Date: 20080710
Docket: IMM-3534-07
Citation: 2008 FC 861
Ottawa, Ontario, July 10, 2008
PRESENT: The Honourable Mr. Justice de Montigny
BETWEEN:
KAYODE
FASASI LAWAL
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
The
applicant seeks the judicial review of the August 2, 2007 decision of the
Refugee Protection Division (the Board) which concluded that he was neither a
Convention refugee nor a person in need of protection pursuant to sections 96
and 97 of the Immigration and Refugee Protection Act (the IRPA).
The applicant, a citizen of Nigeria, believes he would be
persecuted in his country as a result of his membership in a particular social
group, namely Nigerian gay males, by a local gang called the “Bad Boys”, and by
his ex-girlfriend’s father. For the reasons that follow, I have come to the
conclusion that this application ought to be dismissed.
I. Facts
[2]
The
applicant was born in Lagos, Nigeria, on April 4, 1970. In 1993, he started
dating a girl and they had three children together.
[3]
The
applicant alleges that in 2000, he started a romantic relationship with a man
named Mr. Brown. As a result of that relationship, he claims that his uncle
and a local gang called the “Bad Boys” bothered him while he worked as a waiter
and a bus driver. He said that he was afraid of these men and described how
they had put a gun to his head and had beaten him. He also claims that his
ex-girlfriend’s father threatened him.
[4]
The
applicant stated that Mr. Brown made sudden arrangements for the two of them to
leave Nigeria but would not tell him why.
They were afraid that the applicant’s uncle would advise the police of their
homosexuality, which is a criminal offence in Nigeria, or that the Bad Boys would harm them.
[5]
On January
21, 2005, the applicant and Mr. Brown arrived in Lisbon, Portugal. The applicant stayed in Portugal for about two weeks, living
with Mr. Brown. During this time, he did not make a refugee claim. The
applicant stated that he had thought about staying in Portugal, but that he had problems with the
language and did not know where to make a refugee claim.
[6]
Mr. Brown
made arrangements for the applicant to leave Portugal for Canada. The applicant testified that his
intent upon coming to Canada was to make a refugee claim.
When the applicant arrived in Canada, he made a refugee claim but when asked
what he feared, the applicant stated that he was afraid of the Bad Boys in Nigeria. He did not mention that he
feared returning to Nigeria because he was homosexual or
that he feared his ex-girlfriend’s father.
[7]
The
applicant claimed that he did not mention his fear of returning to Nigeria as a result of his
homosexuality because he was afraid of being sent home. He also stated that he
was ashamed and did not want to tell the intake officer that he was gay. When
asked why he did not inform the officer about his fear for his ex-girlfriend’s
father, the applicant waffled, saying at first that he did mention it, then
that he did not mention it and finally, he testified that perhaps he had
mentioned it.
II. The impugned decision
[8]
The Board
found that the applicant was not credible in his testimony about his reasons
for making a refugee claim and that he lacked subjective fear. The Board
member found the applicant’s failure to seek asylum in Portugal incompatible with the actions of a
person with a genuine subjective fear who would have sought refugee protection
at the first available opportunity.
[9]
Concerning
his refugee claim in Canada, the Board member inferred a
negative credibility finding from the fact that the applicant failed to mention
his homosexuality and the problems with his ex-girlfriend’s father at the port
of entry. Although he acknowledged that the applicant could have been ashamed
of his homosexuality, which could explain his omission, the tribunal member
concluded that the applicant’s explanations regarding his ex-girlfriend’s
father were not credible.
[10]
The Board
member also called into question the applicant’s homosexuality as he found that
he “has cooked up the story of being a homosexual in the attempt to manufacture
a nexus to a Convention refugee ground”. He stated that the applicant should
have been able to provide corroborative evidence in this regard.
[11]
He gave
little probative value to two letters from the applicant’s brother, as he was
found not to be an independent witness and because the letters appeared to be
in two different handwritings. Further, he concluded that the applicant has
joined EGALE, an organization for gay, bisexual and trans-identified people and
their families, only in an attempt to bolster his claim. The Board member
based his findings on the applicant’s inability to describe the purpose of the
organization.
[12]
The Board
member also drew a negative inference from the fact that the applicant was
hesitant and uncertain when he was asked about the local activities he
participated in Canada. Although he claimed that he
joined lots of gay groups, the applicant was unable to produce his membership
cards. Further, he was unable to give the name and location of the gay bars he
claimed to attend often. The Board member also rejected the applicant’s fear
of his ex-girlfriend’s father.
III. Issues
[13]
This
application for judicial review raises the following questions:
A- Did the Board err in making
unreasonable findings of fact?
B- Was the translation at the
Board hearing adequate?
C- Was the applicant afforded
a fair hearing?
D- Did the Board member’s
statement give rise to a reasonable apprehension of bias?
IV. Analysis
[14]
As a
result of the recent decision of the Supreme Court of Canada in Dunsmuir
v. New
Brunswick,
2008 SCC 9, 164 A.C.W.S. (3d) 727 (Dunsmuir), it is now trite law that
credibility and fact findings are reviewable on the reasonableness standard.
This is a deferential standard, leaving administrative tribunals a margin of
appreciation as long as its decision falls within the range of “acceptable and
rational solutions”. As the Supreme Court put it, reasonableness is concerned
with “whether the decision falls within a range of possible, acceptable
outcomes which are defensible in respect of the facts and law”: Dunsmuir,
par. 47.
[15]
The
Supreme Court has left intact the standard of review applicable to issues of
procedural fairness and natural justice. This Court must therefore determine
if the requirements have been properly followed: see Sketchley v. Canada (Attorney General), 2005 FCA 404, [2006] 3 F.C.R. 392; Ellis-Don
Ltd. v. Ontario (Labour Relations Board), 2001 SCC 4 at para. 65, [2001] 1 S.C.R.
221.
A- Findings of facts
[16]
The
applicant argues that some of the Board’s findings of fact are unreasonable.
The first impugned finding of fact is the Board’s finding that the applicant
lacks subjective fear. The Board found that the applicant’s actions “belie
someone fleeing from fear”. When questioned about his time in Portugal, the applicant stated that he
stayed there about two weeks with Mr. Brown. When asked if he considered
staying in Portugal longer, the applicant replied
that he had thought about it but that he didn’t know where to make a refugee
claim and that he had problems with the language. The Board found the
applicant’s explanation for not having sought refuge in Portugal at the first available
opportunity to be unreasonable. Further, the Board noted that this explanation
put the applicant’s subjective fear into question.
[17]
The Board
also found the applicant’s actions upon arrival in Canada to be further evidence of a lack of
subjective fear. The applicant testified that he intended to make a refugee
claim upon arrival in Canada but when asked what he
feared, he never mentioned his sexual orientation. He later stated that he did
not mention this because he was ashamed, he did not want the intake officer to
know he was gay and he was afraid of being sent home. When asked why he didn’t
tell the officer that he feared his ex-girlfriend’s father, the claimant said
that he did tell him but then later recanted saying that he didn’t and finally
that he might have mentioned it. The Board noted this discrepancy in the
applicant’s testimony and found this lack of credibility to be further evidence
of a lack of subjective fear.
[18]
On the
basis of the applicant’s testimony about his actions upon his arrivals in
Portugal and Canada, it was open to the Board
member to find that the applicant lacked subjective fear. The Board’s finding
is not unreasonable.
[19]
The
applicant also argues that the Board’s finding of lack of credibility regarding
his alleged homosexuality is unreasonable. The Board found that “the claimant
has cooked up the story of being a homosexual in the attempt to manufacture a
nexus to a Convention refugee ground”.
[20]
The Board
based its negative credibility finding on the fact that the applicant failed to
provide corroborative evidence reasonably expected to establish, on a balance
of probabilities, that he is gay. The applicant did not present any friends or
witnesses or documents to support his claimed sexual orientation. He only
testified that since his arrival in Canada,
he contributes to gay-related functions and activities in Winnipeg.
[21]
When asked
what local activities he participated in, the applicant answered that there
were many but could not indicate which ones. He also replied that he was
waiting for membership cards from groups that he joined after his arrival in Canada in February, 2005. When
answering the Board’s questions about the local activities, the Board noted
that the applicant’s answers contained long pauses and that he seemed uncertain
of his answers. He mixed up the names and locations of the local gay bars that
he claimed to have attended. The Board did not find the applicant credible in
his answers.
[22]
The Board
afforded very little weight to two hand-written letters purported to be from
the applicant’s brother that were identical in content but written in different
handwriting. When confronted with this discrepancy, the applicant stated that
he didn’t write them and that maybe his brother had different people write
them. It was open to the Board to make this finding on the basis of the
evidence before it.
[23]
To support
his claimed homosexuality, the applicant provided a letter from EGALE Canada
confirming that he was a member. Despite having the letter, the applicant
could not explain to the Board the purpose of EGALE or the benefits of
membership. On the totality of the evidence, the Board found that the
applicant had “simply joined EGALE in an attempt to bolster his claim”. This
finding was open to the Board to make based on the evidence before it.
[24]
It was
open to the Board to weigh the evidence before it and to make factual findings
on this issue. This Court cannot disturb these findings on judicial review
absent unreasonableness. The applicant failed to show that the findings are
not within the range of possible, acceptable outcomes which are defensible in
respect of the facts and law.
B- Interpretation
[25]
Rule 14 of
the Refugee Protection Division Rules (SOR/2002-228, as am. S.C. 2002,
c. 8, s. 182(3)(a)) provides for an interpreter at Board proceedings. The
right to an interpreter in a proceeding in another language is also a legal
right enshrined in s. 14 of the Canadian Charter of Rights and Freedoms;
as the Federal Court of Appeal found in Mohammadian v. Canada (MCI),
2001 FCA 191, [2001] 4 F.C. 85, the analysis developed by the Supreme Court of
Canada with respect to section 14 in R. v. Tran, [1994] 2 S.C.R.
951, 117 D.L.R. (4th) 7, generally applies to a proceeding before the Refugee
Division.
[26]
The
general standard to be met with respect to the quality of interpretation is
that it must be continuous, precise, impartial and contemporaneous. For the
interpretation to meet this standard, it must be established that the applicant
understood the interpretation and adequately expressed himself through the
interpreter. Perfection is not required. See Mohammadian, supra, at
paras. 4 and 6; Lamme v. Canada (MCI), 2005 FC 1336, at para. 3, 143
A.C.W.S. (3d) 146.
[27]
Where
there are issues with interpretation, an applicant must object at the first
opportunity, where it is reasonable to expect an applicant to do so. Failing
to raise such an objection in a timely manner leads to a waiver of the
applicant’s s. 14 Charter right and the applicant’s ability to raise the
quality of interpretation as a ground for judicial review.
[28]
The
applicant claims that because the translation was not continuous at a certain
point in the hearing, there was a breach in both the duty of fairness owed to
him and his s. 14 Charter right. Yet, neither the applicant nor his counsel raised
an objection to the quality of the interpretation during the hearing. No
objection was raised during the following time period when his counsel was
preparing his application for leave and judicial review. The application for
leave to bring the judicial review raised no concern with the quality of the
interpretation and neither did his memorandum of fact and law. It was only
when the applicant filed his further memorandum of fact and law that he raised
this complaint for the first time.
[29]
The
applicant waived his s. 14 Charter right and his right to procedural fairness
by not objecting to the quality of interpretation at the hearing, and not until
this late stage in the court proceedings. He is therefore precluded from
raising the issue of translation as a ground for judicial review.
[30]
In any
event, the applicant complains that the translation was not continuous because
the Board member asked him if he could proceed in English and did. Again,
instead of objecting, the applicant acquiesced by answering in English. What
the applicant fails to point out is that this brief break in continuity
occurred near the end of the hearing. While it appears from the transcript
that there was some confusion with the exchange in English, it appears to have
been sorted out with the assistance of the applicant’s counsel. Moreover, the
part of the hearing when the Board member addressed the applicant directly in
English was short. The applicant has not asserted that, overall, the quality
of interpretation was inadequate. Instead, his concern is with the translation
of a very small portion of the hearing.
[31]
This is
not a translation error of the nature contemplated by the Federal Court of
Appeal in Mohammadian where the ability of the claimant to communicate
through the interpreter was in question. The general standard for
interpretation has not been breached in this case, nor has the applicant’s s.
14 Charter right or the duty of procedural fairness. He has failed to
establish that he was unable to understand the interpretation or that he could
not express himself through the interpreter. In the circumstances of this
case, there is no error of law pertaining to the question of interpretation.
C- Fair hearing
[32]
The
applicant claims that there was a breach in natural justice in the way in which
the Board conducted the hearing. He asserts that he was prevented from
presenting his case because the Board member interrupted him in two areas of
questioning.
[33]
First, the
applicant claims that he was not permitted to give all of his reasons as to why
he did not make a refugee claim in Portugal.
In his affidavit, he explains that when asked why he did not make a refugee
claim in Portugal, he said he had three to four
reasons. One was that he did not understand the language; the second was that
he did not know where to go, how the refugee system worked in Portugal. After the applicant had
given this second reason, the Board member asked: “May I move on, sir? Thank
you” (T.R., p. 15).
[34]
The
applicant claims that, had he been permitted to continue, “I was going to say
that my boyfriend took me there. My boyfriend wanted to leave to another
country for business. But I did not get to say this.” (A.R., p. 9, para. 5).
[35]
The
applicant also claims that he was not permitted to give a full answer when
asked why he did not indicate his sexual orientation when he made his refugee
claim at the airport. He testified that he was afraid, and had never been
handcuffed or put in jail before. In his affidavit, the applicant claims that
he was then cut off and interrupted, and was unable to add that in his country,
when a person is handcuffed and put in jail, it is usually because that person
has committed a crime (A.R., p. 9, para. 6).
[36]
A tribunal
fails to observe the principles of natural justice when there are, for example,
constant interruption, gross interference with the presentation of an
applicant’s case, insensitivity to an applicant’s particular circumstances,
disinterest in the claim and misstatement or ignorance of evidence: see Reginald
v. Canada (MCI), 2002 FCT 568, [2002] 4 F.C. 523; Kumar v. Canada
(MEI), [1988] 2 F.C. 14, 81 N.R. 157; Iossifov v. Canada (MEI),
[1993] 71 F.T.R. 28, 45 A.C.W.S. (3d) 728.
[37]
The
applicant’s complaints in this case are distinguishable from those that require
the Court’s intervention. The applicant has only presented two examples of
what he claims to be interruptions or cut-offs. These two examples are a far
cry from the situations of constant interruption and gross interference with
the presentation of an applicant’s case as seen in Reginald and Kumar.
The transcript shows that the applicant was given ample opportunity to make his
case and to provide explanations. There has been no denial of natural justice
that would justify intervention by this Court.
[38]
Moreover,
the applicant’s after-the-fact submissions about what he would have said at the
hearing are purely speculative. Looking back on the answers he gave at the
hearing, it is likely that he would have wished to have provided different or
more thorough responses. It is inappropriate for the applicant to supplement
the answers he gave at the hearing with his written submissions at this point
in the judicial review process.
D- Bias
[39]
Finally,
the applicant claims that the Board member’s statement “I’ve got to tell you
right now I’m not – I don’t get the feeling you’re gay” (T.R., p. 49) gives
rise to a reasonable apprehension of bias. The applicant claims that this
statement constitutes a “final conclusion” indicating that the Board member had
made up his mind before all the evidence was submitted.
[40]
The test
for bias in an independent adjudicative tribunal, such as the IRB, is whether a
reasonable person, being reasonably informed of the facts and viewing the
matter realistically and practically and having thought it through, would think
it more likely than not that the tribunal is biased: see Committee for Justice
and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 at pp.
394-395; Ahumada v. Canada (Minister of Citizenship and Immigration),
2001 FCA 97 at para.19, [2001] 3 F.C. 605. The grounds for apprehension of
bias must be substantial.
[41]
A careful
reading of the transcript shows that this statement was an expression of the
Board member’s desire to address this issue and an invitation to the applicant
to respond by way of an explanation. The applicant’s assertion that the Board
member had made up his mind before all the evidence was submitted is
unfounded. While the Board member’s statement came near the end of the
hearing, the applicant had the opportunity to respond to the statement and he
did. After the exchange on this issue, the Board asked questions and heard
submissions from the applicant’s counsel.
[42]
Further,
and despite the applicant’s assertions to the contrary, this is not a situation
of apprehension of bias like in Santos v. Canada (MCI), 2006 FC
1476, 153 A.C.W.S. (3d) 1211. In that decision, the Board member’s statements
were so detrimental to the applicant’s claim that the respondent conceded that
the statements about the applicant’s sexual orientation and generally were
“unfortunate” and “insensitive”. The quoted portions of the transcript not
only reveal a “closed mind” and a “mood of impatience” on the Board member’s
part but the Court went on to find that the member’s views were gravely
prejudicial to the refugee claim and that it was reasonable to expect that the
member’s dismissive approach impacted on his determination of the applicant’s
credibility. While the applicant asserts that the application for judicial review
was successful only because the Board member had decided the claim before
hearing all of the evidence, Santos
is distinguishable from this case because of the serious nature and detrimental
effect of the member’s comments and findings.
[43]
In the
present case, any reasonably informed person viewing the matter realistically
and practically would reasonably conclude that, despite this statement, the
Board member would be able to decide the claim fairly. There exist no
substantial grounds for apprehension of bias. Moreover, the fact that the
applicant and his lawyer failed to object at the hearing amounts to an implied
waiver of the right to raise this issue at the judicial review stage: Acuna
v. Canada (MCI), 2006 FC 1222, at paras. 34-36, [2002] 303 F.T.R. 40.
[44]
For all of
these reasons, this application for judicial review is dismissed. No questions
of general importance were proposed for certification, and none will be
certified.
ORDER
THIS COURT ORDERS that the application for judicial
review is dismissed. No question is certified.
"Yves
de Montigny"
Email this Content