Date: 20200327

Docket: IMM-5323-19

Citation: 2020 FC 426

Ottawa, Ontario, March 27, 2020

PRESENT:  Mr. Justice Gascon

JUDGMENT AND REASONS

I.  Overview

[1]  The Applicant, Ms. Bahlibi Asta Tsigehana, is a 78 year-old woman from Eritrea. She seeks judicial review of a July 18, 2019 decision [Decision] by the Refugee Appeal Division of the Immigration and Refugee Board [RAD] confirming the Refugee Protection Division [RPD]’s denial of her refugee claim. In the Decision, the RAD determined that Ms. Tsigehana was neither a convention refugee under section 96 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA], nor a person in need of protection under section 97, on the grounds that her testimony was not credible. 

[2]  Ms. Tsigehana’s application for judicial review rests on her allegation that the RAD erred in accepting the RPD’s decision despite serious issues regarding the accuracy of the interpretation and translation from Tigrinya to English at her RPD hearing. These interpretation errors, says Ms. Tsigehana, led to the negative credibility findings made by the RPD. She submits that these errors constitute a breach of natural justice and procedural fairness. Ms. Tsigehana further argues that the Decision is unreasonable as it failed to consider several pieces of evidence pointing in the opposite direction of the RAD’s conclusion, in relation to the issues impacted by the alleged interpretation errors. She asks this Court to set aside the Decision and to return the matter to the RAD, so that a differently constituted panel can reassess her request.

[3]  For the reasons that follow, and though I have some sympathy for Ms. Tsigehana’s situation, I will dismiss this application. Having considered the RAD’s findings, the evidence before the decision maker and the applicable law, I can find no basis for overturning the Decision. I am not persuaded that a breach of procedural fairness occurred in this case. Ms. Tsigehana had the opportunity to present her case and to make full submissions to the RAD on the alleged interpretation errors. Furthermore, she did not raise these issues as matters of procedural unfairness before the RPD or the RAD, and she cannot do it before this Court. I am also satisfied that the evidence reasonably supports the RAD’s adverse credibility findings and that the RAD did not overlook any evidence. Its reasons have the qualities that make the Decision reasonable in that they are based on an internally coherent and rational chain of analysis and that they are justified in relation to the facts and law that constrain the RAD. There are therefore no grounds to justify the Court’s intervention.

II.  Background

A.  The factual context

[4]  Ms. Tsigehana is a citizen of Eritrea born in 1942. She came to Canada in August 2017 with a valid visitor visa. She submitted an inland refugee claim in November 2017, claiming that the Eritrean authorities would persecute her on the ground of perceived political opinion. This perception arose from questioning by the Eritrean authorities towards the end of May 2017, who suspected Ms. Tsigehana of having helped facilitate the desertion and flight from Eritrea of three young female members of the Eritrean Defence Forces. At the time, the three women happened to be Ms. Tsigehana’s tenants.

[5]  The Eritrean authorities arrested Ms. Tsigehana and detained her for ten days without charges. She was able to secure her release from detention with the help of her nephew, who is an army officer in the Eritrean military. According to Ms. Tsigehana, after her release from detention, her nephew feared for both their lives and had her go into hiding at his home until he could secure an exit visa for her. He managed to allow her to flee to Kenya, where she was ultimately granted a visa to Canada to visit her granddaughter.

[6]  The refugee hearing before the RPD occurred in April 2018. Ms. Tsigehana’s testimony was facilitated with the aid of an interpreter, who joined the hearing by phone. The questioning of the RPD focused largely on two main issues of credibility: (i) Ms. Tsigehana’s relationship to her tenants, and (ii) the scope of her nephew’s influence and involvement in her release from detention and her flight from Eritrea.

[7]  During the hearing, Ms. Tsigehana’s granddaughter, the only other person in the room who could speak both English and Tigrinya, interrupted the hearing at least twice to bring some alleged interpretation errors to light during the questioning regarding the above-mentioned issues of credibility. With respect to the nephew’s involvement in Ms. Tsigehana’s release, one question had to be repeated five times before Ms. Tsigehana could properly give an answer. The RPD canvassed this with Ms. Tsigehana’s counsel, who had inquired whether the questions and answers had been correctly conveyed by the interpreter. Because the answers provided by Ms. Tsigehana were similar when the questions were repeated, the RPD found it doubtful that there was an issue with the quality of interpretation.

[8]  The determinative issue for rejecting Ms. Tsigehana’s refugee claim was credibility. Regarding her relationship with her tenants, the RPD found that Ms. Tsigehana was inconsistent with respect to the degree she required the rental income from her tenants for financial stability. The RPD further determined that it was unreasonable for Ms. Tsigehana not to have learned more about her tenants’ backgrounds in the two months they lived with her. Turning to her nephew, the RPD found that the nephew’s ability to secure release for his aunt, and arrange for an exit visa for her, indicated his broad influence with the Eritrean authorities; in this context, said the RPD, Ms. Tsigehana’s explanation as to why her nephew could not use this influence to assure the authorities that his aunt was apolitical was insufficient. It was also not credible, the RPD added, that Ms. Tsigehana had no contacts with her nephew since fleeing Eritrea. The RPD further determined that Ms. Tsigehana’s explanation regarding her nephew’s inability to resolve her problem was unreasonable.

[9]  The RPD concluded that Ms. Tsigehana was generally evasive in her answers, and that she attempted to tell her entire story at the beginning of the hearing rather than answer the specific questions posed to her during the interview. Having found that Ms. Tsigehana’s claims of persecution were not credible, the RPD also determined that the worst she would face if returned to Eritrea was a fine for “applying for diaspora status on return” and that this did not amount to a serious possibility of either persecution or personal risk of harm.

B.  The RAD’s Decision

[10]  In its Decision, the RAD ultimately agreed with the RPD on all the bases for its refusal of Ms. Tsigehana’s refugee protection in Canada. Further to its own review of the evidence, the RAD concluded that Ms. Tsigehana’s relationship with her tenants lacked credibility, notably because she “failed to respond to simple questions about how long she expected these women to stay and what arrangements she had for their rent payment”. With respect to her nephew’s involvement, the RAD found that much of Ms. Tsigehana’s testimony was “confusing”, in particular as to why she had to stay at her nephew’s home after her release from detention. In addition, the RAD determined that Ms. Tsigehana could not explain why her nephew was able to have her released from detention, while being unable to tell the authorities that she was apolitical and had no involvement in the situation relating to the three tenants’ flight from Eritrea. The RAD further agreed with the RPD that it was unlikely that Ms. Tsigehana would not stay in contact with her nephew. In the end, the RAD found all of Ms. Tsigehana’s testimony relating to her nephew’s involvement not credible.

[11]  Importantly, in the Decision, the RAD specifically referred to the issue of interpretation and to the alleged failure of Ms. Tsigehana to understand the questions asked at the RPD hearing. Further to its review of the complete transcript of the RPD hearing, the RAD could not identify any interpretation problems at the hearing and emphasized that Ms. Tsigehana was provided with full opportunity to answer the questions.

C.  The standard of review

[12]  The parties do not dispute that the RAD’s Decision itself is reviewable against the standard of reasonableness. That reasonableness is the appropriate standard has recently been reinforced by the Supreme Court of Canada in Canada (Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov]. In that judgment, the majority of the Court set out a revised framework for determining the standard of review with respect to the merits of administrative decisions, holding that they should presumptively be reviewed on the reasonableness standard unless either the legislative intent or the rule of law requires otherwise (Vavilov at paras 10, 17). I am satisfied that neither of these two exceptions apply in the present case, and that there is no basis for derogating from the presumption that reasonableness is the applicable standard of review for the Decision.

[13]  Regarding the actual content of the reasonableness standard, the Vavilov framework does not represent a marked departure from the Supreme Court’s previous approach, as set out in Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir] and its progeny, which was based on the “hallmarks of reasonableness”, namely justification, transparency and intelligibility (Vavilov at para 99). The reviewing court must consider “the decision actually made by the decision maker, including both the decision maker’s reasoning process and the outcome”, to determine whether the decision is “based on an internally coherent and rational chain of analysis” and is “justified in relation to the facts and law that constrain the decision maker” (Vavilov at paras 83, 85; Canada Post Corp. v Canadian Union of Postal Workers, 2019 SCC 67 [Canada Post] at paras 2, 31).

[14]  Turning to the issues of procedural fairness, the approach to be taken has not changed following Vavilov (Vavilov at para 23). It has typically been held that correctness is the applicable standard of review for determining whether a decision maker complies with the duty of procedural fairness and the principles of fundamental justice (Mission Institution v Khela, 2014 SCC 24 at para 79; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12 at para 43). However, the Federal Court of Appeal has recently affirmed that questions of procedural fairness are not truly decided according to any particular standard of review. Rather, it is a legal question to be answered by the reviewing court, and the court must be satisfied that the procedure was fair having regard to all of the circumstances (Lipskaia v Canada (Attorney General), 2019 FCA 267 at para 14; Canadian Airport Workers Union v International Association of Machinists and Aerospace Workers, 2019 FCA 263 at paras 24-25; Perez v Hull, 2019 FCA 238 at para 18; Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 [CPR] at para 54).

[15]  Therefore, the ultimate question raised when procedural fairness and alleged breaches of fundamental justice are the object of an application for judicial review is whether, taking into account the particular context and circumstances at issue, the process followed by the administrative decision maker was fair and offered the affected parties a right to be heard as well as a full and fair opportunity to know and respond to the case against them (CPR at para 56; Huang v Canada (Citizenship and Immigration), 2018 FC 940 at paras 51-54). No deference is owed to the decision maker on issues of procedural fairness.

III.  Analysis

A.  Errors of interpretation

[16]  Regarding the alleged mistake of fact of the RAD in relation to the errors of interpretation identified at the RPD hearing, Ms. Tsigehana relies heavily on the affidavit of Mr. Paulos Teckle dated September 26, 2019, who noted specific instances where translation errors allegedly occurred throughout the course of the hearing. Ms. Tsigehana insists that an audit of the quality of interpretation during the RPD hearing reveals several material errors in interpretation, throughout key portions of her testimony. These errors, says Ms. Tsigehana, led to the negative credibility inferences made by the RPD, which were later affirmed by the RAD. Ms. Tsigehana alleges that this resulted in a denial of natural justice, rendering the RPD’s decision procedurally unfair. And since the RAD’s Decision was based on a mistaken apprehension that the interpretation was without error, it was also procedurally unfair.

[17]  I am not convinced by Ms. Tsigehana’s arguments.

[18]  Relying on Mohammadian v Canada (Minister of Citizenship and Immigration), 2001 FCA 191 [Mohammadian], Ms. Tsigehana correctly submits that proceedings before the RPD and the RAD require a quality of interpretation that is “continuous, precise, competent, impartial and contemporaneous” (Mohammadian at para 4). She acknowledges that translations are not required to be perfect, and that any errors identified must be serious, material and non-trivial to achieve the threshold for a breach of procedural fairness (Siddiqui v Canada (Citizenship and Immigration), 2015 FC 1028 at paras 68, 72; Bidgoli v Canada (Citizenship and Immigration), 2015 FC 235 at para 12). She also rightly asserts that an applicant is not required to demonstrate that “the error underpinned a key finding before the RPD decision can be set aside” (Mah v Canada (Citizenship and Immigration), 2013 FC 853 at para 26). Indeed, with respect to the materiality of interpretation errors, it is sufficient if the alleged errors have an impact on the adverse credibility findings at the refugee hearing (Thsunza v Canada (Citizenship and Immigration), 2014 FC 1150 at para 41).

[19]  However, Ms. Tsigehana’s claims of procedural unfairness must fail on two grounds. First, Ms. Tsigehana omitted to properly raise this issue before the RPD or the RAD. Second, looking at the RAD’s Decision as a whole, I am not persuaded that the alleged errors of interpretation can be considered as material to the RAD’s negative credibility findings.

[20]  In this case, Ms. Tsigehana failed to raise an objection at the RPD hearing with respect to an alleged breach of procedural fairness, and she did not present the alleged interpretation errors as a procedural fairness issue before the RAD. In fact, before the RAD, Ms. Tsigehana instead mentioned her concerns with the interpretation as an additional explanation to substantiate the purported erroneous credibility findings made by the RPD regarding Ms. Tsigehana. I observe that Ms. Tsigehana did not submit the affidavit of Mr. Teckle before the RAD to highlight the specific errors of interpretation that allegedly took place during the RPD hearing.

[21]  It is well established that issues of procedural fairness, including questions relating to the quality of interpretation, must be raised with the RPD as soon as they come to light (Mohammadian at paras 13-19; Yassine v Canada (Minister of Employment & Immigration), [1994] FCJ No 949 at para 7). In other words, allegations of procedural unfairness cannot generally be raised for the first time on judicial review “if they could reasonably have been the subject of timely objection in the first-instance forum” (Hennessey v Canada, 2016 FCA 180 [Hennessey] at para 20). More specifically, unless there are exceptional circumstances for not doing so, applicants cannot raise an objection related to interpretation only where the ultimate decision is not in their favour, and they cannot choose to do nothing despite their concerns with the quality of the interpretation (Mohammadian at para 18). Such procedural fairness concerns must be brought up at the first opportunity, and when claimants fail to do so, they cannot later raise those concerns on judicial review.

[22]  The reason underlying this rule is that a first-instance decision maker, such as the RPD or the RAD in this case, ought to be afforded “a chance to address the matter before any harm is done, to try to repair any harm, or to explain itself” (Hennessey at para 21). A party cannot withhold a disqualifying procedural ground in reserve, stay still in the weeds and later brandish it on judicial review when it happens to be unsatisfied with the first-instance decision (Hennessey at para 21). In this case, Ms. Tsigehana has not brought forward any exceptional reasons for not raising her claims of procedural unfairness relating to the interpretation errors before the RAD or the RPD. This failure to raise the issue before these two administrative decision makers is a sufficient ground to dismiss Ms. Tsigehana’s claim of procedural unfairness in this application.

[23]  Furthermore, even if I were to accept that the alleged interpretation errors singled out by Ms. Tsigehana can be considered on judicial review, I am not convinced that these errors were sufficiently crucial to vitiate the entire Decision and the RAD’s negative credibility findings. When looking at the Decision as a whole, I do not find that the alleged interpretation errors identified by Ms. Tsigehana were material to the RAD’s ultimate findings.

[24]  Ms. Tsigehana claims that, where the RPD and RAD determined that she was evasive at the hearing, this was attributable to either the question asked or the answer provided having been misinterpreted. I disagree. Evasiveness was noted as a central factor in the RPD’s and the RAD’s findings that Ms. Tsigehana did not have concerns about her tenants’ backgrounds or their ability to pay rent. This was a recurring concern throughout Ms. Tsigehana’s testimony and there were multiple instances where questions asked by the RPD about Ms. Tsigehana’s story, her tenants and her nephew’s involvement were vaguely answered by Ms. Tsigehana. Having reviewed the record and the transcriptions, I am not persuaded that Ms. Tsigehana’s testimony was solely marred by miscommunication due to the poor quality of the translation.

[25]  The RAD’s negative credibility findings were based on numerous elements that went beyond the alleged interpretation errors. Regarding the tenants, the RAD confirmed the RPD’s findings on the following central elements: the inconsistency of Ms. Tsigehana’s testimony with respect to the degree she required the rental income from her tenants for financial stability, and the lack of Ms. Tsigehana’s knowledge regarding her tenants’ backgrounds in the two months she lived and interacted with them. Turning to her nephew, central areas of concerns related to the absence of contacts between Ms. Tsigehana and her nephew since fleeing Eritrea, and Ms. Tsigehana’s explanation regarding her nephew’s inability to make her problem go away. I am satisfied that the alleged interpretation errors identified by Ms. Tsigehana do not materially alter these factual findings made by the RAD.

[26]  I also agree with the Minister that several of the alleged interpretation errors (such as those relating to the imprisonment of the tenants, the duration of their rental or their identity) were not material to the RAD’s overall adverse credibility finding. On the issue of the “contract”, for example, clarification was sought during the RPD hearing, and an appropriate answer was indeed eventually conveyed by Ms. Tsigehana. Another concern with interpretation was whether Ms. Tsigehana was referring to vacationers or soldiers when she referred to her tenants and, upon seeking clarification, the RPD was satisfied that Ms. Tsigehana had known that the tenants were members of the military.

[27]  Turning more specifically to her nephew, Ms. Tsigehana complains that, when a question must be asked five times before it is properly communicated, such question cannot be characterized as continuous, precise or competent. I do not share Ms. Tsigehana’s reading of the RPD transcript on this specific point. On the contrary, I agree with the RAD that repeating the question several times allowed Ms. Tsigehana a fair opportunity to respond and to clarify her answer on the issue addressed by the question.

[28]  I further observe that the alleged interpretation errors were in fact brought by Ms. Tsigehana to the attention of the RPD and RAD, not as a procedural fairness issue but rather as errors undermining the negative credibility findings and rendering the Decision unreasonable. Indeed, both the RPD and the RAD dealt with these allegations, respectively at the hearing and in the Decision. The RAD specifically referred to the alleged errors in its Decision and concluded, after looking at the entirety of the transcript of the RPD hearing, that it was satisfied that no interpretation issues vitiated the RPD’s findings or were material enough to modify the adverse credibility findings.

[29]  In this case, Ms. Tsigehana did not bring forward any new evidence before the RAD dealing with the alleged errors of interpretation. In these circumstances, I do not find that the RAD departed from the interpretation standard recognized in R v Tran, [1994] 2 S.C.R. 951 [Tran], which requires continuity, precision, impartiality, competency and contemporaneousness in the interpretation. Interpretations and translations do not need to be perfect and, in the case of Ms. Tsigehana, I am satisfied that the interpretation met the Tran standard.

B.  Reasonableness

[30]  Ms. Tsigehana further claims that, even setting aside the alleged errors of interpretation, the RAD’s Decision is unreasonable to the extent that the RAD ignored errors highlighted in her appeal and failed to engage with her strongest arguments. She argues that it is a reviewable error to ignore, or fail to comment on, evidence pointing in the opposite direction of a decision maker’s conclusions. Relying on Cepeda-Gutierrez v Canada (Minister of Citizenship & Immigration), [1998] FCJ No 1425 (QL), 157 FTR 35 [Cepeda-Gutierrez], she notes that the more important the evidence that escapes comment, the more willing the Court should be to overturn a decision on this basis. Ms. Tsigehana also submits that there were several instances where she provided a reasonable explanation to the questions posed to her, but that improper interpretation led these reasonable answers to be misunderstood by the RPD.

[31]  Once again, I am not persuaded by Ms. Tsigehana’s arguments.

[32]  The RAD found that the RPD did not err in its credibility assessment and, in fact, it addressed Ms. Tsigehana’s argument that the RPD had failed to consider evidence more favourable to her. Upon its own detailed review of the evidence, the RAD reached the same conclusion as the RPD. It is well recognized that decision makers are presumed to have weighed and considered all the evidence presented to them unless the contrary is shown (Kanagendren v Canada (Citizenship and Immigration), 2015 FCA 86 at para 36; Florea v Canada (Minister of Employment and Immigration), [1993] FCJ No 598 (FCA) at para 1). A failure to mention a particular piece of evidence does not mean that it was ignored (Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board), 2011 SCC 62 at para 16), and decision makers are not required to refer to each and every piece of evidence supporting their conclusions.

[33]  It is only when an administrative decision maker is silent on evidence squarely contradicting its findings of fact that the Court may intervene and infer that the decision maker overlooked the contradictory evidence when making its decision (Ozdemir v Canada (Minister of Citizenship and Immigration), 2001 FCA 331 at paras 9-10; Cepeda-Gutierrez at para 17). The failure to consider specific evidence must be viewed in context and may be sufficient to a decision being overturned, but only when the non-mentioned evidence is critical and contradicts the decision maker’s conclusion, and where the reviewing court determines that its omission means that the tribunal disregarded the material before it. This is not the case here, and Ms. Tsigehana has not pointed the Court to any evidence that would fit this exceptional situation.

[34]  In the end, the arguments put forward by Ms. Tsigehana express her disagreement with the RAD’s assessment of the evidence. Ms. Tsigehana essentially asks the Court to reconsider the record, to reweigh the evidence she has presented and to make its own findings of fact and its own determinations of credibility. However, in conducting a reasonableness review of factual findings, it is not the Court’s role to do so or to reassess the relative importance given by a decision maker to any relevant factor or piece of evidence. Factual findings, assessing credibility, and drawing reasonable inferences all lie at the heart of the RAD’s and the RPD’s specific expertise and knowledge under the IRPA. They deserve deference and are entitled to judicial restraint by the reviewing court. In other words, Ms. Tsigehana has not persuaded me that the RAD’s conclusions were not based on the evidence that was actually before it (Vavilov at para 126), or that the RAD has fundamentally misapprehended or failed to account for the evidence before it.

[35]  On the contrary, the RAD provided careful, comprehensive and well-considered reasons explaining why Ms. Tsigehana was not found credible. The test for reasonableness dictates that the reviewing court must start from the decision and the decision maker’s reasons, while recognizing that the administrative decision maker has the primary responsibility to make the factual determinations. A judicial review is not a “line-by-line treasure hunt for error” and a reviewing court must instead approach the reasons and outcome of a tribunal’s decision as an “organic whole” (Vavilov at para 102; Communications, Energy and Paperworkers Union of Canada, Local 30 v Irving Pulp & Paper, Ltd., 2013 SCC 34 at para 54; Agraira v Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 at para 53). When the RAD Decision is read as a whole, and not through the piecemeal approach put forward by Ms. Tsigehana, I am satisfied that the RAD engaged in a thorough and detailed assessment of the evidence, and that its negative credibility findings are reasonable.

[36]  Further to Vavilov, the reasons given by a decision maker are the starting point of the analysis. They are the principal tool allowing the administrative decision makers “to show affected parties that their arguments have been considered and demonstrate that the decision was made in a fair and lawful manner” (Vavilov at para 79). Here, I am satisfied that the Decision explains the conclusions reached by the RAD in a transparent and intelligible manner (Vavilov at paras 81, 136; Canada Post at paras 28-29; Dunsmuir at para 48), and the reasons allow me to understand the basis on which the RAD concluded that Ms. Tsigehana’s story was not credible. The standard of reasonableness requires the reviewing court to pay “[r]espectful attention to a decision maker’s demonstrated expertise” and specialized knowledge, as reflected in their reasons (Vavilov at para 93). Of course, a reviewing court should ensure that the decision under review is justified in relation to the relevant facts, but deference to decision makers includes more specifically deferring to their findings of facts and assessment of the evidence. A reasonableness review is an approach meant to ensure that the reviewing court only intervenes in administrative matters “where it is truly necessary to do so in order to safeguard the legality, rationality and fairness of the administrative process” (Vavilov at para 13). It is anchored in the principle of judicial restraint and in a respect for the distinct role and specialized knowledge of administrative decision makers (Vavilov at paras 13, 75, 93).

[37]  Ms. Tsigehana’s arguments are simply a disagreement with the way the RAD considered the facts and weighed the evidence, and this is not enough to justify the Court’s intervention.

IV.  Conclusion

[38]  For the above stated reasons, Ms. Tsigehana’s application for judicial review is dismissed. On a reasonableness standard, it is sufficient that the reasons detailed in the RAD’s Decision demonstrate that the conclusion is based on an internally coherent and rational chain of analysis and that it is justified in relation to the facts and law that constrain the decision maker. This is the case here. Furthermore, in all respects, the RAD met the procedural fairness requirements in dealing with Ms. Tsigehana’s application and I am not persuaded that the alleged errors in interpretation amounted to a breach of procedural fairness requiring the Court’s intervention.

[39]  The parties have not proposed a question of general importance for me to certify. I agree that there is none in this case.

JUDGMENT in IMM-5323-19

THIS COURT’S JUDGMENT is that:

1. The application for judicial review is dismissed, without costs;

2. No serious question of general importance is certified.

"Denis Gascon"

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES:

SOLICITORS OF RECORD: