Date: 20020225
Docket: IMM-3595-00
Neutral citation: 2002 FCT 202
Vancouver, British Columbia, this 25th day of February, 2002
PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE
BETWEEN:
KHADIJA ISMAIL AHMADA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application for judicial review of the decision of a panel of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") dated July 12, 1999 (written reasons), wherein the Board determined that the applicant was not a Convention refugee.
[2] The applicant seeks an order of certiorari setting aside the above decision, referring the matter back for redetermination by a differently constituted panel.
Background
[3] The applicant is a citizen of Tanzania who claimed Convention refugee status in Canada on the basis of her political opinion.
[4] The applicant claims to have been targeted by authorities because of her involvement with the Civic United Front (CUF) party.
[5] The Board found that there was not sufficient credible and trustworthy evidence to find that the applicant had a well founded fear of persecution in Tanzania. The Board had serious credibility concerns regarding the applicant's narrative, her travel to Canada and her failure to make a Convention refugee claim in other Convention countries she visited, namely the United Kingdom and the United States, before arriving in Canada. The Board found that the applicant is not a Convention Refugee.
Applicant's Submission
[6] The applicant submits that the Board based its decision on an erroneous finding of fact, that it made in a perverse or capricious manner without regard to the material before it. The applicant submits that the Board erred by reaching for inconsistencies to support a finding of lack of credibility.
[7] The applicant submits that the Board failed to observe a principle of natural justice, procedural fairness or other procedure that it was required by law to observe. The applicant submits that the Board erred in making credibility findings based upon a perceived lack of credibility without providing the applicant a reasonable opportunity to respond to its concerns.
[8] The applicant submits that the Board failed to provide any cogent reason for its decision to place little weight on the CUF membership card.
[9] The applicant submits that the finding that the applicant was unable to provide details of her participation in the October, 1995 election campaign neglects her actual testimony in which she did provide significant details.
[10] The applicant submits that suggesting that her destination was Canada was a reasonable explanation for why no refugee claim was made en route to Canada.
[11] The applicant submits that the Board should have stated its credibility concerns during the hearing to avoid violating the principles of natural justice.
Respondent's Submissions
[12] The respondent notes that no weight can be given the applicant's affidavit because it was not appropriately translated into Swahili and the applicant does not speak English.
[13] The respondent submits that the Board was justified in questioning the applicant's timing in relation to learning about and joining the CUF. Given the high level of involvement claimed by the applicant, it was open to the Board to question why the applicant waited three years after learning about the CUF before joining.
[14] The respondent submits that the Board was justified in doubting the CUF membership card, given that the address listed for her was different than where she claimed to live and that she couldn't satisfactorily explain how she obtained the card. Further, this was the only document that purported to link the applicant to the CUF and so it was correct to question the authenticity of it.
[15] The respondent submits that the applicant could not provide sufficient details of political participation, so the Board was justified in questioning this aspect of her claim.
[16] The respondent submits that the Board considered the applicant's explanation that the applicant did not make a refugee claim in the U.K. or the U.S. because she was en route to Canada. The respondent submits that the Board did not ignore any evidence on this point, but was justified in questioning the explanation.
[17] The respondent submits that the Board did not breach the principles of natural justice. The respondent submits that the applicant has not demonstrated that the Board committed a reviewable error in determining her claim.
Issue
[18] Did the Board make a reviewable error?
Analysis
[19] The respondent raised a preliminary issue in relation to the applicant's affidavit. The applicant's Personal Information Form ("PIF") was translated into the Swahili language for her by an interpreter.. At the hearing, before the Board, the applicant gave evidence through an interpreter. The respondent submitted that Rule 80(2) of the Federal Court Rules, 1998 required an affidavit of an interpreter that the interpreter interpreted the affidavit to the deponent in her own language. Rule 80(2) states:
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80.(2) Where an affidavit is made by a deponent who is blind or illiterate, the person before whom the affidavit is sworn shall certify that the affidavit was read to the deponent and that the deponent appeared to understand it.
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80.(2) Lorsqu'un affidavit est fait par un handicapé visuel ou un analphabète, la personne qui reçoit le serment certifie que l'affidavit a été lu au déclarant et que ce dernier semblait en comprendre la teneur.
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[20] Rule 332(4) of the former Federal Court Rules stated:
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332.(4) When an affidavit is made in English by a person who does not speak the English language, or in French by a person who does not speak the French language, the affidavit shall be taken down and read over to the deponent by interpretation of a person previously sworn faithfully to interpret the affidavit (Form 29).
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332.(4) Lorsqu'un affidavit est fait en anglais par une personne qui ne parle pas anglais, ou en français par une personne qui ne parle pas français, l'affidavit doit être rédigé et lu au déposant par le truchement d'une personne préalablement assermentée pour assurer l'interprétation fidèle de l'affidavit (Formule 29).
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This section was not included in the current Federal Court Rules, 1998 rule relating to affidavits. Accordingly, I am not prepared to declare the affidavit to be of no weight. Since the applicant had to have her PIF translated and since she testified at the hearing through an interpreter because she could not give her testimony in English and since there is no explanation as to how she was able to give an affidavit in English, the weight to be given to the affidavit is affected.
[21] The role of the Court in reviewing a decision such as the present decision, is not to substitute its opinion for that of the Board as long as the Board's decision was not unreasonable and the Board did not err in law.
[22] The findings of the Board said to be in error by the applicant include the following:
1. The applicant "could not provide a reasonable explanation for why she did not become involved" with CUF before the 1995 general election.
2. The Board placed little weight on the CUF membership card.
3. The applicant was unable to provide details of her involvement in the October, 1995 election campaign.
4. The applicant's failure to claim as a refugee in either the United Kingdom or the United States.
[23] I have reviewed the transcript of the hearing, and the Board at the commencement of the hearing stated that credibility was an issue. As well, it appears that the applicant was questioned on the above issues and on the other issues raised at the hearing by the Board. It was open to the Board to be concerned as to why the CUF membership card was not mentioned in the PIF and why the applicant's application stated that she travelled on a Tanzanian passport in her own name (Tribunal Record page 94) and at the hearing she stated the passport was in someone else's name.
[24] The Board has jurisdiction to make credibility findings. So long as the Board points to evidence on which it based its credibility findings, and so long as the applicant had questions about this evidence put to her at the hearing (so as to have an opportunity to respond to the concerns), then barring unreasonable conclusions by the Board, this Court should not interfere.
[25] I do not find the Board's decision to be unreasonable and therefore the application for judicial review is dismissed.
[26] Neither party wished to submit a serious question of general importance for my consideration.
ORDER
[27] IT IS ORDERED that the application for judicial review is dismissed.
"John A. O'Keefe"
J.F.C.C.
Vancouver, British Columbia
February 25, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3595-00
STYLE OF CAUSE: KHADIJA ISMAIL AHMADA
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Tuesday, November 13, 2001
REASONS FOR ORDER AND ORDER OF O'KEEFE J.
DATED: Monday, February 25, 2002
APPEARANCES:
Mr. Michael Brodzky
FOR APPLICANT
Mr. Martin Anderson
FOR RESPONDENT
SOLICITORS OF RECORD:
Michael Brodzky
69 Elm Street
Toronto, Ontario
M5G 1H2
FOR APPLICANT
Department of Justice
Toronto Regional Office
2 First Canadian Place
Suite 3400, Exchange Tower, Box 36
Toronto, Ontario
M5X 1K6
FOR RESPONDENT
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