Docket: IMM-4245-16
Citation:
2017 FC 497
Ottawa, Ontario, May 12, 2017
PRESENT: The
Honourable Madam Justice McVeigh
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BETWEEN:
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SENTAYEHU
GETACHEW GEBREMEDHIN
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Applicant
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and
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THE MINISTER OF
IMMIGRATION, REFUGEES AND CITIZENSHIP
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Respondent
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JUDGMENT AND REASONS
I.
Introduction
[1]
Sentayehu Getachew Gebremedhin [the Applicant]
claimed refugee status in Canada on the grounds of her political opinions
expressed in both Ethiopia and here in Canada. The Applicant had her refugee
claim dismissed first by the Refugee Protection Division [RPD], on May 2, 2016,
and then by the Refugee Appeal Division [RAD], dated September 22, 2016. For
the reasons that follow, I would dismiss this application for judicial review
of the RAD decision.
II.
Background
[2]
The Applicant is a citizen of the Democratic
Republic of Ethiopia. She was a competitive runner in Ethiopia. She arrived in
Canada on November 12, 2015, and claimed refugee status on November 30, 2015.
She fears persecution in Ethiopia because of her Amharic ethnicity, her refusal
to support or join the ruling party, and her support for the Semayawi Party
[the Blue Party].
[3]
In 2004, the Applicant’s father was arrested and
imprisoned. It is alleged he was incarcerated due to his political activities.
Shortly after his release he passed away.
[4]
On April 22, 2015, the Applicant was returning
home from a running competition in Germany. As she and her husband walked home
from the airport they were stopped by police. One officer struck the Applicant
and her husband was arrested. The following day he was released on bail after
she provided the police with details of her travels to Germany.
[5]
The Applicant then obtained a Canadian visa on
the pretense of running a marathon here. The RPD accepted that she faced
discrimination in her athletic career but went on to conclude that this did not
amount to persecution. It found that she embellished her political activity in
Ethiopia. It found that she had participated in political activities here in
Canada but that these were at best low level and would not come to the
attention of Ethiopian authorities.
[6]
The RPD found that the Applicant’s story after
her departure from Ethiopia was inconsistent and that the incident causing her
to flee was not credible. She appealed the RPD’s negative determination to the
RAD.
[7]
The RAD admitted two new pieces of evidence that
were not available before the RPD. The first piece of evidence was regarding twelve
translation errors during the RPD hearing. The second piece of evidence was
regarding a walk and lecture by Mr. Obang Metho, an Ethiopian human rights
activist, dated May 7, 2016, in which the Applicant said she had participated in
since the RPD hearing.
[8]
Upon reviewing the RPD record and accepting the
new evidence, the RAD affirmed the RPD decision. It reviewed each translation
error in turn, concluding that they did not substantively impact the RPD’s
determination. It found that on a balance of probabilities the Applicant was
not credible and that her allegations lacked veracity. It further found that
her sur place claim in Canada failed as she had failed to demonstrate that her
political involvement in Canada would have been brought to the attention of
Ethiopian authorities. As a result, the RAD confirmed the RPD decision and
dismissed the appeal.
III.
Issues
[9]
The Applicant raises the following issues on
judicial review:
- Did the RAD err
in law by applying the wrong test in determining that the Applicant’s
right to procedural fairness was not breached by reason of inadequate
interpreting at her hearing?
- Did the RAD err in law in finding that the Applicant was not a
refugee sur place?
IV.
Standard of Review
[10]
The decision in its entirety should be reviewed
on a standard of reasonableness (Dunsmuir v New Brunswick, 2008 SCC 9 [Dunsmuir];
Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12 [Khosa]).
The Federal Court of Appeal found that the RAD is to carry out its own analysis
of the record and intervene when the RPD is wrong in law, in fact, or in fact
and law (Canada (Minister of Citizenship and Immigration) v Huruglica,
2016 FCA 93 [Huruglica]).
[11]
The RAD reviews issues of procedural fairness
before the RPD on a correctness standard. The Respondent accurately points out
that that the Federal Court conducts judicial review of this correctness
analysis on a reasonableness standard (Zhang v Canada (Minister of
Citizenship and Immigration), 2015 FC 1031 at paras 27-38).
V.
Analysis
A.
Translation Errors
[12]
The Applicant argues that the RAD should have
found a breach of procedural fairness given the many translation errors before
the RPD. She submits that the RAD asked itself the wrong question when it
determined that the interpretation errors did not “significantly
influence the RPD’s overall credibility findings”. As a result, the
Applicant submits that it was an error for the RAD to conclude that the
interpreter’s errors did not overcome the overall or totality of adverse
credibility findings. The Applicant argued that the fact that the errors
influenced some of the RPD’s credibility findings in some way is sufficient to
find a breach of procedural fairness.
[13]
Interpreters do not need to be perfect. They
must be continuous, precise, competent, impartial and contemporaneous (Mohammadian
v Canada (Minister of Citizenship and Immigration), 2001 FCA 191 at paras 4-6
and 16; Batres v Canada (Minister of Citizenship and Immigration), 2013
FC 981 at paras 10-11 [Batres]).
[14]
Furthermore, many decisions of this Court have
held that errors of interpretation must be material to the RPD’s credibility
findings and do not need to demonstrate actual prejudice in the decision (Batres,
above, at paras 12-13). Although the Applicant does not need to demonstrate
actual prejudice, she must demonstrate that the translation errors were
serious, non-trivial, that they affected her ability to answer questions, and
that they were material to the tribunal’s findings. Anything lower would demand
perfection (Siddiqui v Canada (Minister of Citizenship and Immigration),
2015 FC 1028 at paras 71-72 [Siddiqui]; Bidgoli v Canada (Minister of
Citizenship and Immigration), 2015 FC 235 [Bidgoli]).
[15]
The Respondent argues that more than two hours
of translation resulted in only twelve errors, which were not significant and
did not influence the RPD’s decision.
[16]
In both Siddiqui and Bidgoli, the
Courts were reviewing RPD decisions and not RAD decisions. In this case the RAD
addressed in detail whether the translation errors could overcome the
credibility findings of the RPD and found the errors were not significant or
did not influence the RPD decision. In doing this the RAD did not have to
specifically decide whether the error needed to be material or any of the other
standards used such as serious and non-trivial. The RAD assessed whether the
few errors identified allowed the Applicant to tell her story and if the errors
as a whole influenced the overall credibility findings.
[17]
The RAD considered each error in turn. They
listened to the hearing recording to ensure they had the context in which the
particular translation error was made. The RAD found that although minor errors
were made, those errors would not overcome the totality of adverse credibility
findings made by the RPD. The adverse findings were unaffected by any error of
translation. The RAD therefore made no mistake in finding that the translation
errors at the RPD hearing did not amount to a breach of procedural fairness.
[18]
The RAD was very thorough when making the
determination that the RPD did not breach procedural fairness. The effect of
the translation errors on the whole of the RPD’s findings when assessed against
the whole decision did not make the hearing procedurally unfair. In addition the
RAD’s own assessment with the correct translations was reasonable. The
translation errors were not at the heart of the inconsistencies and points of
concern the RPD had regarding the Applicant’s credibility.
[19]
I find the RAD was reasonable in its assessment
of the translation errors.
B.
Sur Place
[20]
The Applicant goes on to argue that the RAD
erred in their assessment of her sur place claim in Canada. The RAD should not
have based its decision on her “profile” which
was agreed by the parties to be a low profile. She argues that the documentary
evidence does not support that you must be a high profile person to come to the
attention of Ethiopians officials. Furthermore, she argued that there was no
documentary evidence to support that any particular profile was needed to
attract persecution.
[21]
This same argument was put before the RAD and is
contained in the decision at paragraph 51:
The Appellant submits that the RPD’s findings
regarding her sur place claim are wrong because they are not
supported by the independent documentary evidence … that the National
documentation Package (NPD) indicates that expatriates of Ethiopia, with or without
a high profile, can be victims of government surveillance and mistreatment.
[22]
In answering this question the RAD found that the
Applicant had participated in various political activities in Canada but that
her knowledge of opposition activities were limited and she was at best a low
level supporter who had not and will not come to the attention of Ethiopian
authorities. At paragraph 54 of the RAD decision, it references a Response to
Information request that indicates any person who is actively involved in
Ethiopian politics or political objectives or is anti-government is subject to
scrutiny and could be detained. As well, the RAD looked at the new evidence
that there was an event sponsored by Unity for Human Rights and Democracy on
May 7, 2016, that included a 2 km walk and lecture by human rights activist
Obang Metho. The Applicant could not be identified in the photos she provided. She
did not explain whether she participated in both the run and the lecture. The
RAD found she did not have a high profile in Canada with an opposition party
and that her political activities and knowledge were limited. For that reason,
the RAD found at paragraph 56 that “the Appellant has
not or will not come to the attention of the Ethiopian authorities nor would
she if she were to return to Ethiopia.”
[23]
The correct test for a sur place claim was
outlined by Justice Tremblay-Lamer in Ngongo v Canada (Citizenship and
Immigration), [1999] FCJ No 1627 [Ngongo]. In Ngongo,
above, at paragraph 23, Justice Tremblay-Lamer discusses sur place claims:
… The only relevant question is whether
activities abroad might give rise to a negative reaction on the part of the
authorities and thus a reasonable chance of persecution in the event of return.
[24]
In the RPD decision at paragraphs 20 to 22, The
Applicant’s activities in Canada were weighed against the documentary evidence.
The RPD concluded that:
[w]hile there is some evidence that
indicates opponents are monitored, the Panel finds that given the level of
involvement of the claimant (limited) and political knowledge of the claimant (limited)
it is unlikely that her activities will come to the attention of the Ethiopian
authorities if she were to return. Furthermore, her evidence that her husband
remains in the family home and has not been questioned on her activities
suggests that no one is aware of her political involvement in Canada.
[25]
The RPD concludes using some of the same
language in summary as the RAD which is “she is not a
high profile opponent” and finds there is “…no
credible evidence before the Panel to suggest her activities have come to the
attention of the Ethiopian officials.”
[26]
I find the RAD’s assessment to be reasonable and
answers at paragraphs 50-56 the question set out in Ngongo. The RAD also
assessed the new evidence submitted by the Applicant finding that the totality
of the evidence did not support her claim. The possibility of the Applicant
having a sur place claim was thoroughly canvased and though “high level” or “low level”
profile was not used in the documentary evidence it is clear that the RAD and
the RPD determined that her activities in Canada were such that she would not
come to the attention of Ethiopian officials. The record when read as a whole
shows that the use of those terms in conclusion was supported by evidence
applied to the facts in the analysis of the claim and does not make the
decision unreasonable.
[27]
The Applicant also argued that the RAD erred by
imposing too high of a burden on her. She argued that the RAD required she
prove that her political activities would have come to the attention of Ethiopian
authorities on a balance of probabilities. However, only a serious possibility
of persecution must be proven to establish a refugee claim under section 96 of
the Immigration and Refugee Protection Act, SC 2001, c 27 [the Act]. Her
argument is that the RAD therefore subjected her to a more onerous burden of
proof than required and the decision should therefore be sent back for
redetermination.
[28]
The legal threshold for a sur place claim should
not be confused with the standard of proof. In order to show a well-founded
fear of persecution under section 96 of the Act, an applicant must establish
that there is a “reasonable chance” or “serious possibility” of persecution (Adjei v
Canada (Minister of Employment and Immigration), [1989] 2 FC 680 (FCA) at
paras 5-8; Sebastio v Canada (Minister of Citizenship and Immigration),
2016 FC 803 at paras 13-14 [Sebastio]). The standard of proof for facts
on which a claimant relies is a balance of probabilities. However, once proven,
the legal threshold to demonstrate persecution is only a “serious possibility”.
[29]
The RAD assessed whether the Applicant’s
activities in Canada would come to the attention of the Ethiopian authorities.
This is a factual determination which the RAD made on a balance of
probabilities. This is not the same as replacing the legal threshold of “serious possibility” of persecution (Sebastio,
above, at paras 14-15). Once the RAD made its factual determinations on a
balance of probabilities, it then looked at the totality of evidence and
determined that the Applicant did not face a serious possibility of persecution.
When the decision is assessed as a whole, the RAD did not impose a higher legal
threshold than was required. The RAD found there was no basis for a sur place
claim.
[30]
Reasonableness requires that the decision must
exhibit justification, transparency and intelligibility within the decision
making process and also the decision must be within the range of possible,
acceptable outcomes, defensible in fact and law (Dunsmuir, above; Khosa,
above).
[31]
I find that the RAD did not error in this
assessment as the determination was reasonable and as a result, the judicial
review application is dismissed.
[32]
No question for certification was presented and
none arose.
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