Date: 20241129
Docket: IMM-6223-23
Citation: 2024 FC 1927
Calgary, Alberta, November 29, 2024
PRESENT: Justice Andrew D. Little
BETWEEN: |
TEWODROS GEBREYESUS MEKONNEN |
Applicant |
and |
THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent |
JUDGMENT AND REASONS
[1] The applicant requested judicial review of a decision by a migration officer dated March 23, 2023, refusing the applicant’s request for protection under paragraph 139(e) and sections 145 and 147 of the Immigration and Refugee Protection Regulations, SOR/2002-227 (the “IRPR”
) and section 96 of the Immigration and Refugee Protection Act, SC 2001, c 27 (the “IRPA”
).
[2] The applicant submitted that that he was denied procedural fairness due to inadequate translation. He also submitted that the officer’s decision was unreasonable, applying the principles in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 563.
[3] For the reasons below, the application is allowed.
I. Facts and Events Leading to this Application
[4] The applicant is a citizen of Ethiopia. He currently lives in Uganda. He speaks Amharic fluently and English “moderately well”
.
[5] By application dated November 13, 2020, the applicant sought protection in Canada under the IRPR. He sought to include his spouse and children in his application. His fear of persecution was founded on his political beliefs and activities, including his published political cartoons that were critical of the government of Ethiopia, and which had resulted in harassment, threats, and warnings from government agents.
[6] On March 21, 2023, the migration officer interviewed the applicant in Kampala, Uganda. During the interview, the applicant was assisted by an interpreter fluent in English and Amharic.
[7] On March 22, 2023, the day after the interview, the officer submitted notes into the Global Case Management System (“GCMS”
). The notes included questions asked and answers given during the interview, and an eligibility decision.
[8] By letter dated March 23, 2023, the officer refused the applicant’s request for protection. The officer determined that the applicant did not meet the requirements of the Convention Refugee Abroad, Country of Asylum, or Source Country classes under paragraph 139(1)(e) of the IRPR. The officer also found that the applicant had not been truthful and forthcoming with the information provided in support of his application, as required by subsection 16(1) of the IRPA.
II. Was the Applicant Deprived of Procedural Fairness?
[9] When a procedural fairness question arises on an application for judicial review, the Court determines whether the procedure used by the decision maker was fair, having regard to all the circumstances including the nature of the substantive rights involved and the consequences for the individual(s) affected. While technically no standard of review applies, the Court’s review exercise is akin to correctness: Hussey v. Bell Mobility Inc, 2022 FCA 95, at para 24; Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196, [2021] 1 FCR 271, at para 35; Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, [2019] 1 FCR 121, at paras 54-55.
[10] The applicant’s procedural fairness concern was adequate translation. He filed two affidavits on this application, which stated that some of the answers he gave were not fully reflected in the officer’s GCMS notes. After reading the officer’s interview notes, the applicant concluded that some of the questions he was asked by the officer at the interview were not fully explained to him and some of the answers he gave were not fully relayed to the officer by the interpreter. He gave three examples. In his argument to the Court, the applicant submitted that the translation issues were consequential because they gave rise to key negative credibility findings in the officer’s decision. The applicant submitted that for two of the examples, the interpretation concern was that he had provided information himself, before being prompted by the officer.
[11] The respondent submitted that the applicant did not establish a breach of procedural fairness because the applicant had not shown he was unable to tell the story or that any errors in the interpretation of his responses during his interview were material to the assessment of credibility. The respondent noted that the onus was on the applicant and emphasized the applicant’s “moderate”
English language abilities as disclosed in the record (allowing him to ensure the translation was correct during the interview). The respondent argued that each of the issues identified by the officer was put to the applicant during the interview, allowing him an opportunity to respond. The respondent noted the wider context of the details in the applicant’s narrative filed with his claim for protection. According to the respondent, the applicant’s affidavit evidence provided new information that was not filed with his claim for protection.
A. Evidence on this Judicial Review Application
[12] The contents of the applicant’s affidavits filed on this application, which are substantively the same, are new evidence. Usually, the evidentiary record before the reviewing court is restricted to the evidentiary record that was before the administrative decision maker. However, the Court will consider the applicant’s affidavits in this case under an exception to the usual rule, because they concern possible defects that cannot be found in the evidentiary record of the administrative decision-maker going to the procedural fairness of the interview: Sharma v. Canada (Attorney General), 2018 FCA 48, at para 8; Association of Universities and Colleges of Canada v Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, at paras 19-20; Singh v. Canada (Citizenship and Immigration), 2024 FC 158, at paras 13-14.
[13] The respondent did not take any steps in this proceeding to cast doubt on the contents of the applicant’s two affidavits filed on this application, either through cross-examination or through a responding affidavit from the officer.
[14] While GCMS entries may be considered business records under the common law principle from Ares v. Venner, [1970] S.C.R. 608, 1970 CanLII 5, they are not admissible for the truth of their contents in all contexts: see Cabral v. Canada (Citizenship and Immigration), 2018 FCA 4, at para 28. In Cabral, the Federal Court of Appeal distinguished its case from cases like the present one, in which an investigation is being conducted, evidence is being taken and there is no collateral guarantee of authenticity of what is recorded. In cases like the present, the Court of Appeal observed that, for the admissibility of evidence purposes, a declarant (i.e., the officer) may be motivated to record the interview in a manner that buttresses his or her decision. As such, the substance of the GCMS notes are not necessarily admissible in this Court for the truth of their contents. See Divya v. Canada (Citizenship and Immigration), 2022 FC 620, at paras 18-20; Ali v. Canada (Citizenship and Immigration), 2021 FC 731, at para 36. Additional evidence, such as a satisfactory supporting affidavit from the officer, would be sufficient to allow the notes to be treated as evidence for the truth of their contents. The respondent did not file such an affidavit.
B. Analysis
[15] The Federal Court of Appeal in Mohammadian v Canada (Citizenship and Immigration), 2001 FCA 191, [2001] 4 FC 85, found that “interpretation provided to applicants before the Refugee Division must be continuous, precise, competent, impartial and contemporaneous”
: Mohammadian, at para 4. The standard of interpretation is high, but does not need to be perfect; the key is whether there was linguistic understanding.
[16] A refugee claimant alleging inadequate translation is not required to demonstrate actual prejudice: Mohammadian, at para 4. However, the applicant must show that the interpretation errors were consequential (i.e., they must be real, significant, serious or non-trivial), connected to the decision maker’s findings and related to the applicant’s ability to answer questions or present the refugee claim: Talwar v. Canada (Citizenship and Immigration), 2023 FC 200, at para 18; Paulo v. Canada (Citizenship and Immigration), 2020 FC 990, at paras 28-29, 33 and 41; XY v. Canada (Citizenship and Immigration), 2020 FC 39, at paras 32-33; Gebremedhin v. Canada (Immigration, Refugees and Citizenship), 2017 FC 497, at para 14.
[17] In this case, I conclude that the applicant was deprived of procedural fairness, owing to several factors that include either incomplete translation during the interview or the officer failing to record the applicant’s answers as translated, as well as the officer’s failure to account for information in the applicant’s original form claiming protection (which I will call his original narrative). These factors significantly affected the officer’s analysis and decision, particularly on adverse credibility findings.
[18] The applicant’s affidavits provided three examples of translation concerns. I will consider them in turn.
[19] This is the applicant’s first example:
One example is when the officer asked me why the government did not shut down my business. I recall explaining to the officer that the government does not usually shut down businesses they disagree with directly. Instead, the government will put all sorts of pressure on the business owner and the employees such as threatening, harassing and sometimes jailing them so that the business owner and the employees will gradually desert the business out of fear after which the business will naturally collapse. I told the officer that that was exactly what happened to my business, which gradually but inevitably went out operation after I fled from Ethiopia.
[20] The officer’s GCMS entry noted that the applicant’s political cartoons would normally result in “very severe sanctions taken against him including imprisonment, the closing of his business and the revoking of his business license”
. The officer asked why the government had not shut down his business and revoked his business licence. The GCMS record of the interview indicated the applicant initially had no answer to explain why his business continued to operate for two years, and then advised that his employees warned him about government agents visiting the shop (which led to his departure from the country). The officer found that the applicant did not answer the question put to him. The officer also found the applicant’s explanation of why the government did not shut down the applicant’s business was not credible given the “severity of the infraction that he allegedly made against the government”
.
[21] The applicant’s affidavits on this application advised that he provided an answer to the officer’s question about why the government did not shut down the applicant’s business – which was that the government would put pressure on employees and effectively let the business die while the owner (the applicant) was imprisoned. Whether the translation of the applicant’s answer and explanation was incomplete or the officer did not include the explanation in the GCMS notes, the information in the applicant’s affidavits was significant to the officer’s credibility finding. The applicant’s answer and explanation at the interview were also contained in his original narrative, which the officer either did not take into account or considered irrelevant.
[22] The applicant’s second example was:
…when the officer asked me whether there were immigration hearings before I was deported from the United States of America. I also remember answering that I don’t remember the exact dates of the hearings but that I attended hearings three times while in detention in the United States of America.
[23] The GCMS notes stated that the applicant first advised that he was “just deported”
from the United States without referring to a hearing. When the officer pointed out that it was not plausible because asylum seekers are given hearings in the United States, the GCMS notes found that the applicant “changed his story”
to admit that his hearing was held in September 2015. This led the officer to make a negative credibility finding against the applicant.
[24] The applicant testified that he told the officer about three hearings, something not reflected in the GCMS notes. Whether this omission resulted from a translation issue or a failure by the officer to record it, this evidence was important to the officer’s reasoning and adverse credibility finding.
[25] It is possible that the existence of a hearing, or three hearings, is something that an interviewee with the applicant’s knowledge of English might notice and an officer would record in the GCMS. However, two other points temper that argument in this case. First, although the applicant’s original narrative does not expressly mention hearings, it advised that he was detained in the United States for 10 months from November 2014 to September 2015. This length of time in detention is inconsistent with the underlying premise of the officer’s question that the phrase “just deported”
implied that the applicant was quickly removed from the United States without a hearing. Second, according to the officer’s GCMS notes, after the applicant told the officer he was simply deported, the officer told him that this was not plausible as asylum seekers detained as long as he was are given a hearing in the United States to hear the merits of their case. However, elsewhere in the GCMS notes, the officer recorded that the applicant advised that his case was not heard on the merits:
…SAYS IT WAS HELD IN SEPT 2015, AND WAS REFUSED. SAYS THE MERITS OF HIS CLAIM WERE NOT CONSIDERED. THE USA REFUSED HIS APPLICATION, DEPORTED HIM BACK TO ETHIOPIA IN SEPT 2015…
[26] The third example in applicant’s affidavit was the following:
… when the officer asked me why I was not arrested on arrival from the United States of America. I remember telling the officer that my passport was seized, and I was instructed to go straight from the airport and report to an immigration office outside the airport. I explained to the officer that I realized that I will be arrested at that office, refused to go there, and went into hiding instead.
[27] The GCMS notes stated that the applicant claimed he went into hiding after arrival back from the United States, but he did not state in his original narrative that he was detained on arrival at the airport nor that he was visited at home by security agents. The officer advised the applicant during the interview that this significantly weakened his claim for protection on political grounds. The GCMS notes state, twice, that the applicant “suddenly added”
that the officer at the airport took away his passport and ordered him to return to the office for questioning. The applicant advised that after leaving the airport, he had to move from place to place for two years to avoid detection. The officer faulted the applicant for not answering the officer’s question about why he was not arrested on arrival and did not advise about the security officers harassing him at home.
[28] The officer seems to have found fault with the applicant because he “suddenly added”
information at the interview. But once again, that information was already before the officer in the applicant’s original narrative:
The Ethiopian government took my passport and told me to go to the immigration office and see the officer but I knew it was going to be worse than ever so I didn’t appear. Instead I disappeared and sat at home unemployed and also changing different locations from where I used to live before.
[29] The applicant’s two affidavits filed on this application confirm that he advised the officer again at the interview that an officer at the airport seized his passport and told him to report to another office for questioning. The affidavits confirm his original narrative that he did not go to the other office (fearing arrest, he testified he told the officer), and went into hiding after that. The information in the applicant’s affidavits and in his original narrative address at least part of the officer’s question concerning why the applicant was not arrested or detained by the officer at the airport when his passport was taken away.
C. Conclusion on Procedural Fairness
[30] These procedural and evidentiary concerns undermine the fairness of the interview process. They call into question the credibility findings and overall decision reached by the officer. The applicant’s affidavit evidence on this application confirms that the applicant provided information during his interview that was either not translated for the officer or not recorded by the officer in the GCMS. In coming to findings, particularly on credibility, the officer placed considerable weight on omissions and on how the applicant provided information at the interview, rather than the substance of his answers. The officer compared the initial answers provided by the applicant with additional responses but did not recognize or account for all of the substance of the answers, nor the information in the applicant’s original narrative that corroborated and supported his interview answers.
III. Conclusion
[31] The officer’s decision must be set aside and the matter remitted for redetermination by another officer. In the circumstances, I will direct that the applicant be re-interviewed.
[32] Neither party proposed a question for certification and no question will be stated.
JUDGMENT in IMM-6223-23
THIS COURT’S JUDGMENT is that:
The application is allowed. The decision dated March 23, 2023, is set aside and the matter remitted for redetermination by another officer.
The Court directs that the applicant be re-interviewed.
No question is certified under paragraph 74(d) of the Immigration and Refugee Protection Act.
"Andrew D. Little"
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