Gajic v. Canada (Minister of Citizenship and Immigration), 2003 FCT 108 (CanLII) | Cases | Cases

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Date: 20030131

 

Docket: IMM-1656-00

 

Neutral citation: 2003 FCT 108

 

Ottawa, Ontario, this 31st day of January, 2003

 

PRESENT:      THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE

 

 

BETWEEN:

 

 

                                                            STOJANKA GAJIC

 

                                                                                                                                            Applicant

 

                                                                        - and -

 

 

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

 

                                                                                                                                       Respondent

 

 

                                            REASONS FOR ORDER AND ORDER

 

O'KEEFE J.

 

 

[1]                This is an application for judicial review of the decision of the Convention Refugee Determination Division ("CRDD") of the Immigration and Refugee Board, dated March 1, 2000, wherein the applicant was found not to be a Convention refugee.

 

 


Background

[2]                The applicant is a citizen of Serbia and is a minor claimant. The applicant claims to have a well-founded fear of persecution in Serbia because of her mixed ethnicity, having a Romanian mother and a Serbian father. Her designated representative for the hearing was her aunt.

[3]                The applicant was born in Vladimirovac, in the province of Vojvodina, Yugoslavia. Vojvodina is a part of Yugoslavia which has a population that includes people of Romanian ethnic background and it borders with Romania.

[4]                The applicant came to Canada on May 3, 1999 and on May 5, 1999, made known her intention to seek Convention refugee status.

[5]                The applicant executed her Personal Information Form ("PIF") on July 20, 1999.

[6]                The applicant's hearing before the CRDD was held on February 15, 2000 and its decision was dated March 1, 2000.

[7]                Issues

1.          Did the tribunal breach the applicant's right to natural justice and a fair hearing by virtue of the fact that she did not have access to a qualified interpreter during the hearing?


2.          Did the tribunal err in law by misconstruing evidence and by making findings which had no evidentiary basis and by ignoring uncontradicted evidence? Did the tribunal ignore evidence before it which may have substantiated the applicant's claim?

3.          Did the tribunal err in law by concluding that human rights monitoring agencies faithfully continue to follow and report on all incidents of abuse, discrimination and persecution without any evidence before it on that issue?

4.          Was the conduct of the tribunal such as to deny the applicant's right to natural justice and a fair hearing and did the tribunal's conduct give rise to a reasonable apprehension of bias?

Relevant Statutory Provisions

[8]                The relevant section of the Immigration Act, R.S.C. 1985, C. I-2, states:

2(1)"Convention refugee" means any person who

(a) by reason of a well-founded fear of persecution for reasons of race, religion, nationality, membership in a particular social group or political opinion,

(i) is outside the country of the person's nationality and is unable or, by reason of that fear, is unwilling to avail himself of the protection of that country, or

2(1) réfugié au sens de la Convention Toute personne:

a) qui, craignant avec raison d'tre persécutée du fait de sa race, de sa religion, de sa nationalité, de son appartenance un groupe social ou de ses opinions politiques:

(i) soit se trouve hors du pays dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut se réclamer de la protection de ce pays,

  

(ii) not having a country of nationality, is outside the country of the person's former habitual residence and is unable or, by reason of that fear, is unwilling to return to that country, and

(b) has not ceased to be a Convention refugee by virtue of subsection (2),

  

but does not include any person to whom the Convention does not apply pursuant to section E or F of Article 1 thereof, which sections are set out in the schedule to this Act;

(ii) soit, si elle n'a pas de nationalité et se trouve hors du pays dans lequel elle avait sa résidence habituelle, ne peut ou, en raison de cette crainte, ne veut y retourner;

b) qui n'a pas perdu son statut de réfugié au sens de la Convention en application du paragraphe (2).

Sont exclues de la présente définition les personnes soustraites l'application de la Convention par les sections E ou F de l'article premier de celle-ci dont le texte est reproduit l'annexe de la présente loi.

Analysis and Decision

[9]                Issue 1

Did the tribunal breach the applicant's right to natural justice and a fair hearing by virtue of the fact that she did not have access to a qualified interpreter during the hearing?

The applicant submitted that she was denied access to a qualified interpreter for two reasons: (1) the quality of the interpretation; and (2) the fact that the interpreter was allegedly Croatian and the applicant was Serbian.


[10]            I will first discuss the quality of the interpretation. A review of the transcript shows only a few instances where the interpreter asked to have something repeated. The applicant's aunt, who was designated representative at the hearing, stated that she was fluent in both the Serbian and English languages and in paragraph 9 of her affidavit, listed 21 examples of incorrect interpretation. I have reviewed each of the examples and I am of the view that even if there was misinterpretation, it did not have any effect on the outcome of the case. The applicant's aunt stated that the question, "When your sister calls you, does she call from her shop or home?" was translated as "If your sister were to call you, would she call you . . .?". The applicant, in paragraph 18 of her affidavit stated:

The question in English from the panel was whether when my sister called me, did she call me from home. The translation was "If your sister were to call you, where would she call you from?"

 

There is a different version by the applicant and the aunt of the interpretation of this question.

[11]            Even if I am in error that the interpreter properly interpreted the testimony and that if there were any errors, the errors were not material to the outcome of the case, there is one more reason that this ground should not be allowed. The issue of improper interpretation was not raised as an objection at the hearing before the tribunal and consequently, in this case, cannot be raised now to defeat the tribunal's determination. This point was clearly stated in Mohammadian v. Canada (Minister of Citizenship and Immigration) 2001 FCA 191 (CanLII), [2001] 4 F.C. 85 (F.C.A.) at paragraph 19:

As I have indicated, in light of his experience at the very first sitting of the Refugee Division the appellant appears to have been well aware of his right to the assistance of a qualified interpreter. When his conduct during the whole of the third sitting and for some time afterward is weighed with his undoubted knowledge of his right, it is difficult to construe that conduct as other than a clear indication that the quality of interpretation was satisfactory to him during the hearing itself. In my view, therefore, Pelletier J. did not err in determining that the appellant had waived his right under section 14 of the Charter by failing to object to the quality of the interpretation at the first opportunity during the hearing into his claim for refugee status.

 

[12]            The second complaint about the interpreter was that the interpreter was allegedly Croatian. Again, this was not raised before the tribunal and following the same reasoning as in paragraph 11 of this decision cannot be raised now to defeat the tribunal's decision.

[13]            Issue 2

Did the tribunal err in law by misconstruing evidence and by making findings which had no evidentiary basis and by ignoring uncontradicted evidence? Did the tribunal ignore evidence before it which may have substantiated the applicant's claim?

I have reviewed the argument of the applicant, the transcript of the hearing, the tribunal's decision and the applicant's record and I cannot agree that the Board erred in these respects.

[14]            Issue 3

Did the tribunal err in law by concluding that human rights monitoring agencies faithfully continue to follow and report on all incidents of abuse, discrimination and persecution without any evidence before it on that issue?


The applicant submitted that the Board did not consider all of the evidence. A board need not mention every piece of evidence in its decision, but it must address the evidence that could have an impact on its decision. I am of the view that the Board did that in this case. The applicant also stated that the Board misconstrued the evidence with respect to the telephone calls to the applicant's sister and the documentary evidence. I have reviewed the transcript and the documentary evidence and I do not accept the submission that the Board misconstrued the documentary evidence.

[15]            The applicant also stated that the Board committed an error of law by stating that the monitors and organizations " . . .report on all incidents . . .". I agree that there is no evidence to support this statement but I do not believe that this statement in any way effected the decision. This was not a situation where the Board used its conclusion on this point to depreciate the weight to be given to the applicant's actual testimony. This was not central to its decision as the decision was based on a lack of evidence to establish that the applicant was a Convention refugee.

[16]            The applicant submitted that the Board missed some of the evidence. In my review of the decision and the evidence, I have not been persuaded that this is the case. The Board directed its mind to all of the evidence necessary to reach its decision.

[17]            Issue 4

Was the conduct of the tribunal such as to deny the applicant's right to natural justice and a fair hearing and did the tribunal's conduct give rise to a reasonable apprehension of bias?

The applicant submitted that she was denied a fair hearing due to a number of factors, including the following:

1.          Rushing the hearing;


2.          Chairman's conduct towards applicant's solicitor;

3.          Leading questions;

4.          Disclosure of witness name;

5.          Board cross-examined;

6.          Climate at hearing was confusing;

7.          Child guidelines.

[18]            Rushing the hearing

Although the Chairman did mention at the beginning of the hearing that the hearing might be able to be completed in a shorter period of time as the Board accepted all of the information in the narrative, this to me is not rushing the hearing. As well, the other Board member told the applicant's counsel that expediency was not a priority for the Board and that the Board was not pressing her for time. Counsel stated that she understood and the Chairman stated, "No. We're here all day.". There is another reference by the Chairman when he said, "Briefly sir. The panel is moving on to 3:00, its next hearing, can you imagine". This was after the applicant's counsel had presented her argument and this remark was made to the RCO. As well, after the RCO made his submissions, the applicant's counsel presented her reply.

[19]            Chairman's conduct towards applicant's solicitor


I have reviewed the transcript and I cannot find that the Chairman's conduct towards the applicant would cause this Court to intervene. The Chairman allowed the applicant's solicitor to present her case and in fact, complimented her on the tabbing of her documents. The Chairman did ask questions and directed the hearing, but that is his right to do. The Chairman did say to the applicant's solicitor, "Are you a lawyer?". There probably was a better way to address the applicant's counsel in response to counsel's question concerning leading her witness with respect to a person's name, but I do not accept that this caused the applicant to have an unfair hearing.

[20]            Leading questions

The tribunal can set its own procedures and is not bound by the technical rules of evidence. It was certainly within its authority to rule that leading questions should not be used. Even if the Court was inclined to rule otherwise, the tribunal's ruling, based on the evidence in this case, is certainly a ruling the tribunal was entitled to make.

[21]            Disclosure of witness name

I agree with the applicant that the practice note requires an order however, the Board's ruling was not that the name could not be disclosed but that counsel could get evidence as she wished in a non-leading fashion.

[22]            Board cross-examination

A review of the transcript shows that the Board asked questions, but it does not show that the Board cross-examined.

[23]            Climate in hearing was confusing

I do not agree, after reading the transcript of the hearing, that the climate at the hearing was confusing.

[24]            Child guidelines

The guideline for child refugee claimants states that the procedure used by the CRDD for an adult claimant may not always be suitable for a child claimant (applicant's application record, page 44). As well, the guidelines state that the process to be followed and the role of the various participants should be explained. The questioning of a child should be sensitive. In this particular case, a designated representative was appointed as required by law and the applicant had counsel. The Board failed to advise the applicant of the process to be followed and the role of the various participants at the hearing. A review of the transcript of the hearing shows that the questioning of the applicant was done in a sensitive manner and the applicant answered the questions posed to her. The applicant's main complaint seems to be that her counsel was not allowed to ask her leading questions. The guidelines do not say that leading questions are allowed , but it seems reasonable that in some cases, leading questions may be necessary to elicit the evidence. However, in the present case, the applicant did not appear to need leading questions to give her testimony. She appeared from the transcript to be able to answer all questions put to her. Although the guideline was not fully applied in this case, I am of the view that this did not result in any prejudice to the applicant.


[25]            I am of the opinion that the applicant was not deprived of her rights to natural justice nor of her right to a fair hearing. I am of the further opinion that the Board's conduct did not give rise to a reasonable apprehension of bias.

[26]            The application for judicial review is therefore dismissed.

[27]            The applicant proposed the following questions for certification as serious questions of general importance:

1.          Does the CRDD Tribunal breach the requirements of fairness and natural justice when it does not comply with its own procedural guidelines for hearing cases involving minor claimants?

2.          Does the CRDD Tribunal breach the requirements of fairness and natural justice when it does not permit evidence to be led in the case of a minor claimant?

3.          Is there any requirement which would obligate the claimant at a CRDD hearing to advise the RHO prior to the hearing: (1) the names of persons about whose persecution the claimant is aware and relies on as persons similarly situated and; (2) provide a summary of their evidence?

[28]            I have considered the serious questions of general importance proposed for certification by the applicant and I am not prepared to certify these questions.

ORDER

 

[29]            IT IS ORDERED that the application for judicial review is dismissed.

     

                                                                             "John A. O'Keefe"            

                                                                                               J.F.C.C.                     

Ottawa, Ontario

January 31, 2003

              

                        FEDERAL COURT OF CANADA

                                    TRIAL DIVISION

   NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                  IMM-1656-00

STYLE OF CAUSE: STOJANKA GAJIC

- and -

THE MINISTER OF CITIZENSHIP

AND IMMIGRATION

                                                     

PLACE OF HEARING:                                 Toronto, Ontario

DATE OF HEARING:                                  Wednesday, September 11, 2002

REASONS FOR ORDER AND ORDER OF O'KEEFE J.

DATED:                     Friday, January 31, 2003

APPEARANCES:

Milena Protich

FOR APPLICANT

Jeremiah Eastman

FOR RESPONDENT

SOLICITORS OF RECORD:

Giffen Lee

Suite 500, Commerce House

50 Queen Street

Kitchener, Ontario

N2H 6M3

FOR APPLICANT

Department of Justice

Suite 3400, Box 36

130 King Street West

Toronto, Ontario

M5X 1K6

FOR RESPONDENT