  In summary, it is my opinion that, considered as a whole, the RAD’s findings regarding the credibility of the applicant’s story, even when considering the additional written submissions that the applicant’s counsel submitted to the RAD, are within the possible, acceptable, outcomes in respect of the facts and the law (Dunsmuir at para 47). I therefore see no reason to intervene on this issue.

[38]  The applicant’s application for judicial review will accordingly be dismissed.

[39]  The parties consider that, in this case, there is no question to certify for the Federal Court of Appeal. I agree.

JUDGMENT

THE COURT ORDERS AND ADJUDGES that:

1. The application for judicial review is dismissed;

2. No question is certified.

“René LeBlanc”

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: