TB5-05417

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 : TB5-05417 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision July 8, 2015 Date de la décision Panel Leonard Favreau Tribunal Counsel for the person(s) who is(are)the subject of the appeal Nduka Ahanonu 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 ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), a citizen of Ethiopia, 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, and requests an oral hearing. The Appellant asks that the Refugee Appeal Division (RAD) set aside the decision of the RPD. DETERMINATION [2] Pursuant to Section 111(1)(a) of the Immigration and Refugee Protection Act (IRPA), the RAD confirms the decision of the RPD, that the Appellant is neither a Convention refugee nor a person in need of protection. This appeal is dismissed. Background [3] The Appellant alleged before the RPD that he cannot return to Ethiopia because he fears the security forces of the ruling party. He alleges that after refusing a request to join the party he has been arrested and detained by the security forces who accuse him of working with opposition parties. [4] The Appellant's application for refugee protection was heard on December 1, 2014. In an oral decision, the RPD rejected the claim, finding that the Appellant was not credible. [5] The Appellant submits that the RPD decision is flawed because it is based on flawed interpretation. ANALYSIS Role of the RAD [6] The Appellant has not made submissions in regard to the role that the RAD plays in the review of an RPD decision. However, the RAD finds that the recent Federal Court decision, in Huruglica,1 provides the RAD with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal. Justice Phelan states in paragraphs 54 and 55 of the foregoing decision: [54] Having concluded that the RAD erred in reviewing the RPD's decision on the standard of reasonableness, I have further concluded that for the reasons above, the RAD is required to conduct a hybrid appeal. It must review all aspects of the RPD's decision and come to an independent assessment of whether the claimant is a Convention refugee or a person in need of protection. Where its assessment departs from that of the RPD, the RAD must substitute its own decision. [55] In conducting its assessment, it can recognize and respect the conclusion of the RPD on such issues as credibility and/or where the RPD enjoys a particular advantage in reaching such a conclusion but it is not restricted, as an appellate court is, to intervening on facts only where there is an "overriding and palpable error". [7] While there has been some conflict in the case law from the Federal Court regarding the standard of review to be applied by the RAD when reviewing RPD decisions, Justice Martineau, in Alyafi,2 has said that, in the face of this conflict, the Federal Court should allow the RAD to apply either approach as long as the question of the scope of the appellate review of the RPD's decisions has not been settled by a final judgment by the Federal Court of Appeal or the Supreme Court of Canada. [8] Accordingly, the RAD will conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Deference will be afforded to the credibility findings of the RPD, or to other findings where the RPD has a particular advantage in reaching its conclusions. Admissibility of Evidence presented on Appeal. [9] The Appellant has tendered the following proposed new evidence in support of his appeal: (a) An affidavit from the Appellant's spouse dated December 21, 2014; (b) Letter from the Appellant's employer in Ethiopia dated December 29, 2014; (c) Appellant's affidavit dated January 6, 2015; and (d) Affidavit of XXXX XXXX XXXX dated January 6, 2015 [10] The Appellant submits that he had to produce the new evidence to clarify the confusion that arose during the hearing, which was caused by the problems related to the interpretation. He argues that it could not have been reasonably expected to tender this evidence prior to the rejection of his claim because he did not anticipate the interpretation issues that arose. [11] The RAD's analysis of the admissibility of the proposed new evidence must begin first with the test set out in s. 110(4). In assessing whether the proposed new evidence meets the statutory provisions of s. 110(4), the RAD considered the following: (a) 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.3 (b) 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. 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. (c) It is important to note here that s. 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. (d) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered, and the RAD will proceed to assess the probative value of the evidence. (e) 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 s. 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, or that it proves a fact that was unknown to him at the time of the hearing? If so, the RAD will proceed to probative value of the evidence. (f) 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 s. 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. If the Appellant could not reasonably have been expected to present the evidence to the RPD, the RAD will consider the evidence and proceed to assess the probative value of the evidence. Affidavit of the Appellant's spouse and letter from employer [12] In the case at hand, the RAD finds that while the affidavit from the Appellant's spouse and the letter from his workplace were both dated after the rejection of the Appellant's claim, the Appellant could reasonably be expected to have tendered this evidence prior to the rejection of his claim. The RAD notes that the reason provided by the Appellant for why he could not have been reasonably expected to tender this evidence prior to the rejection of his claim was that he "did not anticipate the interpretation issues that arose". However, the RAD notes that Appellant has not demonstrated how either of these documents is related to the issue of translation. [13] The two documents provide facts that were known to the Appellant prior to his refugee claim and there was no explanation provided by the Appellant as to why he could not obtain or tender these documents for his hearing. The RAD notes that prior to the hearing, the Appellant was provided notice to produce available documentary evidence to support all aspects of his claim. [14] The RAD finds there is a requirement on the Appellant to provide an explanation about why the proposed new evidence meets the statutory requirement. The Court has held that if an applicant believes that the evidence meets the requirements of paragraph 113(a), it is up to the applicant to provide explanations as to why it conforms to the statutory requirement.4 For example, if the evidence pre-dates the RPD's decision, it is the duty of the person submitting the new evidence to provide why it had not been placed in front of the RPD under the express statutory requirements under paragraph 113(a).5 [15] Similarly, the Refugee Appeal Division Rules6 (RAD Rules) provide that the Appellant's record must contain: (i) a written statement indicating whether the Appellant is relying on any evidence referred to in subsection 110(4) of the IRPA, and (ii) a memorandum that includes full and detailed submissions regarding how any documentary evidence that the Appellant wants to rely on in the appeal meets the requirements of subsection 110(4) of the IRPA and how that evidence relates to the Appellant. [16] The Appellant's only explanation was that he tendered this evidence in response to concerns with the interpretation which he was not aware of until after the determination. The RAD notes that these two proposed evidence are relative to events which occurred prior to the Appellant's hearing and determination of his claim. The RAD finds that the Appellant's explanation is insufficient and that further explanation is required to demonstrate how the proposed new evidence meets the statutory requirements. [17] The RAD finds that this evidence was reasonably available to the Appellant prior to the rejection of his claim and that the Appellant has provided insufficient persuasive explanation of why he could not reasonably have tendered that evidence prior to the rejection of his claim. Accordingly, the proposed new evidence is not admitted as evidence in this appeal. Affidavits of the Appellant and XXXX XXXX XXXX [18] The RAD finds that some of the content in the Appellant's affidavit addresses the issue of translation. The RAD finds the remainder of the affidavit is largely an effort to provide additional testimony to address concerns raised by the RPD during the hearing. In light of the explanation provided by the Appellant that he was not aware of the translation errors until after the rejection of his claim, the RAD will admit that portion of the affidavit which is directly related to the issue of translation as new evidence in this appeal. [19] The RAD finds that the affidavit of XXXX XXXX XXXX is directly relevant to this issue of translation and that the Appellant has provided sufficient explanation why he could not reasonably have tendered that evidence prior to the rejection of his claim. Accordingly this affidavit is admitted as new evidence in this appeal. Oral Hearing [20] According to Section 110(6), upon which the Appellant relies, the RAD may hold a hearing if, in its opinion, there is documentary evidence referred to in 110(3) that raises a serious issue with respect to the credibility of the Appellant, that is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. In this appeal, where there is no new evidence from or in response to the Minister, the documentary evidence referred to in Section 110(3) must be understood in relation to Section 110(4). [21] When read together, Sections 110(3), (4), and (6) establish that the RAD must not hold a hearing in an appeal such as this unless there is new (Section 110(4)) evidence, in which case the RAD may hold a hearing if that new evidence raises a serious issue with respect to the credibility of the Appellant, is central to the RPD's decision, and that, if accepted, would justify allowing or rejecting the refugee protection claim. [22] While the RAD has admitted new evidence in this Appeal, the RAD finds that the evidence does not raise a serious issue with respect to the Appellant's credibility that would justify accepting or denying the Appellant refugee protection claim. As such, the RAD must proceed without a hearing. ANALYSIS OF THE MERITS OF THE APPEAL Was the Interpretation Flawed? [23] The Appellant submits that his right to procedural fairness was breached because the quality of interpretation at the RPD hearing did not meet the accepted standard of interpretation as set out in Tran Vs Canada.7 The appellant argues that although he acknowledged at the start of the hearing after a brief conversation with the interpreter that he understood the interpreter, he was somewhat confused by the questions asked of him during the hearing as they seemed to be "out of tune". He argues that it was not until after he received the Reasons and Decision of the RPD that he realized that the interpretation was flawed. He argues that the flawed interpretation renders the RPD decision unsustainable. [24] He also argues that he could not have been expected to raise the issue of interpretation at the hearing because he did not recognize that there was a problem at that time, and as such, it cannot be that he waived his rights in this regard. [25] The RAD notes that 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.8 [26] 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.9 What is important is whether the Appellant understood the interpretation and was able to adequately express himself through the interpreter.10 To put it another way, persons who do not speak and understand one of the official languages of Canada, must be able to tell their story, and the interpretation must be of such quality that they are not impeded in their ability to make their case.11 [27] In order for the RAD to determine if there was an interpretation error, the RAD finds it is incumbent on the Appellant to present sufficient persuasive argument beyond simply stating there was an error. The declaration that the Appellant makes in his submissions that the translation was flawed requires further explanation. In other words, the Appellant must demonstrate that the interpretation was flawed. The RAD finds however, that the Appellant has not provided sufficient persuasive evidence to establish that the interpretation was flawed. [28] The RAD has considered the affidavit of XXXX XXXX XXXX who describes himself as a "professional interpreter in English/Amharic and English Oromo languages". The affiant states that it was clear to him that some of the important pieces of the Appellant's story were not properly interpreted. He further states that this led to the confusion that the panel was having about the Appellant's testimony. He states that he has read the Appellant's affidavit and agrees with errors the Appellant pointed out "which were largely because of the misinterpretation." [29] Unfortunately, the RAD finds that it can give little weight to this affidavit in establishing that the interpretation was flawed. Although the affiant claims to be a "professional interpreter" the RAD notes that he has not provided any evidence that he has been certified by any organization as an interpreter. Furthermore, the only specific example of an interpretation error provided by the affiant was the reference to the statement "the people force knows" which he believed had no connection to any of the questions asked or any of the answers provided by the Appellant. The RAD notes that while this might have been an interpretation error, there is no indication that it is related to any of the RPD's credibility findings. In addition, the RAD notes that the affiant has not provided any other specific examples of interpretation error or that he agrees with the Appellant's allegations of error. [30] Although the Appellant has submitted that it was flawed interpretation that resulted in the RPD attributing statements to him that he did not make, he has not submitted adequate evidence to establish that there actually were any interpretation errors. In light of the allegation of flawed interpretation, it is reasonable to expect that the Appellant could provide a side by side comparison of the interpretation conducted by the board certified interpreter and the Appellant's certified interpreter, to demonstrate the specific interpretation errors that were made, rather than just relying on his own unsupported declaration. Furthermore, it is reasonable to expect the Appellant to explain how the alleged interpretation errors led to the negative credibility findings of the RPD. The RAD notes that the Appellant is represented by competent counsel in this appeal, and the importance of tendering this type of evidence is apparent. [31] Furthermore, the RAD notes that complaints about the quality of interpretation must be raised at the earliest opportunity;12 failure to do so results in a waiver of the right to object to the interpretation on judicial review,13 and by analogy, also on appeal to the RAD. Here, although the Appellant claims in his affidavit that he sometimes struggles with different accents, and that it is difficult for him to understand a lot of things when Canadians speak, he acknowledges that he is able to read and understand English to a very large extent. The Appellant also acknowledged that his university studies were conducted in English. The RAD also notes that the Appellant completed his Basis of Claim document on his own and communicated with the Board by letter in English. [32] Although he has alleged that his competency in English is limited, he has demonstrated that he actually has highly competent English language skills. As such, the Appellant was not limited by an inability to understand the translation and had the opportunity to address the issue in the hearing. The RAD notes that the Appellant was advised at the outset of the hearing to raise any concerns he had with interpretation at the earliest opportunity during the hearing. [33] The RPD made many negative credibility findings in respect to the Appellant's refugee claim. The Appellant does not challenge every finding on appeal. The RAD finds that the Appellant has not demonstrated how the alleged interpretation errors affect each finding. The RAD finds, after its own review and assessment of the evidence, that the Appellant's argument has not established why the RAD should not recognize and respect the findings of the RPD in this regard. CONCLUSION [34] On the basis of the findings noted above and after its own assessment of all the evidence in the record, including the recording of the hearing, the RAD agrees with the RPD's finding that the Appellant has not satisfied his burden of establishing a serious possibility that he would be persecuted or that he would be personally subjected to a risk to his life, or a risk of cruel and unusual treatment or punishment, or a danger of torture in Ethiopia. [35] The RAD finds that the Appellant is neither a Convention refugee, nor a person in need of protection. Pursuant to s. 111(1)(a) of the IRPA, the RAD confirms the decision of the RPD and dismisses the appeal. (signed) "L. Favreau" Leonard Favreau July 8, 2015 Date 1 Huruglica, Bujar v. M.C.I. (F.C., no. IMM-6362-13), Phelan, August 22, 2014, 2014 FC 799. 2 Alyafi, Aghiad v. M.C.I. (F.C., no. IMM-1091-14), Martineau, October 8, 2014, 2014 FC 952. 3 Raza, Syed Masood v. M.C.I. (F.C., no. IMM-7269-05), Mosley, November 16, 2006, 2006 FC 1385; Raza, Syed Masood v. M.C.I. (F.C.A., no. A-11-07), Linden, Sharlow, Ryer, December 6, 2007, 2007 FCA 385. 4 Bengabo, Serge Cedrick v. M.C.I. (F.C., no. IMM-2750-08), Shore, February 23, 2009, 2009 FC 186, at para. 23. 5 Jessamy, Gracel Bernadet v. M.C.I. (F.C., nos. IMM-2302-09, IMM-2639-09), Phelan, May 4, 2010, 2010 FC 489, See also: Aleziri, Abdullah Mohammed v. M.C.I. (F.C., no. IMM-360-08), Lagacé, January 15, 2009, 2009 FC 38 and Haque, Rahela v. M.C.I. and M.P.S.E.P. (F.C., no. IMM-5356-08), O'Keefe, June 28, 2010, 2010 FC 703. 6 Rules 3(3)(d)(i) and (g)(iii), 5(2)(d)(ii), and 29(3), Immigration and Refugee Board, Refugee Protection Division Rules, SOR/2002-22. 7 Tran, (Quoc Dung): R. v. Tran, [1994] 2 S.C.R. 951 8 Mohammadian, Soliman v. M.C.I. (F.C.A., no. A-197-00), Stone, Rothstein, Sexton, June 6, 2001. 9 Sohal, para. 18, citing R v Tran, [1994] 2 SCR 951. 10 Lawal, Kayode Fasasi v. M.C.I. (F.C., no. IMM-3534-07), de Montigny, July 10, 2008, 2008 FC 861, at para 26. 11 Dhaliwal, para. 18. 12 Mohammadian, para. 27. 13 Bal, Tarlok Singh v. M.C.I. (F.C., no. IMM-1472-08), de Montigny, October 17, 2008, 2008 FC 1178, at para 31. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-05417