Date: 20090305
Docket: IMM-2835-08
Citation: 2009 FC 234
Ottawa, Ontario, March 5, 2009
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
ERMAL
ELEZAJ
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
The applicant is a
citizen of Albania seeking the judicial review of a decision the Refugee
Protection Division of the Immigration and Refugee Board (the Board) dated May
31, 2008, wherein the Board determined 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]
The applicant alleges
to be homosexual. His claim is based on an alleged fear of persecution at the
hands of his former girlfriend’s relatives who would have beaten him and
threatened to kill him after they learned about his sexual orientation.
[3]
The Board simply did
not believe the applicant’s story. In a thirteen-page decision, the Board thoroughly
motivated its negative credibility findings. Same should not be disturbed by
the Court unless found to be unreasonable in the circumstances, which is not
the case here.
[4]
As a first ground of
attack, the applicant argues that the Board breached his right to procedural fairness
by relying on mistranslated questions and answers, while assurance had been
given earlier to the applicant that the Board would rely only on the corrected
version of the record of the December 2006 hearing. There is no doubt that “the
denial of a right to a fair hearing must always render a decision invalid,
whether or not it may appear to a reviewing court that the hearing would likely
have resulted in a different decision” (Cardinal v. Kent Institution, [1985]
2 S.C.R. 643, at para. 23). That said, having reviewed the Certified Tribunal
Record and heard counsel representations, I am satisfied that the hearing
before the Board was fair. Moreover, I entirely agree with the respondent’s
view that the applicant has not established that the Board relied on an
erroneous translation to make the impugned credibility findings. Be that as it
may, the discrepancies noted between the interpreter’s version and the accurate
interpretation are relatively minor. Moreover, the negative credibility
findings made by the Board as explained below can sustain an attack based on
the alleged failure to consider relevant evidence or on alleged capricious or
arbitrary findings, having regards to the totality of the evidence.
[5]
This brings me to the
second ground of attack, which questions the reasonableness of the Board’s overall
conclusion. I am not convinced that I should embark on a microscopic analysis of the Board’s reasons. Overall,
there are enough unexplained contradictions, inconsistencies and implausibilities
in the testimony and evidence adduced by the applicant, which do not need to be
repeated in the present reasons, to support a general finding of
non-credibility. Suffice it to say that the Board’s findings of fact are based
on the evidence and are not otherwise arbitrary or capricious. Accordingly, following my careful review of
the written submissions of the parties and the Certified Tribunal Record, as
well as the documentary evidence. It
is not for this Court to substitute its personal opinion for that of the Board in
re-evaluating the evidence submitted before it. I also dismiss the applicant’s
argument that the Board made a reviewable error in discarding the affidavit of
the applicant’s mother. In view of the other evidence supporting its negative
credibility findings, the Board was entitled not to give any weight to such
corroborative evidence emanating from a close relative.
[6]
In
conclusion, I am of the view that the Board 's overall conclusion
dismissing the applicant's claim is entirely reasonable and does not warrant
this Court's intervention, considering that it “falls within the range of
possible, acceptable outcomes which are defensible in respect of the facts and
law” (Dunsmuir v. New Brunswick, [2008] 1 S.C.R. 190), and that there
has been no breach of natural justice or procedural fairness. Accordingly, this application for judicial
review is dismissed.
[7]
The applicant
is proposing the following two questions for certification:
1. Is it an error for a
tribunal to take a linear approach to the evidence and discard documentary
evidence that could corroborate the applicant’s testimony on the basis of its
finding that the applicant’s oral testimony is not credible?
2. Must the breach of
procedural equity be determinative of the case in order to justify the Court’s
intervention?
[8]
In my humble opinion,
neither of the questions proposed above meets the test for certification, as
they do not transcend the interest of the parties, do not contemplate issues of
broad significance and are not determinative of the judicial review. I would
add that the questions as framed are too general and any answer would not
likely clarify an undecided legal point of general importance. Questions
related to evidentiary findings or breach of procedural equity are mostly fact
driven and will not generally transcend the interests of the immediate parties
to the litigation. This case is no exception. Thus, no question shall be
certified.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that the
application for judicial review be dismissed. No question is certified.
“Luc
Martineau”
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