Date: 20080404
Docket: IMM-2674-07
Citation: 2008 FC 441
BETWEEN:
MIHERET
TEKU JEGO
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR
ORDER
GIBSON J.
INTRODUCTION
[1]
These
reasons follow the hearing on the 6th of March, 2008, at Toronto, of
an application for judicial review of a decision of the Refugee Protection
Division (the “RPD”) of the Immigration and Refugee Board wherein the RPD
determined the Applicant not to be a Convention refugee or a person in need of
like protection to that of a Convention refugee in Canada. The decision of the
RPD is dated the 7th of June, 2007.
BACKGROUND
[2]
The
Applicant is a citizen of Ethiopia, of Gedeo tribal
ethnicity. She is in her early twenties. In 1999, when the Applicant was a
high school student, she joined the Gedeo Student Association, described in the
reasons for the decision under review as a group of students “concerned about
advancing the rights of Gedeo people in Ethiopia.” The Gedeo
Student Association was supported by the Gedeo People’s Democratic Organization.
[3]
In
2000, the Applicant was elected as the assistant leader of the Gedeo Student
Association. Later in the same year, when the head of the Association was
arrested, jailed, and, upon release, expelled from school for a year, the
Applicant assumed the leadership role.
[4]
The
Applicant graduated from high school at the end of 2001. She went to Awassa in
Ethiopia where she
commenced a college programme in January of 2002. The Applicant continued her
activity with the Gedeo Student Association. In August of 2002, the
Applicant’s home was searched by police but no “incriminating” materials were
found. The Applicant graduated from college in August of 2003.
[5]
The
Applicant found employment in November of 2003 at the Dilla Municipality in Ethiopia, as an
auditor. She continued in her role with the Gedeo Student Association.
[6]
In
2004, the Applicant participated in an anti-government protest in the Dilla
area. Government security forces fired on the participants and five hundred
(500) people were killed. One day after the demonstration, the Applicant was
arrested. She was detained for approximately one (1) month during which time
she was “interrogated and tortured”. When, following her release, she
attempted to return to work, she found she was “black listed” from continuing
with her government employment. She was unable to find employment in the
private sector. Her parents, both schoolteachers, were demoted.
[7]
The
Applicant applied for entry to a business management programme at George Brown College in Canada and was
accepted. She arrived in Canada to commence the programme on the 2nd
of December, 2004. She filed her claim for Convention refugee or like status
on the 7th of November, 2005, after she was advised that conditions
in Ethiopia had worsened
for her if she chose to return.
THE HEARING BEFORE THE
RPD, POST HEARING SUBMISSIONS ON BEHALF OF THE APPLICANT AND THE DECISION UNDER
REVIEW
[8]
The
hearing before the RPD was conducted with the aid of an Ethiopian/English interpreter.
The Applicant testified in Ethiopian. She was represented by counsel who
examined the Applicant first. The Presiding Member had no “…problem with
respect to [the Applicant’s] identity.” No issues were raised during the
hearing with regard to the quality of the interpretation.
[9]
At
the close of the hearing, which was not long, counsel for the Applicant
requested permission to provide written submissions “…given the fact that there
is a large volume of material that I haven’t reviewed for the 2006 package,
and there is some question of whether or not things are referred to in the
documentation package.” Permission was granted.
[10]
In
written submissions on behalf of the Applicant, dated the 12th of
April, 2007, counsel writes at the first page of the submissions:
We hereby further
request that, in light of the obvious interpretation problems experienced in
the hearing, that if any adverse credibility findings are to be drawn from the
testimony given on that date [the date of hearing], that the Board first audit
the recording of the hearing for accuracy of interpretation. We submit
that this is essential as accurate interpretation is a vital component of
natural justice. The problems with the interpretation are discussed further,
below.
[emphasis in
original]
Seven (7) further paragraphs of the written
submissions under the heading “Credibility” are devoted to that issue and, in
particular, to barriers to clear testimony. Counsel writes:
5. It is submitted that
the panel should be particularly careful in ascribing too much weight to any
inconsistencies in the testimony in this case, in light of the obvious barriers
to effective communication at the hearing that the claimant faced.
Counsel noted the Applicant’s young age at
the date of hearing, twenty-two (22) years old, the claimant’s psychological
trauma and the “evident problems with the interpretation related to dates.”
Once again, I note that this was the first expression of concern on behalf of
the Applicant with regard to the quality of interpretation at the Applicant’s
hearing.
[11]
In
its reasons in support of the decision under review, the RPD devoted slightly
more than a page to the “Preliminary Issue” of what it described as “…discrepancies
in the evidence from that found in the written documentation.” Accuracy of
interpretation was included within that general expression of concern. For
ease of reference, the paragraphs from the RPD’s reasons under the heading of
“Preliminary Issue” are reproduced as an annex to these reasons.
[12]
Following
the discussion of the “Preliminary Issue”, the RPD turned to its analysis. In
the second brief paragraph under that heading, the RPD wrote:
After careful
consideration of all of the evidence and representations, the panel determines
that the claimant [here the Applicant] has not established an objective or
subjective basis for her fear of persecution or serious harm, because of a lack
of credibility in pivotal areas of her testimony and the lack of credible
written evidence.
Just prior to the heading “Conclusion” in
its reasons, the RPD wrote:
Based on the lack of
documentary and credible viva voce evidence, the Panel finds, based on a
balance of probabilities, that the claimant has not established a well-founded
fear of persecution by reason of her actual or perceived political opinion and/or
ethnicity. Therefore, the Panel concludes that the claimant is not a
Convention refugee.
Since the Panel finds
the claimant’s evidence not to be credible and her fear of persecution not
well-founded, the Panel finds that, more likely than not, the claimant will not
face serious harm should she return to Ethiopia. Therefore,
the Panel concludes that the claimant is not a person in need of protection
pursuant to section 97(1)(a) and (b) of the IRPA, as there is no risk to
her life, or of cruel and unusual treatment or punishment, or a danger,
believed on substantial grounds to exist, of torture, upon returning to
Ethiopia.
THE ISSUES
[13]
In
the Memorandum of Argument filed on behalf of the Applicant, only one (1) issue
is identified and that in the following terms:
The Applicant submits
that the issue is: Did the Refugee Division err in determining that the
Applicant was not a Convention refugee or a person in need of protection?
[14]
At
hearing, counsel for the Applicant urged that the denial of an audit of the
interpretation at the hearing constituted a reviewable error and a breach of
natural justice and that the determination that the Applicant had not
established an objective or subjective basis for her alleged fear of
persecution or serious harm, because of a lack of credibility in pivotal areas
of her testimony and a lack of credible written evidence, constituted a further
reviewable error.
ANALYSIS
a) Standard
of Review
[15]
This
application for judicial review was heard the day before the decision of the
Supreme Court of Canada in Dunsmuir v. New Brunswick was
delivered. I will therefore not rely on that authority for determination on
the issue of standard of review although, in the circumstances of this particular
case, I am satisfied that it is of little, if any, impact.
[16]
The
issue of refusal to order an audit of the interpretation provided at the
Applicant’s hearing before the RPD is, I am satisfied, an issue of procedural
fairness. As such, I am satisfied that the decision of the RPD in this regard
must be reviewed against a standard of “correctness”.
[17]
The
remaining issue, that being whether or not the Applicant established an
objective or subjective basis for her fear of persecution or serious harm
because of a lack of credibility in pivotal areas of her testimony and a lack
of credible documentary evidence, is an issue to be examined against a standard
of “patent unreasonableness” or, put another way, against the standard
provided in paragraph 18.1(4)(d) of the Federal Courts Act since
it turns entirely on a review of the RPD’s weighing of the evidence before it,
a role at the heartland of its expertise.
b) The
determination not to order an audit of the interpretation services provided at
the hearing before the RPD
[18]
In
Mohammadian v. Canada (Minister of
Citizenship and Immigration), Justice
Pelletier, then of the predecessor to this Court, wrote at paragraph [29]:
In this case, I find
that the question of the quality of the interpretation should have been raised
before the CRDD because it was obvious to the applicant that there were
problems between him and the interpreter. His affidavit refers to the
difficulty he had understanding the interpreter and says that at times he did
not understand what was being said. This is sufficient to require him to speak
out at the time. His failure to do so then is fatal to his claim now. The
applicant’s assertion that he did not know he could object to the interpreter
is not credible given that the first hearing was adjourned because he and the
interpreter could not communicate. Clearly, the CRDD had shown it was alive to
the issue of interpretation. As a result, I do not have to engage in an
analysis as to whether all of the elements of Tran have been met since,
even if they have, the applicant’s failure to make a timely complaint in
circumstances where it was reasonable to expect him to do so means that relief
is not available to him.
Precisely the same might be said here.
Problems of interpretation could have been reasonably addressed at the time of
the hearing before the RPD, and there was an obligation to do so then and not
later, in judicial review proceedings such as this. The Applicant was
represented before the RPD by counsel, though not the counsel who appeared on
her behalf on this judicial review. The Applicant could have expressed her
concerns regarding interpretation to her counsel and the matter could have been
addressed then and there. It was not. Nor was it raised by counsel as an
issue at the close of the hearing when time to provide written submissions was
requested and granted. The matter was only raised in written submissions and
then only with respect to a limited aspect of the interpretation. That was
simply too little, too late. I am satisfied that the RPD made no reviewable
error, against a standard of review of “correctness”, in rejecting the
Applicant’s request for an audit of the interpretation at her hearing before
the RPD.
c) The
credibility determination as to pivotal areas of the Applicant’s testimony and
a lack of credible documentary evidence
[19]
This
Court may only interfere in the weighing of the evidence before a tribunal such
as the RPD if the tribunal based its decision or order on an erroneous finding
of fact that it made in a perverse or capricious manner or without regard for
the material that was before it. Put another way, it is not for this Court, on
judicial review, to substitute its weighing of the evidence that was before the
tribunal for that of the tribunal itself. The law in this regard has been long
settled. In Aguebor v. Ministre de l’Emploi et de l’Immigration, Justice
Décary, for the Court, wrote (in translation):
There is no longer any
doubt that the Refugee Division [the predecessor to the RPD], which is a specialized
tribunal, has complete jurisdiction to determine the plausibility of
testimony: who is in a better position than the Refugee Division to gauge the
credibility of an account and to draw the necessary inferences? As long as the
inferences drawn by the tribunal are not so unreasonable as to warrant our
intervention, its findings are not open to judicial review. …
[20]
Precisely
the same might be said here with regard to the RPD’s weighing of the totality
of the evidence before it. I am satisfied that, while I might have reached a
different conclusion, that is not the issue. I simply cannot conclude that the
RPD’s weighing of the totality of the evidence before it was perverse or
capricious or arrived at without regard to the totality of the evidence that
was before it.
CONCLUSION AND
CERTIFICATION OF A QUESTION
[21]
For
the foregoing reasons, this application for judicial review will be dismissed.
Counsel for the Applicant will have seven (7) days from the day on which these
reasons are distributed to counsel by the Court to serve and file submissions
on certification of a question. Upon service and filing of any such
submissions, counsel for the Respondent will have seven (7) days to serve and
file responding submissions. Only thereafter will an Order issue dismissing
this application for judicial review.
“Frederick E. Gibson”
Ottawa,
Ontario.
April
4, 2008
ANNEX
Preliminary Issue
During the course of the oral
testimony, there were several discrepancies in the evidence from that found in
the written documentation. The claimant’s explanations for these differences
were either that she “had problems remembering” or that “the problem is in the
interpretation into English.” At the hearing, neither the claimant, nor her
lawyer indicated that there was a problem with the services provided by the
interpreter.
In written submissions provided
on April 11, 2007, it was requested that an audit of the hearing for accuracy
of interpretation should be performed in the event that adverse credibility
findings were drawn from the claimant’s evidence. Specifically, it was
submitted that the claimant’s testimony had been compromised by “evident
problems with the interpretation related to dates.”
The Panel notes, as is
discussed in-depth below, that the claimant’s oral evidence was at odds with
regard to names of associations and other relevant facts in addition to the
dates. During the course of her testimony, she was specifically asked if you
could read English and she stated “yes,” she was able to do so. Plus, she
studied at George Brown College in a course presented in English. Her school documents in Ethiopia are written in English and it is
noted that, at a minimum, she studied English from 1990 until 1993 and that her
grades in this course were higher than that of most other subjects.
When the claimant completed her
application for refugee protection at Citizenship and Immigration Canada (CIC)
on November 29, 2005, she indicated that she did not require an interpreter.
Nor was the content of the Personal Information Form interpreted to her;
although, she swore an affirmation at the hearing declaring that the
information found in this document was truthful.
In addition, the Panel is only
aware of one significant discrepancy in the translation of the dates during the
course of the hearing and it was subsequently clarified.
For all of the above reasons,
the Panel finds that an audit of the hearing is not required. The claimant has
a working knowledge of English and has been able to study at the College level
in this language. The interpreter at the hearing is qualified to perform
translation services. In addition, noting that she may have provided an
incorrect date based on the Ethiopian calendar, the interpreter was given the
opportunity to correct the error, which was done. It is also noted that the
correction made in was in support of the claimant’s claim.
Thus, the Panel finds that it
is not necessary to request an audit of the interpretation at the hearing
related to dates or any other subject matter. Rather, the Panel is satisfied
that the claimant’s discrepancies surrounding dates and other facts at the
hearing are credibility issues and have been provided the appropriate degree of
evidentiary weight in accordance with this determination.
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