Gabissova v. Canada (Minister of Citizenship and Immigration), 2004 FC 362

Date: 20040310

Docket: IMM-3388-03

Citation: 2004 FC 362

OTTAWA, ONTARIO, THE 10th DAY OF MARCH 2004

PRESENT:      THE HONOURABLE MR. JUSTICE MARTINEAU

BETWEEN:

                                                           OXANA GABISSOVA

                                                                                                                                            Applicant

                                                                         - and -

                                               THE MINISTER OF CITIZENSHIP

                                                          AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review of a decision by the Refugee Protection Division of the Immigration and Refugee Board (the panel), dated April 22, 2003, that the applicant is not a "Convention Refugee" or a "person in need of protection" under sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (the Act).

[2]                First, the applicant is challenging the quality of the translation before the panel. I cannot accept this first ground of review. On the one hand, the applicant's evidence is not convincing. In fact, this evidence is limited to the affidavit of Mr. Arsen Kerssesov, the applicant's current spouse, whose linguistic expertise has not been shown to the Court. On the other hand, the allegations contained in this affidavit do not seem determinative to me, and do not affect the validity of the decision. It is clear that the applicant benefited from the services of two accredited interpreters (after the first interpreter was replaced at the beginning of the hearing) whose skills are recognized by the panel. The translation provided at the hearing need not be perfect. However, it must be continuous, accurate, impartial, consistent and carried out by a competent individual - which, overall, appears to me to be the case. Accordingly, the Court's intervention is not warranted in this case (R. v. Tran, [1994] 2 S.C.R. 951 (S.C.C.); Dhot v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 1264 (F.C.T.D.) (QL) at paragraphs 5-6; and Birgani v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 590 (F.C.T.D.) (QL) at paragraphs 7-8).

[3]                The second allegation made by the applicant pertains to the validity of the panel's general finding of lack of credibility. This allegation is also unfounded. Each error of fact alleged by the applicant need not be addressed here. It has been clearly established that the determination of an refugee claimant's credibility is the heartland of the Board's jurisdiction (R.K.L. v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 162 (F.C.T.D.) (QL) at paragraph 7 and (2003), 228 F.T.R. 43. In other words, it is recognized that the Board has a well-established expertise to rule on questions of fact, and most particularly, to assess the credibility and subjective fear of persecution of a claimant. In this case, the applicant has not persuaded me that the general finding of lack of credibility is arbitrary or capricious, although some of the findings of fact made by the panel might seem questionable or inaccurate. On the other hand, even if I do not necessarily share the interpretation given by the panel with respect to certain aspects of the documentary evidence, the panel's decision is supported by the evidence and does not appear to be patently unreasonable. Nor is this a case where it is obvious that the sheer number of errors, whether material or not, leaves one with little confidence in the soundness of the other conclusions (Haji v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 1266 (F.C.T.D.) (QL) at paragraph 14).

[4]                The parties did not propose any question for certification.

                                                                       ORDER

FOR THESE REASONS, THE COURT ORDERS that the application for judicial review be dismissed. No question of general importance will be certified.

                   "Luc Martineau"                  

    Judge

Certified true translation

Kelley A. Harvey, BA, BCL, LLB

                                                             FEDERAL COURT

                                                      SOLICITORS OF RECORD

DOCKET:                                                                         IMM-3388-03

STYLE OF CAUSE:                                                          OXANA GABISSOVA v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION

PLACE OF HEARING:                                                   MONTRÉAL, QUEBEC

DATE OF HEARING:                                                     MARCH 4, 2004

REASONS FOR ORDER

AND ORDER:                                                                 THE HONOURABLE MR. JUSTICE MARTINEAU

DATE OF REASONS:                                                     MARCH 10, 2004

APPEARANCES:

ALAIN JOFFE                                                                  FOR THE APPLICANT

CAROLINE CLOUTIER                                                    FOR THE RESPONDENT

SOLICITORS OF RECORD:

ALAIN JOFFE                                                                  FOR THE APPLICANT

MONTRÉAL, QUEBEC

MORRIS ROSENBERG                                                    FOR THE RESPONDENT

DEPUTY ATTORNEY GENERAL OF CANADA