Docket: IMM-4815-16
Citation:
2017 FC 966
Ottawa, Ontario, October 30, 2017
PRESENT: The
Honourable Mr. Justice Boswell
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BETWEEN:
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ASMEHLASH
SELAMSSA
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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
[1]
The Applicant is a 53-year-old citizen of
Eritrea who, as a young man, served in the Ethiopian military under the Derg
regime, a military junta which ruled Ethiopia (including what is now Eritrea)
from 1974 to 1991. In 2009, the Applicant’s brother and the Calgary Catholic
Immigration Society sponsored his application for permanent residence status
under the Convention Refugee Abroad class and Humanitarian-Protected Persons
Abroad class. Ultimately, on June 15, 2016, the Applicant was interviewed in connection
with his permanent residence application in Kampala, Uganda, by an Immigration
Officer from the High Commission of Canada in Dar es Salaam, Tanzania. In a
letter dated June 29, 2016, the Officer refused the Applicant’s application
because the Officer found he was not a member of any of the prescribed refugee
classes. The Applicant has now applied under subsection 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c-27 [IRPA], for judicial
review of the Officer’s decision.
I.
The Officer’s Decision
[2]
In her letter of June 29, 2016, the Officer
noted that the Applicant had been interviewed with the assistance of an
interpreter fluent in English and in Tigrinya, and also that he had not
indicated any difficulty in understanding the translator or in having the
translator understand him. After quoting the definition of a Convention refugee
in section 96 of the IRPA, the Officer referenced section 98 which
excludes from this definition persons who have: (i) taken up residence in a
country outside the country of their nationality and have been recognized as
having the rights and obligations which are attached to the possession of
nationality of that country; (ii) committed a crime against peace, a war crime,
a crime against humanity, or a serious non-political crime outside the country
of refuge prior to their admission to that country as a refugee; or (iii) been
guilty of acts contrary to the purposes and principles of the United Nations.
[3]
The Officer also referenced sections 145 and
147, as well as paragraph 139(1)(e), of the Immigration and Refugee
Protection Regulations, SOR/2002-227, as amended, and concluded her letter
by informing the Applicant that:
After carefully assessing all factors
relative to your application, I am not satisfied that you are a member of any
of the classes prescribed. Based on the discrepancies between the written
information on file and the information you provided at the interview, I am not
satisfied you are credible, particularly in regard to your involvement with the
Derg regime. I gave you many opportunities to answer my concerns during the
interview and you failed to answer them. I am therefore not satisfied that you
meet the definition of a Convention refugee and that you are not excluded as
per A98. I further considered the country of asylum classes, but found that you
do not meet the requirements of this class either. In addition, I am not
satisfied that you are not inadmissible to Canada. Therefore, you do not meet
the requirements of this paragraph.
[4]
The Global Case Management System [GCMS] notes
form part of the Officer’s decision (see e.g.: Baker v Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 at paras 43-44, [1999]
SCJ No 39). The Officer noted in the GCMS notes that the Applicant had provided
contradictory information about his military service, in particular that: on
the Background Declaration in the Applicant’s written application, he stated
that he had served in the military from February 1971 to June 1983, that he was
a distinguished soldier from April 1977 to March 1978 at Asmara Phorto-35, and
that he was in active combat in Dekemehary, Quahay, Mimine, and Mereb; but on
an updated Background Declaration provided at the interview, he stated that he
had served as a private in the military from April 1982 to March 1983 in
Asmaraforto brigade 22, shalega 31, and was in active combat at Malmine in
March 1983. Also, during the interview, the Applicant stated that he had served
in the military for only three months, protecting villagers’ cattle from bandits,
and was shot at night by unknown assailants.
[5]
When the Officer inquired about these
discrepancies at the interview, the Applicant told the Officer he could not
have begun his service in 1971 since he would have been too young. Although the
Officer acknowledged this, she noted that the Applicant had provided no valid
documents from Eritrea proving his date of birth. The Applicant further claimed
that, due to his lack of education, he was unaware of the nature of the Derg.
The Officer did not find this credible given the mass executions carried out
throughout Ethiopia (including Eritrea) during the “Red
Terror” campaign in the 1970s. The Officer also did not find credible
that Eritrean authorities would have detained the Applicant in 1996, five years
after the fall of the regime, if he had only served in the military for three
months. Based on documentary evidence and reports about the Derg militia, the
Officer did not find it credible that the Applicant’s only duties would have
been protecting cattle. Finally, the Officer did not find the Applicant’s
explanation regarding the night he was shot while guarding cattle credible,
particularly when he had declared in his application that he was involved in
active combat.
[6]
The Officer ultimately concluded in the GCMS
notes that:
Based on information on file and info
provided at interview, I am not satisfied that PA worked only 3 months for the
Derg regime and I am not satisfied that his description of his limited
involvement with the regime is credible. Based on the information available on
file, I am satisfied that PA was detained by the Eritreans in 1996 and the
Ethiopians in 2013. Based on the information available on file, I am also
satisfied that PA was a member of the Derg regime and that he was detained for
his past involvement. However, I am not satisfied that Pa has answered my
question[sic] honestly during the interview and there are too many
discrepancies on file to assess the level of his involvement and participation
with the Derg regime…. Based on the discrepancies between written information
on file and information provided at interview, I am not satisfied that PA is
credible.
II.
Issues
A.
Amendment of Style of Cause
[7]
At the outset of the hearing of this matter, it
was determined that the Respondent had been incorrectly named as the Minister
of Immigration, Refugees and Citizenship Canada. According to the federal
Registry of Applied Titles, the applied title for the Department of Citizenship
and Immigration is Immigration, Refugees and Citizenship Canada. The correct
Respondent to this application for judicial review is the Minister of
Citizenship and Immigration by virtue of subsection 4(1) of the IRPA.
Accordingly, the style of cause will be amended, with immediate effect, to name
the Minister of Citizenship and Immigration as the Respondent in lieu of the
Minister of Immigration, Refugees and Citizenship Canada.
B.
The Officer’s Affidavit
[8]
The Respondent has filed an affidavit which
identifies the documentation before the Officer (G. Garant) at the time of the
interview and when she prepared the refusal letter. This affidavit also
identifies four immigration forms in the Applicant’s Record, attached as
exhibits A and C to the Applicant’s affidavit, which were not before Ms. Garant
when she interviewed the Applicant and issued her decision letter. According to
the Respondent, it is well-established that evidence not before an
administrative decision-maker is not admissible on judicial review except in
certain limited circumstances relating to general background information,
information attesting to the absence of evidence on a certain matter or issue,
or information relating to natural justice. The Respondent submits that none of
these exceptions apply in this case and these exhibits should therefore be
struck from the Applicant’s Record or, in the alternative, given no weight. On
this issue, I agree with the Respondent. Accordingly, the Court has assigned no
weight to the documentation in the Applicant’s Record which was not before the
Officer when she interviewed the Applicant and when she prepared the refusal
letter.
C.
Standard of Review
[9]
It is well-established that the decision of an
officer as to whether an applicant is a member of the Convention refugee abroad
class or the country of asylum class is a question of mixed fact and law
reviewable on the reasonableness standard (see, e.g.: Gebrewldi v Canada (Citizenship
& Immigration), 2017 FC 621 at para 14; Bakhtiari v Canada
(Citizenship and Immigration), 2013 FC 1229 at para 22, 235 A.C.W.S. (3d)
1067; Qarizada v Canada (Citizenship and Immigration), 2008 FC 1310 at
para 15, [2008] FCJ No 1666; Saifee v Canada (Citizenship and Immigration),
2010 FC 589 at para 25, [2010] FCJ No 693.
[10]
Under the reasonableness standard, the Court is
tasked with reviewing a decision for “the existence of
justification, transparency and intelligibility within the decision-making
process. But it is also concerned with whether the decision falls within a
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]. Those criteria are met 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 and Labrador
Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at
para 16, [2011] 3 S.C.R. 708.
[11]
The standard of review for an allegation of
procedural unfairness is correctness (Mission Institution v Khela, 2014
SCC 24 at para 79, [2014] 1 S.C.R. 502; Canada (Citizenship and Immigration) v
Khosa, 2009 SCC 12 at para 43, [2009] 1 S.C.R. 339). Whether an administrative
decision was fair is generally reviewable by a court. However, the analytical
framework is not so much one of correctness or reasonableness but, instead, one
of fairness. As noted by Jones & deVillars (Principles of Administrative
Law, 6th ed. (Toronto: Carswell, 2014) at 266):
The fairness of a proceeding is not measured
by the standards of “correctness” or “reasonableness”. It is measured by
whether the proceedings have met the level of fairness required by law.
Confusion has arisen because when the court considers whether a proceeding has
been procedurally fair, the court…decides whether the proceedings were
correctly held. There is no deference to the tribunal’s way of proceeding. It
was either fair or not.
[12]
Under the correctness standard of review, a
reviewing court shows no deference to the decision maker’s reasoning process and
the court will substitute its own view and provide the correct answer if it
disagrees with the decision maker’s determination (see: Dunsmuir at
para 50). Moreover, the Court must determine whether the process followed
in arriving at the decision under review achieved the level of fairness
required by the circumstances of the matter (see: Suresh v Canada (Minister
of Citizenship and Immigration), 2002 SCC 1 at para 115, [2002] 1 S.C.R. 3).
When applying a correctness standard of review, it is not only a question of
whether the decision under review is correct, but also a question of whether
the process followed in making the decision was fair (see: Hashi v Canada
(Citizenship and Immigration), 2014 FC 154 at para 14, 238 ACWS (3d)
199; and Makoundi v Canada (Attorney General), 2014 FC 1177 at para 35,
471 FTR 71).
[13]
The quality of the interpretation at an
immigration hearing or interview is a question of procedural fairness and,
hence, subject to a correctness standard of review (see, e.g.: Singh v
Canada (Citizenship and Immigration), 2007 FC 267 at para 16, 155 ACWS (3d)
922; Saravia v. Canada (Minister of Citizenship and Immigration), 2005
FC 1296 at para 3, 142 ACWS (3d) 1023); Siddiqui v Canada (Citizenship and
Immigration), 2015 FC 1028 at para 38, 258 ACWS (3d) 388; Licao v Canada
(Citizenship and Immigration), 2014 FC 89 at para 18, 237 ACWS (3d) 739).
D.
The Applicant’s Interview
[14]
The Applicant’s affidavit dated December 30,
2016, filed as part of his Application Record, states in relevant part that:
I was called for an interview on June 15,
2016 in Kampala, Uganda. There was a Tigrinya interpreter at the interview. …
I never understood the interpreter properly
and there was some misunderstanding. For example I remember the interpreter
asked me “what do you eat?”, I answered him our traditional food Injera.
However later after some explanation, I realized that he was asking me what I
was doing for a living.
[15]
Additionally, the jurat in the Applicant’s
affidavit states that:
As Asmelash Selamssa does not understand the
English language, this affidavit was, in my belief, interpreted to him/her, by ANTENEH
MENGESHA who first swore that he/she well understands the English and AMHARIC
languages and that he/she would well and truly interpret the contents of this
affidavit and that he/she would well and truly interpret the oath about to be
administered.
[16]
Ms. Garant states in her affidavit the
following:
As a matter
of general protocol and procedure, I make sure that a person being interviewed
- whether this is in person or over the telephone - understands the
interpreter. … If there are difficulties with the interpretation, this is noted
in the interview notes and the interview does not proceed any further with that
interpreter. If nothing is noted, it is because neither the person being
interviewed, nor the interpreter, expressed any difficulties with the
interpretation. During the interview on June 15, 2016, the Applicant did not
say that he did not understand the interpreter properly or that there was some
misunderstanding.
[17]
The GCMS notes entered on June 22, 2016, state
that Ms. Garant “verified that applicant and
interpreter understand each other.” The notes pertaining to the
Applicant’s interview make no mention of the misunderstanding between the
Applicant and the translator about Injera.
[18]
In addition, the certified tribunal record
contains an undated letter from the Applicant’s brother, Michael, which was
forwarded to the High Commission in Dar es Salaam on or about October 14, 2016.
This letter raises questions about the integrity of the interpretation at the
interview, stating in relevant part that:
The interpreter told him he got the Canada
permanent residence visa which is not true and my brother is telling me now
that his interpreter work [sic] for the Eritrean government YGDF
undercover also so I do not believe he interpreted to you exactly what my
brother he told him to clarify for you. The interpreter is [sic] not
Give [sic] the trues [sic] information to the immigration
officer.
Even the Eritrea and Ethiopian calendar 1983
it’s in European calendar (1991). We have different calendars. So the
interpreter he mixed up. I don’t think he explain the correct information. So
we can prove the interpreter knowingly gave false information to the officer.
[19]
The Officer’s letter to the Applicant refusing
his application did not contain the GCMS notes pertaining to the interview.
These notes were first disclosed to the Applicant as part of Ms. Garant’s
affidavit filed with the Respondent’s Memorandum of Argument on February 20,
2017. The certified tribunal record received by the Court on April 4, 2017,
contains additional GCMS notes pertaining to the Applicant’s application; it
does not contain any handwritten notes concerning the precise questions and
answers at the Applicant’s interview. Even if the Applicant did not, according
to Ms. Garant, indicate any difficulty in understanding the translator or in
having the translator understand him at the interview, concerns about the
translation at the interview were raised well before the Applicant’s receipt
and review of the GCMS notes relating to the interview.
[20]
I cannot be sure whether the interview in this
case was procedurally fair to the Applicant or whether the Applicant was
properly or adequately understood by the translator and the Officer. In this
case, the competency or adequacy of the translation at the interview is open to
question in view of the Applicant’s affidavit, sworn to in the English and
Amharic languages. The fact that this affidavit is not in the English and the
Tigrinya languages raises questions as to whether the Applicant and the
translator adequately understood each other at the interview and as to whether
the Applicant is more fluent in Amharic than Tigrinya. In the absence of any
transcript or audio recording of the interview, it is not possible to determine
whether the interpretation at the interview was adequate, precise or competent,
or whether any inadequacies or errors in the translation related to trifling or
immaterial matters. Moreover, in view of the letter from the Applicant’s
brother, there is also some question as to whether the translator was
impartial. The Officer’s decision to deny the Applicant’s application for
permanent residence is tainted by what may well have been faulty translation at
the interview. This application for judicial review will therefore be allowed.
III.
Conclusion
[21]
For the reasons stated above, the Applicant’s
application for judicial review is allowed.
[22]
Neither party raised a serious question of
general importance; so, no such question is certified.
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