TB3-08678

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : TB3-08678 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision March 26, 2014 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Lorne Waldman Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre REASONS AND DECISION [1] XXXX XXXX (the Appellant), a citizen of Turkey, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the decision of the RPD and refer the matter back for redetermination by a differently-constituted panel. DETERMINATION [2] This appeal is allowed. Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. Background [3] The Appellant alleged before the RPD that he is of Kurdish ethnicity. He claimed that he was active in Kurdish cultural and political activities, and, as a result, he was detained and abused by the Kurdish authorities. He fled Turkey on XXXX XXXX, 2013 with the help of an agent, and he arrived in Canada three days later. He made a refugee claim on May 22, 2013. [4] The Appellant's application for refugee protection was heard on July 22, 2013. By a decision of October 17, 2013, the RPD rejected the claim, citing numerous credibility concerns with the Appellant's evidence and concluding that he is neither a Convention refugee nor a person in need of protection. [5] The Appellant submits on appeal that he was provided with poor-quality interpretation, though he did not realize there were interpretation problems until after his claim was rejected. He argues that some of the RPD's credibility findings were based on wrongly-interpreted evidence, while other credibility findings were unreasonable. ANALYSIS Admissibility of Evidence Submitted on Appeal [6] According to the Appellant's Written Statement, he is "not seeking to introduce new evidence."1 Despite this, he has filed a new affidavit from an interpreter, which asserts that the quality of interpretation in his refugee hearing was poor, and much of this appeal relies upon that assertion. Although the Appellant has not complied with the RAD rules, which require that he provide a written statement indicating whether he is relying on any evidence referred to in Section 110(4) of IRPA,2 and a Memorandum explaining how that evidence meets the requirements of Section 110(4),3 the RAD will nevertheless consider the proposed new evidence. [7] Section 110(4) of IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. [8] The interpreter's affidavit submitted by the Appellant was created after the rejection of the Appellant's claim. Although its content relates to facts that existed before the rejection of the claim-that is, the interpretation in the refugee hearing-it was not reasonably available to the Appellant at that time, as no one in the hearing room other than the interpreter spoke both English and Kurdish and therefore could not detect the alleged interpretation errors. [9] The interpreter's affidavit meets the test set out in Section 110(4). This does not, however, require the RAD to admit the document into evidence without any further consideration. In Raza, the Federal Court of Appeal set out factors to be considered in assessing "new" evidence. While Raza predates the introduction of IRPA, Section 110(4), it is based on the very similar wording of Section 113(a). The Court held that new evidence should be considered for its credibility, relevance, newness, and materiality, in addition to any express statutory provisions.4 The RAD has therefore considered whether, and how, Raza is applicable to evidence presented in support of an appeal to the RAD. [10] The provisions of Section 110(4) relate largely to the timing of evidence, with the clear intention that the Appellant be permitted to present to the RAD only evidence that he could not have relied upon before the RPD, or could not reasonably have been expected to present to the RPD. The RAD has a different role than does a PRRA officer: the RAD is tasked with deciding whether the RPD's decision was in error, based on the record and in some situations based on new evidence. The PRRA officer assesses future risk based on new evidence. However, Section 110(4) is similar to Section 113(a) in that both intend to restrict the introduction of new evidence. While 113(a) may serve to mitigate the risk of wasteful and potentially abusive relitigation, 110(4) can reasonably be seen to have further purposes: to prevent the presentation of frivolous evidence in pursuit of an unmeritorious appeal, and perhaps even to prevent an Appellant from splitting his case by presenting some evidence to the RPD and withholding other evidence for presentation on appeal. [11] As the test in 110(4) is largely concerned with the timing of new evidence, it does not require an evaluation of the relevance or the quality of the evidence. A document that is irrelevant, immaterial, or lacking in credibility could pass the test set out in Section 110(4) if it arose after the rejection of the refugee claim, and yet it would not be evidence upon which the RAD, under Section 171(a.3) of IRPA, could properly rely in determining the appeal. This is despite the fact that the RAD is not bound by the legal and technical rules of evidence, pursuant to Section 171(a.2). It is therefore necessary for the RAD to undertake an analysis of the proposed new evidence-not just for its timeliness, which is largely the focus of Section 110(4)-but also for its evidentiary value. Even if the RAD would disregard Raza because it relates to a different section of IRPA, it would nevertheless be required to undertake an analysis of the proposed new evidence for characteristics including credibility, relevance, and materiality. In this context, it makes good sense for the RAD to apply a framework such as that set out in Raza; however, it is also appropriate for the RAD to consider whether each factor as set out in Raza is applicable to a RAD appeal. [12] Credibility: Section 171(a.3) of IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered "credible or trustworthy in the circumstances." As such, the credibility factor described in Raza is clearly applicable to new evidence before the RAD; at worst, Section 171(a.3) renders Raza's credibility factor redundant. [13] Relevance: While IRPA makes specific reference to the credibility of evidence received by the RAD, there is no corresponding provision which addresses relevance. However, in the RAD's view, it is obvious that evidence must be assessed for its relevance.5 In addition to support from the case law, the relevance of evidence is also subsumed into "credible and trustworthy" as found in Section 171(a.3.) [14] It is therefore appropriate for the RAD to apply the relevance factor set out in Raza. Even without the assistance of that jurisprudence, the RAD would nevertheless be required to consider the relevance of proposed new evidence. [15] Newness: Section 110(4) requires the RAD to consider when the evidence arose and whether it was reasonably available at the time of the rejection of the refugee claim. When the document arose is clearly a matter of assessing its newness and whether the document was reasonably available could relate to newness, though it could also be a question of accessibility. In any event, there is no doubt that the RAD is required to consider a document's newness, and it is therefore not inappropriate, but potentially redundant, to apply this factor from Raza. [16] In the RAD's view, it makes more sense to consider newness within the 110(4) analysis, rather than as a subsequent and separate factor. To put it simply, if a document is not new, it may not pass the test in Section 110(4) and therefore may not be assessed under Raza. The RAD will therefore incorporate the "newness" factor into its Section 110(4) analysis, rather than again considering the newness of evidence which has already passed the legislative test of Section 110(4). [17] Materiality: In Raza, the Federal Court of Appeal described this factor: "Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the RPD? If not, the evidence need not be considered." This factor may, in the RAD's view, set an inappropriately high standard in the context of a RAD appeal. [18] An officer determining a PRRA application must not engage in a review of the applicant's negative RPD decision. The PRRA process exists to determine whether a risk to the applicant has arisen between the date of issue of the RPD's decision and the date of the applicant's pending removal from Canada,6 and the officer has no power to reconsider or set aside the RPD's decision. In this context, the definition of materiality set out in Raza makes good sense: the new evidence must be so significant that it would have led to a different outcome before the RPD. However, the RAD context is considerably different. The RAD is not restricted to making a new assessment of the risk faced by the Appellant, though this could occur as a result of new evidence presented upon appeal. The Appellant may challenge the decision of the RPD, and the RAD has broad powers to review that decision for errors of fact or law, or mixed fact and law, to confirm the decision, to confirm on other grounds, to set aside the decision and substitute another, or to set aside the determination and refer the matter back to the RPD for redetermination. [19] The Court's definition of materiality, which is appropriate for evidence presented in support of a PRRA application, seems overly restrictive when applied to evidence submitted in an appeal to the RAD. If the RAD would apply the materiality factor as set out in Raza, it could lead to the rejection of evidence that is capable of showing that the RPD decision was unreasonable or otherwise in error, but which falls short of showing that it would have resulted in the acceptance of the refugee claim had the evidence been before the RPD. [20] It is not uncommon for the RPD to reject a refugee claim on the basis that the claimant has not established his or her identity, and in such situations the RPD is not required to go further to consider the evidence of persecution.7 A claimant rejected by the RPD on the basis of identity-perhaps because identity documents were still in transit from the country of origin at the time of the refugee hearing-might appeal to the RAD and present as new evidence such recently-received documents. However, those documents might be rejected by the RAD if it considers their materiality as defined in Raza: whether the refugee claim would probably have succeeded if the documents were made available to the RPD. In many cases, the establishment of identity does not in and of itself warrant the acceptance of a refugee claim, and therefore the Appellant's newly-obtained identity documents could be rejected by the RAD as lacking materiality. [21] In the RAD's view, this restrictive approach to materiality is not consistent with the broad powers given to the RAD. An approach that focuses on whether the evidence is material enough to affect the outcome of the RAD appeal rather than the RPD's decision is therefore preferred. [22] For all of these reasons, the RAD will apply a revised Raza approach to the new evidence in this appeal, and use the following factors to assess the admissibility of the Appellant's proposed new evidence. [23] Express statutory provisions: The RAD's analysis of the new evidence must begin with the test set out in Section 110(4). [24] First, did the evidence arise after the rejection of the Appellant's refugee claim? Here the RAD may consider whether the evidence is capable of proving the current state of affairs in the country of feared persecution, or an event that occurred or a circumstance that arose after the rejection of the refugee claim.8 [25] The RAD will consider not only the date on which the document came into existence but the timing of the event or circumstance which the document seeks to prove.9 For example, an affidavit or newspaper article may have been created after the rejection of the Appellant's refugee claim, but the information in the document may be several years old, and the RAD may therefore find that the evidence did not arise after the rejection of the claim, despite the date of the document. [26] It is important to note here that Section 110(4) does not contemplate whether the evidence arose after the RPD hearing, but rather after the rejection of the Appellant's claim. Where a document arose after the hearing but before the rejection of the refugee claim, it is necessary for the RAD to consider whether the Appellant could have presented the document to the RPD by way of a post-hearing submission. [27] If the evidence is capable of proving an event that occurred or circumstances that arose after the rejection of the claim, then the evidence must be considered, and the RAD will proceed to assess the credibility, relevance, and materiality of the document.10 [28] Second, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim, it must consider the next factor in Section 110(4). If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the rejection, has the Appellant established that the evidence was not reasonably available for presentation to the RPD before it rejected the claim, 11 or that it proves a fact that was unknown to him at the time of the hearing?12 If so, the RAD will proceed to assess the credibility, relevance, and materiality of the document. [29] Third, if the RAD finds that the evidence did not arise after the rejection of the Appellant's refugee claim and that it was reasonably available at the time of the rejection, it must consider the final part of the Section 110(4) test: could the Appellant reasonably have been expected in the circumstances to have presented the evidence prior to the rejection of his refugee claim? If so, the evidence need not be considered.13 If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will proceed to assess the credibility, relevance, and materiality of the document. [30] The factors set out below need not be considered in any particular order; however, the evidence must logically meet all of the factors, in addition to having met one of the statutory criteria, to be admissible.14 [31] Credibility: Section 171(a.3) of IRPA allows the RAD to receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances. Evidence that passes the test in Section 110(4) must therefore be assessed for credibility. The RAD must determine whether the evidence is credible, considering its source and the circumstances in which it came into existence. If not, the evidence need not be considered.15 [32] Relevance: The RAD must consider whether the evidence is relevant to the appeal, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection. If not, the evidence need not be considered.16 [33] Materiality: Is the new evidence capable of showing that the decision or reasons of the RPD are in error, or might the evidence affect the appropriate disposition of the appeal? If not, the evidence need not be considered. [34] If the Appellant's proposed new evidence meets the test in Section 110(4), as described above, and is credible, relevant, and material, then it is admissible before the RAD. [35] The interpreter's affidavit presented by the Appellant to the RAD meets the test in Section 110(4). Is it credible, relevant, and material? The RAD notes that the affidavit goes well beyond the facts it seeks to report. The affiant declares that "the errors raise serious issues and created a wrong impression of the story of the Appellant." He also gives his opinion that the quality of the interpretation provided "does not meet the standard of interpretation guaranteed by s. 14 of the Charter."17 In the RAD's view, the interpreter's opinion on the effect of any errors is not relevant and is not properly included in the affidavit.18 As for the rest of the affidavit, the RPD has no reason to doubt its credibility, and it is clearly relevant to the appeal. It is material in the sense that it is capable of showing that the decision or reasons of the RPD are in error, and could affect the appropriate disposition of this appeal. As such, the affidavit is admissible as new evidence in this appeal, with the exception of those portions that contain the affiant's impressions and opinion. Standard of Review [36] The Appellant alleges that he was denied natural justice and procedural fairness as a result of inadequate interpretation. In the judicial review context, the Federal Court has held that matters of natural justice are either beyond the scope of a standard of review, or the appropriate standard of review is correctness.19 The RAD finds that the same reasoning is applicable to this appeal, and the issue of adequate interpretation is to be reviewed on a standard of correctness. [37] As this appeal will be decided on the basis of the alleged interpretation errors, it is not necessary for the RAD to consider the appropriate standard of review for the RPD's credibility findings. The Quality of Interpretation Before the RPD [38] Rule 19 of the Refugee Protection Division Rules provides that a refugee claimant may request the Division to provide an interpreter for a language or dialect specified by the claimant. The right to an interpreter in a proceeding in another language is enshrined in Section 14 of the Charter, and this right has been held to be generally applicable to a proceeding before the RPD.20 [39] Interpretation should be continuous, precise, impartial, competent and contemporaneous. Although the standard of interpretation is high, it need not be so high as to be perfect. If a breach of this standard is shown, it is not necessary to show actual prejudice.21 What is important is whether the Appellant understood the interpretation and was able to adequately express himself through the interpreter.22 To put it another way, persons who do not speak and understand one of the official languages must be able to tell their story, and the interpretation must be of such quality that they are not impeached in their ability to make their case.23 [40] Complaints about the quality of interpretation must be raised at the earliest opportunity;24 failure to do so results in a waiver of the right to object to the interpretation on judicial review,25 and by analogy also on appeal to the RAD. Here, the Appellant does not speak English well, while his counsel before the RPD did not speak Kurdish, and therefore neither could reasonably be expected to have been aware of the interpretation issues, until subsequent to the rejection of his refugee claim, and the RAD therefore finds that he has not waived his right to object to the interpretation on appeal. [41] Was the Appellant able to adequately express himself-to tell his story to the RPD? The interpreter's affidavit presented upon appeal claims "many major errors," with "interpretation that was very poor." Of particular concern to the RAD is that the RPD asked the Appellant whether he had experienced other incidents of persecution or abuse in XXXX, but the interpreter asked him if he had ever been "tried" in XXXX.26 In its reasons, the RPD panel referred to the Appellant's flight from XXXX, his fear of persecution there, and whether he remained or returned there, and made negative credibility findings in respect to this evidence. In this context, the incorrect interpretation of "persecution" could have had a significant effect on the RPD's analysis. [42] The Appellant was asked how long he knew the local president of a political party he allegedly supported, and he testified that he knew this person from 1998 to 2007. According to the affidavit, however, the interpreter told the RPD that the time period was 1998 to 2004. The RPD made a negative credibility finding with respect to a letter from that president, because it referred to events beyond 2004, which "is beyond the scope of his knowledge,"27 and because it referred to the Appellant's activities in the 2007 election. The interpretation error is clearly relevant to, and perhaps even the basis for, this credibility finding. [43] The Appellant told the RPD that he left the village of XXXX to avoid service in the village guard, as the government had passed a law in respect to Kurds serving in such guards. The interpreter in the refugee hearing interpreted the Appellant's words to indicate that the government would compel Kurds to serve, and the RPD made a negative credibility finding because this alleged fear of conscription was not included in the Appellant's Basis of Claim form. According to the affidavit presented to the RAD, however, the proper interpretation would have been that the government encouraged Kurds to serve. This interpretation error is also significant, as the RPD's credibility finding was specifically related to the Appellant's perceived fear of conscription. [44] The RPD also made a negative credibility finding in respect to the Appellant's explanation for leaving XXXX. The panel asked the Appellant why he did not include the conscription issue in his BoC, and the Appellant replied that he did not mention it but left XXXX in order to avoid being followed. The RPD found this reply to be "non-responsive and not reasonable."28 On appeal, the Appellant submits that he said he did not want to draw attention to himself, and that this was incorrectly translated to suggest that he was being followed or was under surveillance. Again, this is an interpretation error which is directly related to a credibility finding made by the RPD. [45] The RPD made many negative credibility findings in respect to the Appellant's refugee claim. The Appellant does not challenge every finding on appeal, and the interpretation errors set out above do not affect each finding. However, the RPD ultimately made a cumulative credibility finding-based on its many concerns, it found that the Appellant had not established his claim with "credible and consistent evidence."29 It is impossible for the RAD to determine whether the RPD would have come to a different conclusion had the Appellant's words been correctly translated. However, it is clear that the Appellant's ability to tell his story to the RPD was impeached by the quality of translation, and the RAD finds that this resulted in a denial of natural justice. DISPOSITION [46] The interpretation in the Appellant's RPD hearing was not of a high enough standard to ensure that justice was done and seen to be done.30 For this reason, the Appellant's refugee claim must be re-heard, this time with adequate interpretation. CONCLUSION [47] This appeal is allowed. Pursuant to Section 111(1)(c) of IRPA, the RAD refers the matter to the Refugee Protection Division for re-determination by a differently-constituted panel. (signed) "Edward Bosveld" Edward Bosveld March 26, 2014 Date 1 Appellant's Record, p. 316, Memorandum, para. 2. 2 Refugee Appeal Division Rules, Rule 3(3)(d). 3 RAD Rules, Rule 3(3)(g)(iii). 4 Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007; 2007 FCA 385, paras. 13-15. 5 There is a great deal of support for this view. "If a matter is not relevant it cannot be taken into account. It should not be admitted into evidence:" Robert W. Macaulay & James L.H. Sprague, Practice and Procedure before Administrative Tribunals, loose-leaf ed. (Toronto: Carswell, 2004) at17-6.12; Re Bortolloti and Ministry of Housing (1977), 15 O.R. (2d) 617; Ontario (Provincial Police) v. Cornwall (Public Inquiry), 2008 ONCA 33 at para. 64. 6 Cupid, Keturah Laverne v. M.C.I. (F.C., no., IMM-1737-06), Snider, February 16, 2007; 2007 FC 176, paras. 4, 25, and 26. 7 Liu, Yanfen v. M.C.I. (F.C., no. IMM-4384-06), Barnes, August 10, 2007; 2007 FC 831, para. 18. 8 Raza, para. 13.3(a). 9 Raza, para. 16. 10 Raza, para. 13.5(b) 11 Raza, para. 13.5(a) 12 Raza, para. 13.3(b) 13 Raza, para. 13.5(a) 14 Raza, paras. 14, 15 15 Raza, para. 13.1 16 Raza, para. 13.2. 17 Appeal Record, p. 26, Affidavit of Suleyman Goven. 18 See, for example, Dhaliwal, Hardial Singh v. M.C.I. (F.C., no. IMM-978-11), de Montigny, September 26, 2011; 2011 FC 1097, para. 19. 19 Sohal, Manwinder Singh v. M.P.S.E.P. (F.C., no. IMM-1078-11), Harrington, October 18, 2011; 2011 FC 1175, para. 12. 20 Mohammadian v. Canada (MCI), 2001 FCA 191, [2001] 4 F.C. 85. 21 Sohal, para. 18, citing R v Tran, [1994] 2 SCR 951. 22 Lawal, Kayode Fasasi v. M.C.I. (F.C., no. IMM-3534-07), de Montigny, July 10, 2008; 2008 FC 861, at para 26. 23 Dhaliwal, para. 18. 24 Mohammadian, para. 27. 25 Bal, Tarlok Singh v. M.C.I (F.C., no. IMM-1472-08), de Montigny, October 17, 2008; 2008 FC 1178, at para 31. 26 Here the affidavit submitted to the RAD on appeal declares that "The [RPD] interpreter interpreted 'persecution' in the legal sense only." It appears that both the RPD interpreter and the affiant confused "persecution" with "prosecution." 27 RPD's Reasons, para. 20. 28 RPD's Reasons, para. 14. 29 RPD's Reasons, para. 34. 30 Sohal, para. 21. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (February 7, 2014) Disponible en français RAD File No. / N° de dossier de la SAR : TB3-08678