Date: 20050221
Docket: IMM-3019-04
Citation: 2005 FC 271
BETWEEN:
JOSE JULIAN RODRIGUEZ QUIROA
MIRIAM DEROSARIO PORTILLO FAJARDO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
PHELAN J.
BACKGROUND
[1] The Applicants, a common law couple from Guatemala, were denied Convention refugee status or person in need of protection status by the Refugee Protection Division of the Immigration and Refugee Board (RPD). The RPD found several issues which discredited the Applicants' testimony and the trustworthiness of certain documents.
[2] The Applicants had based their application on the grounds that because the female Applicant had the same name as the President - "Portillo" - and came from Zacapa, the President's home town, they had been targeted for persecution by various forces, all of whom are political opponents of the President.
[3] Aside from the name confusion - the President is Portillo Cabrera/ the Applicant is Portillo Fajardo - the female Applicant says that her father is an opponent of the current administration and has been subjected to assaults and threats for this reason.
[4] The RPD reviewed the testimony of various attacks and threats, noted the discrepancies, and the contradictory evidence. The RPD found the claim not to be plausible or credible. The male Applicant's claim was tied to that of the female Applicant.
[5] The Applicants raise two issues:
- 1 -. Did the RPD err in its assessment or determination of the Applicants' credibility?
- 2 - Did the alleged errors in translation, and/or the interruptions by the IRB member, cause denial of a fair hearing?
ANALYSIS
[6] It is well recognized that factual findings will only be set aside if they are patently unreasonable or made in a perverse or capricious manner or without regard for the material as per section 18.1(4)(d) of the Federal Court Act.
[7] The RPD was alive to the issue of name confusion; it was aware that the female Applicant came from the same city as President Portillo Cabrera. It was also sensitive to the father's political involvement (see page 1 of the RPD's Reasons). The RPD also noted that the rest of the female Applicant's family continued to reside in Guatemala.
[8] While the RPD's review of the police report and other documents, on which it relied to show some of the inconsistencies in the Applicants' evidence, are said to contain minor errors, those errors (if any), neither individually nor cumulatively, undermined the RPD's overall assessment that there was insufficient evidence of personalized risk.
[9] The Applicants say that there were errors in translation that effected the IRB's appreciation of the facts. The Respondent says that if that were the case, the Applicants have waived their rights by not objecting to the translation at the time of the hearing.
[10] With respect, it cannot be a hard and fast rule that objections must be made at the time of the translation. If the party knew enough English or French to be able to discern errors in translation, then immediate objections may be called for - although it raises the issue of whether translation was required in the first place. However, assuming that translation is provided because a party does not have that linguistic ability, it would render the right to translation hollow and impractical if one had to object to any translation errors at the time of the translation.
[11] The Applicants have provided a copy of the transcript as they say it should have been translated. Having reviewed the "corrected" transcript, I do not see any basis for concluding that the Applicants were denied a fair hearing on that basis.
[12] The Applicants say that they were denied a fair hearing because the member took over the questioning of the witnesses and, in effect, "entered into the fray".
[13] Neither RPD members nor judges are required to sit in monk-like silence throughout a proceeding. It is more than legitimate for a member to ask questions to clarify testimony or to address issues which are relevant to the RPD's determination. There is a procedure for this and a tone and demeanor required to ensure that the member is not seen to have reached a conclusion prematurely.
[14] Having reviewed the transcript, it is certain that the member asked numerous questions but not in any discernable aggressive manner. The questions appear to be directed at obtaining answers to relevant issues but not in any manner attacking credibility.
[15] It is important to note that the Applicants had counsel - allegedly experienced immigration counsel - who did not object to the questioning or its tone. While failure to object is not necessarily fatal, this fact combined with a review of both versions of the transcript show that there is no grounds for review on this issue.
[16] For these reasons, this application for judicial review will be dismissed. No question will be certified.
(s) Michael L. Phelan
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3019-04
STYLE OF CAUSE: JOSE JULIAN RODRIGUEZ QUIROA and MIRIAM DELROSARIO PORTILLO FAJARDO v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: January 27, 2005
REASONS FOR ORDER: Phelan J.
DATED: February 21, 2005
APPEARANCES:
Mr. Michael Koraman FOR THE APPLICANTS
Mr. Marcel Larouche FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
Otis & Korman
Toronto, Ontario FOR THE APPLICANTS
Mr. John H. Sims, Q.C.
Deputy Attorney General of Canada
Ottawa, Ontario FOR THE RESPONDENT
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