Date:
20130620
Docket:
IMM-9093-12
Citation:
2013 FC 659
Ottawa, Ontario,
this 20th day of June 2013
Present: The
Honourable Mr. Justice Pinard
BETWEEN:
LAJOS RUTKA
LAJOSNE RUTKA
GRETA RUTKA
MARTINA RUTKA
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of the decision of Ron Yamauchi, a member
of the Refugee Protection Division of the Immigration and Refugee Board (the “Board”),
pursuant
to subsection 72(1) of the Immigration and Refugee Protection Act, SC
2001, c 27 (the “Act”). The Board dismissed the applicants’ claim for
refugee protection, concluding they were not Convention refugees or persons in
need of protection under sections 96 and 97 of the Act.
[2]
Lajosne
Rutka (the “principal applicant”), her husband Lajos Rutka and their daughters
Greta and Martina Rutka are citizens of Hungary.
[3]
The
principal applicant alleges she suffered discrimination and sexual harassment
in Hungary because of her Roma ethnicity. She also claims that her children
experienced harassment due to their part-Roma ethnicity and that her husband is
not a Roma, but has lost potential clients and work projects in Hungary because he was associated with Roma people.
[4]
The
determinative issue for the Board was the applicants’ credibility. For the
purposes of its analysis, the Board assumed the principal applicant was of Roma
background. However, the Board found that the evidence gave rise to credibility
concerns in a number of areas.
[5]
The
Board further found the principal applicant was not a particularly
straightforward witness, in that she sometimes did not answer questions.
* * * * * * * *
[6]
The
issues raised by the applicants may be formulated as follows:
- Did
the Board err in assessing the applicants’ credibility?
- Did the Board
breach the duty of procedural fairness by failing to provide adequate
translation at the hearing?
[7]
The
standard of review applicable to the Board’s findings of credibility is
reasonableness (Lumaj v Canada (Minister of Citizenship & Immigration),
2012 FC 763, 9 ImmLR (4th) 286 at para 25; Wu v The
Minister of Citizenship and Immigration, 2009 FC
929, at para 17; Dunsmuir
v New Brunswick, [2008] 1 S.C.R. 190 [Dunsmuir];
Aguebor v The Minister of Employment and Immigration (1993), 160 NR 315
(FCA) at para 4).
[8]
When
reviewing a decision on the reasonableness standard, the Court must determine
whether the Board’s findings fall within the “range of possible, acceptable
outcomes which are defensible in respect of the facts and law” (Dunsmuir,
above, at para 47). Although there may be more than one possible
outcome, as long as the Board’s decision-making process was justified,
transparent and intelligible, a reviewing court cannot substitute its own view of
a preferable outcome (Canada (Citizenship and Immigration) v Khosa,
[2009] 1 S.C.R. 339 at para 59).
[9]
It
is well established that correctness is the applicable standard of review for
the second issue, as it is a question of procedural fairness (Dhaliwal v The Minister of Citizenship and Immigration, 2011 FC 1097 at para 12 [Dhaliwal]; Sandoval v The Minister
of Citizenship and Immigration, 2012 FC 1273 at para 35 [Sandoval]).
* * * * * * * *
1. Did the Board err in
assessing the applicants’ credibility?
[10]
Considerable
deference is owed to the Board’s assessment of credibility (Hassan v The Minister
of Citizenship and Immigration, 2010 FC 1136 at para 11).
[11]
The
applicants have not persuaded me that the Board’s overall assessment of their
credibility was unreasonable.
[12]
With
respect to the applicants’ argument that the Board erred in drawing a negative
inference from the finding that the principal applicant was not a particularly
straightforward witness, the applicants have not pointed to any psychological
evidence before the Board concerning the principal applicant to support the
view that the Board should have noted her psychological condition in assessing
her testimony. The applicants refer to Khawaja v Canada (Minister of
Citizenship and Immigration) (1999), 172 FTR 287 and Lubana v Canada
(Minister of Citizenship and Immigration) (2003), 228 FTR 43 to support
their argument, but both cases are distinguishable in that the applicants in
those cases had submitted a psychological report to the Board and the Court
found that this evidence was not properly considered.
[13]
Moreover,
in my view, I am not persuaded the Board committed any reviewable error by
drawing a negative inference from multiple inconsistencies in the applicants’
evidence. The Board acknowledged that the inconsistency between the principal
applicant’s interview with a Border Services officer and her Personal
Information Form regarding the date she was last hurt may have been the result
of legitimate confusion, but reasonably noted that this inconsistency created
some doubt overall about the accuracy of her recall. It was also reasonable for
the Board to note that it was not clear how the principal applicant would have
been prevented from making her refugee claim when she attempted to enter Canada in November 2009, given that she admitted an interpreter was available by telephone.
It was reasonable that the Board’s understanding was not clarified by the principal
applicant’s submission that she had a psychological reaction to the aggressive
Border Services officer.
[14]
As
underlined by the respondent, the applicants have not directly challenged the
Board’s findings that the principal applicant made inconsistent statements
about the family’s finances. Nor have the applicants challenged the Board’s
concern that the principal applicant and her children may not be visually
discernable as Roma people, or the Board’s finding that the fact the non-Roma
claimant came first, leaving the Roma family members in Hungary, created a doubt that the family’s departure was genuinely motivated by ethnic
prejudice.
[15]
As
for the applicants’ argument that the Board unreasonably found that Mr. Rutka
had provided inconsistent motives for leaving Hungary, I agree with the
respondent that the Board’s concern arose from the fact that at different times
the principal applicant provided different answers for why her husband left
Hungary and could not explain at the hearing why she had done so.
2. Did
the Board breach the duty of procedural fairness by failing to provide adequate
translation at the hearing?
[16]
As
underlined by the respondent, interpretation in Board hearings must be “continuous,
precise, competent, impartial and contemporaneous” but does not have to be
perfect (Mohammadian
v The Minister of Citizenship and Immigration, 2001 FCA 191 at paras 4 to 6; Sandoval, above, at para 36).
[17]
The
only evidence in the Certified Tribunal Record of the applicants’ concerns
regarding the interpretation provided is a note in the Hearing Information
Record that on the first day of the two-day hearing, the principal applicant’s
bilingual daughter “expressed concerns” about the interpreter (page 4 of the
Certified Tribunal Record). In their oral submissions before the Court, the
applicants said they expressed concerns during a break and that is why their
complaint is not reflected in the hearing transcript. There is no evidence
explaining how the Board dealt with the applicants’ concerns.
[18]
The
applicants admit that although they expressed concerns about the interpreter to
both the Board and their counsel, they never asked the Board to find a
different person to provide interpretation. The applicants say they did not
know they had the right to make such a request.
[19]
Moreover,
even though the same person provided interpretation on both days of the
hearing, there is no indication in the documentary evidence that the applicants
complained about the interpretation on the second day of their hearing.
[20]
The
principal applicant affirms that she needed to repeat and rephrase the questions
put to her by the interpreter in order to understand his Hungarian, but I do
not see where in the transcript this occurred. The only
interpretation issues I see in the transcript are that several times throughout
the hearing the interpreter needed to ask the presiding member or the
applicants’ counsel to repeat a question.
[21]
However,
the applicants do not allege any errors made in the interpretation that had a
material effect on the proceedings or the decision (Deng v The
Minister of Citizenship and Immigration, 2007 FC 943 at para 17). The
applicants seem to argue that the Board should have acknowledged the principal
applicant’s difficulty understanding the interpreter in finding that she was
not a particularly straightforward witness. The Board’s analysis on this point was
as follows:
[18] To
begin with, the principal claimant was not a particularly straightforward
witness, in that she sometimes did not answer questions. For example, asked to
clarify how the Hungarian Guard became aware that she is Roma, she repeated the
question and then stopped. She was prompted to answer the question and advised
that she could say that she did not know the answer. She did not answer at all.
After another prompt, she stated that the Hungarian Guardsman must have learned
through her name, her outlook, and because her co-worker knew.
[19] The
hesitant nature of this answer gives rise to some concerns about its accuracy.
[22]
I
believe the Board’s analysis is based on the following exchange between the applicants’
lawyer, the presiding member and the principal applicant which took place at
the hearing (pages 399 and 400 of the Certified Tribunal Record):
BY
MR. BHATTI:
Q: You
said that -- you were asked about the Hungarian Guard targeting your children
and you said it was because you were Roma. How did -- from your knowledge, how
did the Hungarian Guard first become aware that you were Roma?
A: When
did they know or how do they know that I am Roma origin, Counsel?
Q: Yes.
PRESIDING
MEMBER: If you don’t know, that would be an answer too. You’re
taking awhile with this. If there is an answer, you can take your time, but if
you don’t know, you can say that. Whatever is the truth.
A: Counsel,
you asked since when they know or how they know that I am Roma origin?
BY
MR. BHATTI:
Q: Yeah.
How do you think they knew that you were Roma? If you know. If you don’t know,
that’s fine. Okay. Is it safe to assume from you not answering, ma’am, that you
don’t know?
A: I’m
sorry, I do not understand the question.
PRESIDING
MEMBER: The question is –
INTERPRETER: Counsel,
can you pose the question again?
MR.
BHATTI: I think the Panel is about to.
PRESIDING
MEMBER: Well, how would Hungarian Guardsmen know that you’re a Roma
person? You said your children were harassed because you’re Roma. How do they
know you’re Roma?
A: They
know because of my name, because of my outlook. This co-worker, she knew
evidently that I am a Roma origin and her husband was a Guardsman. They knew my
children attended what school.
[23]
As
the applicants have not explained how the principal applicant had difficulty
understanding the interpreter during this exchange, and this exchange was the
only example the Board gave to justify its finding that the principal applicant
was not a particularly straightforward witness, I fail to understand how the
Board had a duty to acknowledge any interpretation difficulties in making this
finding.
[24]
Accordingly,
since the applicants have not explained how any interpretative errors had a
material effect on the decision or impacted their ability to make their case, I
cannot find that the Board breached the duty of procedural fairness (Deng,
above, at para 17; Dhaliwal, above, at para 18).
* * * *
* * * *
[25]
For
the above-mentioned reasons, the application for judicial review is dismissed.
[26]
I
agree with counsel for the parties that this is not a matter for certification.
JUDGMENT
The application for
judicial review of the decision of Ron Yamauchi, a member of the Refugee
Protection Division of the Immigration and Refugee Board of Canada, dated August
14, 2012, is dismissed.
“Yvon Pinard”
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