TB7-18750

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 / Dossier de la SAR : TB7-18750 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, ON Appel instruit / entendu à Date of decision September 26, 2018 Date de la décision Panel James Sloan Tribunal Counsel for the person(s) who is(are) the subject of the appeal D. Clifford Luyt Barrister & Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX claims that if returned to Turkey, his country of nationality, he will be persecuted based on his Kurdish ethnicity and his political opinion as a supporter of the People's Democratic Party (HDP). His claim for refugee protection was refused by the Refugee Protection Division (RPD) on August 9, 2017 on the grounds of credibility. He now appeals to the Refugee Appeal Division (RAD). DETERMINATION [2] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), I refer the matter to the RPD for redetermination. The appeal is allowed. DETERMINATIVE ISSUE [3] The determinative issue in this case is credibility. STANDARD OF REVIEW [4] The standard of review is correctness,1 except where the RPD enjoys a meaningful advantage in the assessment of the oral testimony. If such an advantage exists, I will apply a standard of reasonableness.2 Where I do so, I will so indicate. ANALYSIS [5] The case involves a finding by the RPD that the Appellant was generally not credible on the following bases: The negative inferences with regard to the credibility of the claimant's allegations, together with his efforts to manipulate the selection of a preferred interpreter at the hearing, as well as his unfounded allegation of negligence on the part of either the Canadian Border Services Agency or their contract interpreter at the Port of Entry, lead the panel to find that the claimant is generally not credible.3 Based on this finding, the RPD found that the Appellant had not provided credible or trustworthy evidence in support of his claim and rejected it. [6] Unusually, two of the RPD's credibility findings have nothing to do with the Appellant's evidence; rather, they deal with findings that the Appellant was abusing the Board's procedures and rules by: 1) attempting to arrange to have his preferred interpreter at the hearing; and 2) making an unfounded allegation that there had been a breach of natural justice due to the actions of the Canada Border Services Agency (CBSA) and one of its translators. Regarding the interpretation arrangements at the Appellant's hearing, the RPD made a very forceful finding: that the Appellant's claims to have difficulty with the assigned interpreter "were insincere, pretended and an attempt to secure one specific interpreter out of the RPD pool of Turkish-speaking interpreters."4 Its findings regarding the claim of a breach of natural justice were equally categorical-and it linked them to its finding regarding the interpretation arrangements: ... the panel regards the attempt to impugn the integrity of the process at the port of entry, and specifically on the issue of language interpretation, to be consistent with the efforts of this claimant at the outset of this hearing before the RPD to impugn the ability of the panel to proceed with the dual-speaking Turkish-Kurmanji interpreter who as assigned but who the claimant did not prefer.5 [7] These two credibility findings, even if true-and I note that the transcript shows that the finding regarding the Appellant's attempt to manipulate the selection of his interpreter by requesting a particular interpreter appears to be mistaken-have no impact on whether the Appellant's claim was truthfully made and whether he faces a serious possibility of persecution or, on a balance of probabilities, a risk of torture or other serious harm, as outlined in subsection 97(1) of the IRPA. If true, the Appellant's conduct would be a deeply regrettable waste of the Board's scarce resources and perhaps even a ground for complaint against the Appellant's legal representative. It would not, however, have any impact on the veracity of the Appellant's testimony. There is no link between an alleged misuse of the Board's procedure or rules and the truthfulness of the alleged misuser's story. As such, the two credibility findings are in error. [8] The RPD's third finding-that there was a discrepancy between the evidence in the Appellant's Basis of Claim (BOC) narrative and the information he gave to the CBSA officials upon arrival-may or may not be valid. However, in the circumstances of this unusual case, I need not address this. This is so because I find that the RPD's clear displeasure at what it perceived to be procedural abuse appeared to colour its assessment of the overall case, including its willingness to examine the Appellant's supporting documentation objectively and to pose questions thereupon. [9] In the circumstances, I find that referring the matter back to the RPD is the appropriate remedy as I find myself unable to determine whether or not the Appellant is a Convention refugee or person in need of protection. CONCLUSION [10] Pursuant to paragraph 111(1)(c) of the IRPA, I refer the matter to the RPD for redetermination. The appeal is allowed. (signed) "James Sloan" James Sloan September 26, 2018 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, at para 103. 2 Ibid., at paras 69-74, and X (Re), 2017 CanLII 33034 (CA IRB). 3 Exhibit P-2, Appellant's Record, at p. 7, Reasons and Decision, at p. 6, lines 5-9. 4 Exhibit P-2, Appellant's Record, at p. 4, Reasons and Decision, at p. 3, lines 16-18. 5 Exhibit P-2, Appellant's Record, at p. 6, Reasons and Decision, at p. 5, lines 9-13. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB7-18750 5 RAD.25.02 (August 08, 2018) Disponible en français