Date: 20011217
Docket: IMM-919-01
Neutral citation: 2001 FCT 1391
BETWEEN:
NILDA GUADALUPE LARA and JOSE DANILO LARA
(Applicants)
and
MINISTER OF CITIZENSHIP AND IMMIGRATION
(Respondent)
[1] This application is for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board"), dated February 9, 2001 in which the Board concluded that the applicants are not convention refugees (the "Decision").
[2] The Decision is based on three primary credibility findings (the "Credibility Findings"). Each involves the omission of significant facts from the applicants' Personal Information Forms ("PIFS"). The applicants blamed the omissions on the two interpreters who helped them prepare the narrative portions of their PIFS.
The Facts
[3] The applicants are a brother and sister who are citizens of El Salvador. They allege a well founded fear of persecution which has its roots in the female applicant's rejection of the unwanted amorous attentions of a police officer named Pedro.
[4] The applicant's story unfolded in this fashion: After his initial rejection, Pedro threatened the female applicant and her family and stalked her house. Several months later, he accosted her and tried to touch her but she escaped (the "April Incident"). Thereafter, both applicants were intercepted by Pedro and another officer. Pedro grabbed the female applicant and tried to kiss her. After the male applicant hit Pedro, he was beaten and threatened by both police officers.
[5] The male applicant reported this incident to a judge but was asked to bring more evidence of the assault. Shortly afterwards, Pedro and two other officers went to the applicants' family home and alleged that the applicants were former members of the Farabundo Marti Liberacion Nacional (the "FMLN"). The officers apparently returned a second time with a warrant for the applicants' arrest. They were not home at the time of this visit and left El Salvador when they learned of the warrant.
[6] At the hearing, the applicants testified about the arrest warrant and identified Pedro as one of the officers who came to their family home. They also testified about the April Incident. However, none of these three matters (the "Omissions") were described in the applicants' PIFS, even though they testified that they had been discussed with their interpreters.
[7] Thereafter, the following exchange took place between applicants' counsel and the Board.
Counsel:: At this point, there are so many things that were not mentioned in the PIF, and they insist they mentioned it to the interpreter, and I know it's very important. I guess I need direction whether we should just adjourn the hearing and call the interpreter as a witness.
Board: Is it an interpreter you know very well?
Counsel: Not very well. I have only worked with him in this case, only once.
Board: It is as you wish, Mrs. Shukuru. I don't know what to tell you. If you feel that it is very important - - -
Counsel: The first incident that Nilda mentioned about - - the April incident, that one is not so significant in terms of their decision to leave.
Board: No.
Counsel: It's just - - it was just explaining the events of what happened.
Board: Chronology.
Counsel: Yes. And sometimes people do fix it on other events, and the sister - - I asked the sister, and she is willing to come in and explained that it was mentioned. She - - they mentioned that to her. But I didn't feel that it was that significant. But in terms of the arrest warrant, this is significant, and their knowledge of English is - - her knowledge is basically non-existent. He has a limited knowledge of English. And knowing that they couldn't read this in English, I feel that - - -
Board: But how does it usually work? They do it in Spanish, and then it's translated into English?
Counsel: It's translated to me in English.
Board: And it's translated to back to them in Spanish?
Counsel: Yes, it's - - when we meet, they just go through the incidents again, what happened.
Board: My only worry is that is it fair to ask the interpreter if he does remember?
Counsel: Yes.
Board: They probably do many of those.
Counsel: Yes.
Board: And he has signed - - it's up to you.
Counsel: Q. Did you mention the warrant to your sister, because your sister understands - - she understands English?
A. Yes, I did mention that, because my sister has knowledge of everything that has happened. We have mentioned it to her.
Counsel: In that case, the sister is here. I haven't spoken to her. So she could probably come and give us - - because I do agree that the interpreter who did this - - we used two interpreters, one in - - it's a long time, almost a year.
So with the permission of the Board, I would like to call the sister
as a witness.
Board: Yes.
[my emphasis]
The Issue
[8] Against this background, the issue is whether the Credibility Findings should be set aside because of a failure of natural justice. It is alleged to be have occurred when the Board did not adjourn the hearing to allow the applicants' counsel to call the interpreters as witnesses. Counsel had hoped that they would be able to corroborate the applicants' explanations for the Omissions.
[9] Applicants' counsel today (who was not before the Board) characterizes the above-quoted exchange between the Board and counsel as the denial of natural justice. She says that the Board failed to rule on the adjournment request and pressured applicants' counsel not to call the interpreters because she felt their evidence would likely be of little value. She submits that, given that the Board and applicants' counsel both recognized the importance of the Omissions and the role the interpreters might play in explaining them, the Board was required to adjourn. Indeed, she goes further and says that, even if I were to conclude that the Board did not pressure counsel and that counsel freely decided to abandon her request for an adjournment, I should still conclude that the Board ought to have adjourned and required counsel to call the interpreters. This is so because credibility was at the heart of the case and only the interpreters could say whether the applicants' mentioned the Omissions at the time their PIFS were prepared.
[10] Counsel for the respondent submits that there was no breach of natural justice. She says that the Board acknowledged the importance of hearing from the interpreters and simply questioned whether their evidence would be helpful. When the Board said "it's up to you", it ruled on counsel's request and clearly indicated that the adjournment was available. However, counsel chose not to pursue that option.
Discussion
[11] In my view, this is not a case in which the Board bullied counsel or denied counsel an adjournment. Accordingly, the only question is whether the Board had a duty to adjourn and ask for the interpreters' evidence in spite of counsel's decision not to call the interpreters.
[12] I have concluded that there was no such duty in the circumstances of this case. Where an applicant is represented by counsel, it is counsel's responsibility to adduce the applicant's evidence and it is the Board Member's responsibility to assess the evidence. There is no duty on the Board Member to take the case away from counsel by deciding what evidence ought to be called on an applicant's behalf.
Conclusion
[13] In view of my conclusion that the Board did not breach the requirements of natural justice, the Credibility Findings stand. That being the case, the balance of the submissions made by counsel for the applicants need not be considered because they would not affect the outcome of this application.
[14] For all these reasons, the application will be dismissed.
Certified Questions
[15] Counsel for the Applicants submitted the following questions for certification:
1. Is it a reviewable error of law when a Board panel does not adequately consider the IRB Gender Guidelines in gender related Convention refugee claim?
2. Is it a reviewable error of law when a Board panel only refers to the Gender Guidelines in its reasons but does not provide reasons as to why the Guidelines were not followed in a gender related Convention refugee claim?
3. Is it a reviewable error of law for a Board panel to conclude that a woman who has not had prior relationship with her agent of persecution cannot be said to belong to a particular social group within the definition of Convention refugee in subsection 2 of the Immigration Act and within the principles set out in Ward?
[16] These questions all relate to the Board's determination that the applicant was not a member of a particular social group. I indicated at the outset of the hearing that, although the Board had likely erred in its definition of the female applicant's social group, that error became immaterial if the Credibility Findings were upheld. Accordingly, certification is denied because none of the questions could be dispositive on an appeal.
"Sandra J. Simpson"
JUDGE
Ottawa, Ontario
December 17, 2001