TB7-10536

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 : TB7-10536 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 April 18, 2018 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Hart A. Kaminker 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 ministre REASONS FOR DECISION [1] XXXX XXXX XXXX XXXX (the "Appellant"), a citizen of Iraq, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has not submitted new evidence in support of this appeal. The Appellant is not requesting an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to overturn the decision of the RPD and to find that the Appellant is a Convention refugee or a person in need of protection. In the alternative, the Appellant requests that the matter be returned to the RPD for a new hearing under a differently constituted panel. BACKGROUND [2] The Appellant alleges that, as a Kurdish Regional Government (KRG) XXXX XXXX XXXX employee, he was approached by terrorists who demanded he give them $XXXX XXXX XXXX XXXX XXXX US through some cheque cashing scheme. When the Appellant refused, he alleges he was first threatened and then beaten almost to death. Although he alleges that, after filing a report, police protected him for some time, the police eventually dropped his protection, leaving him vulnerable to the attack he suffered. More details may be gleaned from the Appellant's Basis of Claim (BOC) form.1 RPD's Reasons [3] In its reasons, the RPD found that the claimant/Appellant was not credible, that the Appellant's allegations of being threatened and later attacked and hospitalized were nothing more than a made-up story. [4] Pursuant to paragraph 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. Appellant's Issues [5] The Appellant raises five issues at the RAD: a. Did the RPD err in its assessment of key evidence such as the police report and the medical/police report? b. Did the RPD err when it misconstrued the evidence regarding police protection outside the Appellant's home? c. Did the RPD err when it found inconsistencies in the letter from the Appellant's brother? d. Did the RPD err in its overall assessment of the Appellant's credibility? e. Were there important and major issues with interpretation at the hearing? ANALYSIS Standard of Review [6] For questions of fact, mixed fact and law, and law, I have applied the standard of correctness as per Huruglica.2 Arguments - Interpretation [7] I will consider the issue of interpretation first as it is very important to ensure a fair hearing, and poor or inadequate interpretation will of itself be sufficient to return this file to the RPD. [8] Counsel argues that there were a great many instances of misinterpretation, and references some as follows: 1) Counsel alleges that when the Appellant was being questioned about what the extremist group wanted form the Appellant, the interpreter translated that they (the terrorists) wanted the bank to cash their cheques, when in fact (according to counsel) the Appellant actually stated that they (terrorists) wanted him (Appellant) to write a cheque to them (terrorists) on "projects" money. 2) Counsel alleges that when the panel was questioning the Appellant about his employee identification, presented in evidence, having expired before the Appellant testified that he had finished working for the Ministry, the interpreter indicated that the Appellant stated that he did not have a new identity card because he had not received a new one when in fact, according to counsel, the Appellant had actually testified that, in Kurdistan, all the ID has expired and the government did not renew them. [9] Counsel notes that there was no objection to interpretation issues during the hearing as there was no one other than the Board interpreter who spoke both Kurdish and English. Therefore, until post hearing when the counsel was able to order a copy of the recording of the hearing, he had no knowledge of the issues and consequently no opportunity to object. [10] My problem with this issue is this. The interpreter at the hearing is Board certified and experienced. Interpretation must be adequate but does not have to be perfect. [11] The only portion of the hearing3 presented to me was translated by counsel's chosen translator, a XXXX XXXX, who presents no credentials with which I can authenticate his or her ability to translate from Kurdish to English. Even if this person is qualified, the document translated bears no significant differences from the translation provided by the Board certified interpreter. [12] Counsel has not provided any evidence of the interpretive differences he alleges existed in the two examples above. [13] Counsel, if he truly believed that interpretation errors were so egregious, could have put in an official request for an audit or could have had an audit performed himself, by a certified translator. Counsel did neither but instead, chose to wait for his appeal to RAD to bring this issue forward. Counsel has already admitted to having no knowledge of the Kurdish language yet provides no evidence that any person with such knowledge, and qualified to translate, provided counsel with the details above. [14] From the only true example shown to me, I find that the differences between the official record and the "audit" counsel has presented is insignificant and would not affect the outcome of the hearing. This complaint is dismissed as unfounded. Police Protection at Appellant's Home [15] Counsel argues the misinterpretation of the Appellant's reply to a question of how many times the police had visited him, personally. Counsel states that the interpreter erred when he/she translated the Appellant's reply as that the police visited him only once. The panel asked the Appellant how many times, overall, the police interviewed him. According to counsel, the interpreter translated the panel's question as being how many times the police came to take a report from him in the hospital. Again, counsel provides insufficient proof that the Board certified interpreter erred. All I have before me is counsel's allegation of misinterpretation and counsel does not speak or understand Kurdish. [16] In the same circumstance, the panel had asked the Appellant about how long the police had surveillance on the Appellant's house. The Appellant did not, at this point, testify that the police "probably" had his house under surveillance but did testify that "police was watching for a few days. They say we have not seen anything". Again, counsel has adduced insufficient evidence to indicate that this was not a direct and accurate translation/interpretation of the Appellant's testimony. There is no supporting evidence to show that a misinterpretation led to any incorrect credibility findings. Brother's Letter [17] Counsel argues that the panel made an adverse credibility finding based on inconsistencies in the letter4 from the Appellant's brother when in fact the inconsistency in and of itself would not have sustained a negative determination and would not have tipped the balance against the Appellant. In other words, counsel is not disputing this inconsistency which evolved around the date at which time the Appellant alleged he moved his family to his brother's home out of fear for their safety. The Appellant had testified that he moved his family after October 18, when he received his U.S. visa; however, the Appellant's brother wrote in his letter of support that the Appellant moved his family into the brother's home on October 9. No reasonable explanation has been given for this inconsistency. [18] Counsel is right inasmuch that, if the above was the only issue on which a determination would be made, the determination would not be adversely affected by that issue, in most cases. However, this inconsistency is far from the only credibility concern and as such, this issue holds weight against the Appellant's overall credibility. There was no error by the panel in this issue. [19] Counsel's final argument is once again, interpretation issues but again, counsel provides insufficient evidence to sustain his allegations of poor interpretation. [20] As these are the only issues from the Appellant, most, if not all, of which stem around poor interpretation, which I have dealt with, there is nothing else for me to analyze. [21] I will not interfere with the RPD's credibility findings as each of them was a reasonable finding by the panel. Summary [22] The Panel has made no significant errors in this claim. There is insufficient evidence of any serious interpretation errors on the part of the Board appointed interpreter. Disposition [23] The RAD has found that the RPD decision will stand. CONCLUSION [24] Pursuant to paragraph 111(1)(a) of the 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. (signed) "David Lowe" David Lowe April 18, 2018 Date 1 Exhibit RPD-1, RPD's Record, at pp. 10-22. 2 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 3 Exhibit P-2, Appellant's Record, at p. 8a. 4 Exhibit P-2, Appellant's Record, at pp. 42-43. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-10536