Docket:
IMM-1613-13
Citation: 2013 FC 1022
Ottawa, Ontario, this 10th
day of October 2013
PRESENT: The Honourable Mr. Justice Roy
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BETWEEN:
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SEGU NILABDEEN Mohamed Rizlan
MOHAMMED RAFEEK Fathima Fowmida
MOHAMED RIZLAN Fathima Reeha
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Applicants
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And
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THE MINISTER OF CITIZENSHIP
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AND IMMIGRATION
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Respondent
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REASONS FOR ORDER AND ORDER
[1]
CONSIDERING the judicial
review application made pursuant to section 72 of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the “Act”) with respect to a
decision of the Refugee Protection Division of the Immigration and Refugee
Board of Canada (the “Board”);
[2]
CONSIDERING that
the said decision denied the refugee protection claim made by the applicants
pursuant to sections 96 and 97 of the Act;
[3]
CONSIDERING that
the applicants raise two distinct issues:
(1) Was
the interpretation available at the Board’s hearing inadequate such that a
denial of a fair hearing occurred?
(2) Did
the Board err in finding that the applicants were not credible?
[4]
UPON hearing the
parties and reviewing the record, I have come to the conclusion that this
judicial review application has to be dismissed. My reasons for such a
determination follow.
[5]
The applicants are a family of three that
arrived in Canada in May 2011. The principal applicant, Mohamed Rizlan Segu
Nilabdeen, the father, testified on his claim that he and his family needed the
protection afforded by sections 96 and 97 of the Act. It is not necessary
to review the facts other than to say that the principal applicant (the
“applicant”) claimed that his political activities in Sri Lanka, and in
particular his support for the United National Party [UNP], resulted in acts of
violence against him in late 2010 and early 2011. Following the second attack,
in February 2011, the family flew to Canada, having already a visa application
to Canada in process.
[6]
The matter proceeded before the Board on the
basis of whether or not the applicant was credible. As put in the decision of
the Board, there was agreement that the matter would proceed on that basis. One
can read at paragraph 14 of the decision:
Prior
to the questioning, the panel and counsel agreed to focus on the issue of
credibility because of the many human rights reports in the evidence that
establish Sri Lanka as a country where politically motivated violence could
plausibly occur against an opposition party activist, without an expectation of
police protection.
[7]
In my view, the credibility findings are
significant and are reasonable.
[8]
Thus, the applicant seemed to have been confused
as to when the two attacks would have taken place. Was it in January or in
February 2011? And that confusion takes place with respect to the second of
only two attacks, the second one prompting the applicants to flee their country
two months later. One would expect a clear recollection of such momentous
event.
[9]
In order to support his contention that he was
politically active, the applicant had made the allegation that he was a public
relations officer for the UNP. Without any explanation, he indicated in his
application for a Canadian visa that he had never held a position of authority
in a political party. Indicating that the omission is because he had forgotten
appears rather implausible, especially in view of the fact that the political
involvement was central to his claim for refugee status. It would also appear
that the applicant left out of his narrative in his Personal Information Form
[PIF] what he claimed were very serious statements made by the attackers. Once
again, the applicant indicated that he had forgotten. As pointed out by the
Board, the PIF was signed some four months after the applicant had arrived in Canada. Much time was taken and it is not unreasonable to expect that such important
document will be accurate, especially when the document is not prepared in a
hurried fashion.
[10]
Furthermore, the applicant offered in support of
his contention a political membership card and a testimonial letter. Both were
purportedly signed by the same party official. However, when the Board pointed
out to the applicant that the signatures on the document were completely
different, the applicant was incapable of providing an explanation. The Board
also found that the applicant obtained a visa in the United Kingdom in October 2003
under a different name. However, this was not disclosed in spite of the fact
that the PIF is clear that such information must be disclosed. The applicant
did not dispute that his identity was used to obtain a visa. The only
explanation he gave was that he wanted to forget that information. Indeed, he
testified that he never actually travelled to the United Kingdom which is odd
in view of the fact that the said visa, which was to expire in June of 2009,
was extended to April 2014. The evidence before the Board indicates that an
extension is granted when demonstration is made to the authorities that the
individual has been attending school in the United Kingdom. The applicant did
not have an explanation for why the visa in the United Kingdom was extended. The
nebulous and unexplained circumstances around a visa obtained from the United Kingdom could certainly be used to examine and assess the credibility of the
principal applicant.
[11]
My colleague Justice Donald J. Rennie provided a
very useful summary of principles governing the assessment of credibility in
refugee claims in Cooper v The Minister of Citizenship and Immigration,
2012 FC 118, at paragraph 4. Suffice it to say that, in my view, the implausibilities
and inconsistencies found in the testimony of the applicant support a negative
finding of credibility. The Board did not conduct an examination of the
testimony that could be called microscopic leading to conclusions about claims
that are irrelevant or peripheral. The inconsistencies and contradictions were
not minor or peripheral, and their cumulative effect can, in my estimation,
support an overall finding of lack of credibility. These findings were in my
view reasonable under the circumstances.
[12]
As for the issue of the quality of the
interpretation, the applicants are right that the standard that is applicable
in the circumstances is that which is described in Mohammadian v Canada (Minister of Citizenship and Immigration), [2001] 4 FC 85 (FCA). The
interpretation provided to applicants must be continuous, precise, competent,
impartial and contemporaneous. Furthermore, there is no need to prove an actual
prejudice. Conversely, it is also well established that the interpretation does
not require perfection. Indeed, the following passages taken from the Court of
Appeal’s decision in Mohammadian are relevant to the determination of
the issue that must take place in this case:
[17] .
. . If the appellant’s belated complaint about the quality of the
interpretation is accepted, the important work of the Refugee Division in
hearing and disposing of Convention refugee claims in a timely fashion would
become rather more difficult. The Refugee Division is called upon yearly to
dispose of an increasing volume of Convention refugee claims, a high percentage
of which are of individuals whose native language is neither of Canada’s official languages. It must surely be in the interests of the individual and of
the public that refugee claims be processed as soon as is practicable. Neither
the individual nor the public interest is served when the refugee determination
process is unnecessarily delayed, provided acceptable safeguards are adhered to
in order to prevent a breach of the section 14 right.
Later, at paragraph
19, the Court concludes:
. . . When his
conduct during the whole of the third sitting and for some time afterward is
weighed with his undoubted knowledge of his right, it is difficult to construe
that conduct as other than a clear indication that the quality of
interpretation was satisfactory to him during the hearing itself. In my view,
Pelletier J. did not err in determining that the appellant had waived his right
under section 14 of the Charter by failing to object to the quality of
the interpretation at the first opportunity during the hearing into his claim
for refugee status.
[13]
As I look at the evidence in this case, I am
convinced that the same type of circumstances that has happened in the case of Mohammadian
were present in this case. Indeed, the applicant claimed to have a working
knowledge of the English language. The concerns raised about the first
interpreter were addressed squarely by the Board and a different interpreter
was brought in. The applicant indicated that he understood the new interpreter
when asked specifically by the Board. As issues arose during the hearing, they
were addressed seemingly to the satisfaction of counsel for the applicants. No
one complained at the hearing.
[14]
I have myself reviewed the transcript of the
hearing and, to the extent possible, I was satisfied that the interpretation
was continuous, precise, competent, impartial and contemporaneous, although
certainly not perfect. On a number of occasions, the interpreter, who was on a
telephone, had to interrupt and ask for sentences to be repeated. That is not
surprising. The fact that the interpreter was operating using a telephone was a
source of most of the difficulties that were encountered. Another difficulty
was that the persons present seemed, at times, to forget that an interpreter
had to perform his duty. Fortunately, the interpreter intervened to allow for a
proper interpretation. My reading of the transcript confirmed that nothing of
importance could have been lost. Furthermore, the applicant did not raise any
issue with the interpretation. It is now raised ex post facto, that
there were interruptions in the interpretation. That does not suffice to
conclude that the right to competent interpretation has been infringed.
[15]
As a result, the application for judicial review
is dismissed. The parties agreed that this is not a matter for certification. I
share that view.
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