Aldarwish v. Canada (Citizenship and Immigration)

Aldarwish v. Canada (Citizenship and Immigration)
Court (s) Database
Federal Court Decisions
Date
2019-10-09
Neutral citation
2019 FC 1265
File numbers
IMM-268-19
Notes
A correction was made on October 18, 2019.
Decision Content
Date: 20191018
Docket: IMM-268-19
Citation: 2019 FC 1265
Ottawa, Ontario, October 18, 2019
PRESENT: Mr. Justice Annis
BETWEEN:
NOORA ALDARWISH
RUAA AL-SOUDANI
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
AMENDED JUDGMENT AND REASONS
I. Introduction
[1] The Applicant, Abd Al-Munaf Yousuf Aldarwish [the Applicant], and her minor daughter, Ruaa Ali Hilo Al-Soudani, together with the Applicant [the Applicants] are applying for judicial review pursuant to section 72 of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]. This application concerns a decision of the Refugee Appeal Division [RAD] of the Immigration and Refugee Board of Canada dated December 12, 2018. The RAD’s decision dismissed the appeal and confirmed the decision made by the Refugee Protection Division [RPD] that the Applicants are not Convention refugees or persons in need of protection.
[2] The RAD found that the RPD did not deny the Applicants adequate interpretation services and that the RPD did not err in its credibility assessment of the Applicants. For the reasons that follow, the application is dismissed.
II. Facts
[3] The Applicant left Iraq for Jordan in 1994 due to a family dispute centered on her parents’ inter-sect marriage, which led to attacks and threats against them. In 2005, the Applicant also entered an inter-sect marriage when she married a Shia man.
[4] The same paternal uncles, Saadi and Karim, who had attacked the Applicant’s parents for their inter-sect marriage, also threatened the Applicant. Saadi contacted the Applicant’s father by telephone and threatened him because his daughter had married a Shia man. He also contacted the Applicant’s sister in Sweden by telephone and threatened to kill the Applicant if she returned to Iraq.
[5] The Applicant’s first child, Basil, was born in Canada in 2010 while the Applicant accompanied her husband on a business trip when eight months pregnant.
[6] In August 2016, the Applicant and her two children travelled to Canada from Jordan on a visitor’s visa and then sought refugee protection.
[7] The Applicants fear persecution in Iraq on several grounds:
On the basis of their moderate and non-sectarian Islamic beliefs;
On the basis that the Applicant’s paternal Sunni uncles have threatened to harm her for marrying a Shia man and because her father is married to a Shia woman;
On the basis of membership in the particular social groups of women/girls who fear gender-related persecution in Iraq;
On the basis that their political opinion may be imputed as pro-Western because of their time here and because the Applicant’s son, Basil, is Canadian.
III. RPD’s Decision
[8] The main issue raised by the RPD was the Applicants’ credibility.
[9] The Applicants had alleged that they had never been back to Iraq since leaving in 1994. After being confronted during the RPD hearing with contrary evidence, the Applicant admitted she had lied on the basis of advice from her community and that she had been back to Iraq on that one occasion in 2013 to visit her sick brother-in-law. The RPD found that this misrepresentation “seriously undermines her credibility”, but that the single return did not render “incredible” her stated fear of return.
[10] The RPD also concluded that the Applicant was untruthful regarding her intent to have her son in Canada in 2010, and that this raised “other general credibility concerns”.
[11] The RPD further noted that the problems caused by the Applicant’s paternal uncles were before the regime change in Iraq and that her uncles must be in their late 60s or 70s. The RPD concluded that the risk that may have been present in 1994 was unlikely to continue in the same manner and that there was no reliable evidence that some of her uncles’ sons belonged to armed groups.
[12] The RPD also noted that the claimant’s husband’s family is in Baghdad and that they have had no contact from the Applicant’s uncles. This suggested to the RPD that their interest in harming the Applicants was no longer significant.
[13] Finally, the RPD found that letters from the Applicant’s sister regarding contact with a cousin in Iraq were insufficient in light of the Applicants’ willingness to deceive the panel.
IV. RAD’s Decision
A. New evidence
[14] The Applicants initially sought to admit the following new evidence before the RAD: (1) a letter from the Applicant’s husband; (2) a letter from the Applicant’s mother; (3) an annotated transcript of the RPD hearing; and (4) an interpreter’s affidavit regarding the quality of the interpretation before the RPD. The RAD rejected all of the proposed new evidence, but made findings in the alternative on items 3 and 4.
[15] The Applicants also moved to submit additional new evidence after their appeal record was perfected (under Rule 29 of the Refugee Appeal Division Rules, SOR/2012-257). Specifically, they sought to adduce: (1) a letter from the Applicant’s brother-in-law; (2) a letter from the Applicant’s sister; and (3) the Applicant’s parents’ Swedish refugee documents. The RAD also found this evidence inadmissible. This finding is not disputed herein.
B. Credibility
[16] Because of credibility concerns, the RAD found that the Applicants did not face a serious possibility of persecution from the Applicant’s father’s family in Iraq. In particular:
The RAD agreed that the misrepresentation regarding the Applicants’ return to Iraq in 2013 detracted from the credibility of her other allegations. The RAD also agreed that the RPD’s finding regarding the birth of the Applicant’s second child in Canada was also relevant and supported by evidence;
The RAD also agreed with the RPD’s conclusions regarding the ability of the uncles to harm the Applicants. The RAD concluded that the Applicants had failed to establish that the uncles had a continuing interest in harming them;
The RAD further affirmed the RPD’s treatment of the letters from the Applicant’s sister, namely that they contained an internal inconsistency and that the Applicant’s testimony regarding the letters was inconsistent and evolving; and
The RAD also gave no weight to the letters from the Applicant’s husband. The first dealt primarily with the situation in Jordan; the second discussed the reasons for the return to Iraq in 2013 but did not explain why the Applicant was afraid. The RAD gave little weight to the letter from the Applicant’s mother as it refers to events that occurred more than 13 years ago.
C. Objective basis
[17] The RAD agreed that it was an error for the RPD to fail to assess whether the Applicants faced an objective risk of harm upon return to Iraq because such risks would be present regardless of the veracity of the allegations concerning the Applicants’ family’s threats.
[18] However, the RAD concluded that there was no risk on the basis of gender. The RAD further found that concerns regarding the safety of children in Iraq are limited to ISIS controlled areas. Moreover, the RAD noted that the Applicant’s husband was a bread-winner and had demonstrated an ability to care for the family wherever they reside. Therefore he would likely accompany the family to Iraq with the result of significantly minimizing the risk of the Applicant and the children in returning there. The RAD also rejected the argument that the Applicants might face persecution because of mixed sect marriage, finding that the evidence shows that there is no significant risk for mixed sect couples and families in urban areas of Iraq.
V. Issues
[19] The Applicants submit that the application raises the following issues:
1. The RAD erred in applying the new evidence rule to the interpreter’s evidence;
2. Deficient interpretation at the RPD breach the Charter and procedural fairness;
3. The RAD erred in law in its assessment of the new evidence;
4. The RAD erred in its assessment of the Applicants’ credibility;
5. The RAD breached the Applicants’ right to be heard in failing to give notice where required;
6. The RAD erred in its assessment of the objective basis of persecution.
[20] I would restate the issues as follows:
1) The standard of review pertaining to the various issues;
2) In respect of the inadmissibility of new evidence and the adequacy of the interpretation evidence before the RPD,
a) whether the RAD erred in refusing to admit the new expert interpreter pursuant to sections 110(4) of the IRPA as evidence of a denial of a fair hearing by the RPD because the Applicants failed to raise the issue of interpretation at the earliest opportunity;
b) whether based on the RAD’s assumption that the interpretative evidence was admitted, the RAD erred in its statement of the required standard of interpretation of the Applicant being able to “adequately express herself and tell her story to the RPD”;
c) on the same assumption, whether the RAD ignored errors of interpretation described by the interpreter witness and failed to properly assess the adequacy of the interpretation; and
d) whether the RAD erred in refusing to admit the new evidence of the Applicant’s husband and mother, and pursuant to Rule 29 of the IRPA from the Applicant’s brother-in-law, sister and her parents’ Swedish refugee documents;
3) Whether the RAD erred in its assessment of the Applicant’s credibility;
4) With respect to the objective country conditions evidence,
a) whether the RAD was procedurally unfair in failing to provide notice of its factual finding that, upon removal, the Applicant would likely be accompanied by her husband, or
b) whether the RAD made an unreasonable finding based on the objective evidence that the Applicant and her daughter would not be at risk if removed to Iraq.
VI. Standard of Review
A. Distinguishing fact-finding weight and process errors
[21] The following passage from Kallab v. Canada (Citizenship and Immigration), 2019 FC 706 at paragraphs 31-34 describes the difference between weight assessment and process fact-finding errors (described in this Court as “reviewable errors”):
[31] The Board’s fact-finding errors may generally arise in two different circumstances. The first arises out of the manner in which a tribunal conducts the fact-finding process. It is described as a fact-finding process error [“process error”]. Issues of relevance and materiality of evidence typify a process error, among others. The second form of fact-finding error occurs in the weighing or assessment of the probative value of evidence to form a fact. This is described as a fact-finding assessment error [“assessment error”].
[32] Process errors are not to be treated with deference. They raise issues of fairness to be considered on a correctness standard. Process errors are well described in Judicial Review of Administrative Action in Canada, D. J. M. Brown & The Honourable J. M. Evans, 14:3520 [Judicial Review of Administrative Action], at 4:3420 under the heading “Other Fact-Finding Process Errors”, as follows with my emphasis:
As well, the duty of fairness imposes certain limitations on the manner in which an agency can conduct the fact-finding process. For instance, the agency may not prevent a party from tendering evidence that is relevant to the issues in dispute, nor can it receive evidence ex parte without disclosing it to the other party for rebuttal. In addition, whether a tribunal has erred either by admitting and relying upon irrelevant evidence, by purporting to take judicial notice of facts that were not notorious, by failing to make necessary factual findings to support a constitutional challenge, by wrongly drawing adverse inferences, by excluding relevant evidence, by failing to consider relevant evidence, including expert evidence, by failing to make relevant inquiries, by failing to resolve conflicts in the evidence or by genuinely misunderstanding the evidence, will usually all be decided by the reviewing court without deference to the decision of the administrative agency. Similarly, questions as to the burden and standard of proof are matters on which a reviewing court will usually substitute its conclusion for that of the agency, as it will where evidence is weighed without apparent regard to statutory presumptions.
[33] To clear up any confusion that may be attributed to the term “wrongly drawing adverse inferences” referred to in the above passage, the following cases were cited in support of this reference. They indicate that this form of process error does not involve the weighing of evidence, but rather entails issues of fairness:
• Audmax Inc. v Ontario Human Rights Tribunal, 2011 ONSC 315 (CanLII) (Superior Court of Justice, Divisional Court) at para 43: (adverse inference drawn from the employer’s failure to call a witness);
• Bajwa v Canada (Immigration, Refugees and Citizenship), 2017 FC 202 (CanLII) at para 70: (failure to provide a reasonable opportunity to disabuse the Visa Officer of her credibility concerns); and
• Walton v. Alberta (Securities Commission), 2014 ABCA 273 (CanLII) at paras: 143-7 (failure to follow Browne v Dunn (1893) 6 R 67, H.L. in cross-examination seriously weakens the Alberta Securities Commission’s inference as to credibility).
[34] The excerpted passage above sets forth the most common process errors encountered in Board decisions. They include: admitting and relying on irrelevant evidence, failing to consider relevant evidence that a party specifically raises, including expert evidence (which, as a pre-condition, must be initially admissible, per R v Mohan, [1994] 2 SCR 9, 1994 CanLII 80), genuinely misunderstanding the evidence (i.e. clearly misapprehending the evidence as opposed to interpreting or arguing as to its meaning). When the Board makes a factual finding without any supporting evidence at all, this might be classified under either heading as a weight-based error or a process error depending on the circumstances. In either case, the error is plain to see.
B. Jean Pierre v Canada (Immigration and Refugee Board), 2018 FCA 97 []
(1) Jean Pierre is binding on the Federal Court
[22] The Federal Court of Appeal stipulated in Jean Pierre v Canada (Immigration and Refugee Board), 2018 FCA 97 at paragraph 53 [Jean Pierre] that an administrative tribunal is entitled to deference with respect to its findings of fact and inferences of fact: Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3 (CanLII) at paragraph 40, [2015] 1 S.C.R. 161; Housen v. Nikolaisen, 2002 SCC 33 (CanLII) at paragraph 25, [2002] 2 S.C.R. 235 [Housen] . The same considerations in Housen apply to the review of an administrative tribunal’s role as a finder of fact and a maker of inferences of fact, as those discussed by the Federal Court of Appeal in Jean Pierre, as follows:
[53] This Court’s examination of the Board’s decision is constrained by the standard of review… An administrative tribunal is also entitled to deference with respect to its findings of fact and inferences of fact: Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3 (CanLII) at para. 40, [2015] 1 S.C.R. 161; Housen v. Nikolaisen, 2002 SCC 33 (CanLII) at para. 25, [2002] 2 S.C.R. 235. In Housen, the discussion with respect to the standard of review of inferences of fact arose in the context of a decision of a judge after a trial, but the same considerations apply equally to the review of an administrative tribunal’s role as a finder of fact and a maker of inferences of fact.
[Emphasis added]
[23] Accordingly, Housen is also binding on the Federal Court in regard to its review of weight based factual conclusions of quasi-judicial tribunals such as the RPD and RAD. The RAD fits the description of an administrative tribunal whose factual determinations should be reviewed on a stricter standard, although it normally does not conduct a hearing unless credibility issues arise based on new evidence. Nevertheless, its members are required to conduct their own de novo factual analysis. Its members are also informed of the evidence before the RPD, notably by listening to its recorded proceedings upon which they rely to assist in rendering factual conclusions. More substantively, the same policy reasons discussed below, that support a stricter standard of review of its factual findings, should similarly apply to the decisions of the RAD.
(2) A stricter non-interventionist deference is owed findings of fact
[24] The overall message in Housen was that appellate courts should adopt a highly non-interventionist approach for the review of trial judges’ finding of facts, inferences of fact and questions of mixed fact and law, in the latter case where the legal question is not extricable. The standard of review described to evaluate factual findings of trial courts is that of a “palpable and overriding error”. The term “palpable” was defined as an error that is “plainly seen”, Housen, paragraphs 4 and 5.
[25] It was similarly stated at paragraph 1 in Housen that the appellate court should not intervene in the trial judge’s finding of fact when “there was some evidence [my emphasis] upon which he or she could have relied to reach that conclusion.” This standard is similar to the admonishment not to reweigh the evidence: Canada (Citizenship and Immigration) v Khosa, [2009] 1 SCR 339 at paragraph 61, Kallab at paragraphs 63-64.
[26] The majority judges in Housen also provided great clarity in what is meant by an error that is plainly seen when it stipulated that the reviewing court should not apply a reasonability analysis to the inference-drawing step of an inferred fact. At paragraph 21, the majority specifically disagreed with the minority proposition on this question at paragraph 103 of the reasons that :
In reviewing the making of an inference, the appeal court will verify whether it can reasonably be supported by the findings of fact that the trial judge reached and whether the judge proceeded on proper legal principles... While the standard of review is identical for both findings of fact and inferences of fact, it is nonetheless important to draw an analytical distinction between the two. If the reviewing court were to review only for errors of fact, then the decision of the trial judge would necessarily be upheld in every case where evidence existed to support his or her factual findings. In my view, this Court is entitled to conclude that inferences made by the trial judge were clearly wrong, just as it is entitled to reach this conclusion in respect to findings of fact.
[Emphasis added]
[27] The Majority reasoning rejecting a reasonability analysis of the evidence supporting an inference was twofold. First, a standard required to review the reasonability of the inference was stated to be insufficiently strict:
First, in our view, the standard of review is not to verify that the inference can be reasonably supported by the findings of fact of the trial judge, but whether the trial judge made a palpable and overriding error in coming to a factual conclusion based on accepted facts, which implies a stricter standard.
[Emphasis added]
[28] Obviously, if the standard of review does not permit a review to determine whether an inference can reasonably be supported by the findings of fact, the same stricter test applies to the review of the evidence supporting an ordinary finding of fact. The standard is rather almost an impressionistic “palpable” one that strikes the court as an error that is clear, obvious and plainly seen.
[29] Second, drawing an inference entails impermissible assessing and weighing the evidence of the foundational facts, as stated in Housen at paragraph 22:
22 Second, with respect, we find that by drawing an analytical distinction between factual findings and factual inferences, the above passage may lead appellate courts to involve themselves in an unjustified reweighing of the evidence. Although we agree that it is open to an appellate court to find that an inference of fact made by the trial judge is clearly wrong, we would add the caution that where evidence exists to support this inference, an appellate court will be hard pressed to find a palpable and overriding error.
[Emphasis added]
[30] The bottom line is that the Court is not to engage in a reweighing of the evidence for any factual finding because it really amounts to a reasonability analysis to determine whether the finding, including the drawing of the inferred fact, is reasonable. The error must be palpable and overriding as one that is plainly seen. Examples would include those such as no supporting evidence of probative value, misapprehended evidence and similar errors that are plainly seen. Then they must be overriding in the sense that they foreclose on the necessity to otherwise consider the reasonableness of the decision.
(3) Questions of mixed fact and law should be reviewed on a similarly strict deferential standard
[31] The issue that remains unstated in Jean Pierre is whether the same deferential standard is owed to question of mixed fact and law made by the RPD. No mention was made of this category of factual finding in the decision, despite Housen clearly applying the same principles to the review of questions of mixed fact and law made by trial judges.
[32] The only exception to the stricter standard of questions of mixed fact and law admitted in Housen occurs when the legal question is extricable from the facts. An example of an extricable error of law in a question of mixed fact and law described in Housen occurs where the legal test requires the application of certain factors that are not considered by the decision-maker. This is in contradistinction to a situation where the trier of fact has considered all the evidence that the law requires and still comes to the wrong conclusion. The latter situation is an error of mixed law and fact and is subject to a more stringent standard of review, Housen at paragraphs 26 - 28.
[33] The issue takes on some significance when it is recognized that most of the conclusions mandated to be determined by the RPD are questions of mixed fact and law, or other factual and inferential findings of fact, i.e. “on evidence adduced in the proceedings and considered credible and trustworthy in the circumstances”, paragraph 170(h) of the IRPA. Determining whether the Applicant is credible, has a well-founded fear, or is at risk of cruel and unusual treatment, are all questions of mixed fact and law. Apart from process fact-findings and errors of law in applying a legal standard, these are questions of mixed fact and law. If the tenets of Housen apply, they can be overturned only when the error is plainly seen, and without a reweighing of the evidence so long as they are supported by some evidence.
[34] Logic suggests that the same standard of review that applies to findings of facts and inferential facts should be equally applicable to questions of mixed fact and law. There is no apparent substantive argument to treat the review of questions of mixed fact and law from other factual findings differently when determined by administrative tribunals than when considered in trials.
[35] Logically, the fact that the standard of review of palpable error does not apply to questions of mixed fact and law when the legal principle is extricable means that it should apply when it cannot be separated. As indicated in Housen at paragraph 28 when discussing this distinction, “[h]owever, where the error does not amount to an error of law, a higher standard [emphasis added] is mandated.”
[36] In other words, the test for reviewing facts (1) is more strict and (2) arrived at by a different process than that applied to questions of law, although both may fall under the “reasonability” standard of review. A reasonability analysis of the evidence does not apply to factual findings. If it did, it would be too interventionist as a standard contrary to fundamental policies that generally protect the repudiation of factual findings unless the error is plain to see.
[37] The court’s policy relating to factual findings of trial judges and administrative tribunals are similarly highly non-interventionist. It is just the frequent disregard for this principle that set the direction of the majority reasons in Housen: “While the theory has acceptance, consistency in its application is missing”, at paragraph 4, and “[w]hile this standard is often cited, the principles underlying this high degree of deference rarely receive mention”, at paragraph 10. The majority judges in Housen provided extensive policy grounds to support the highly non-interventionist approach required of courts to reviewing factual findings, see paragraphs 10 to 18. They generally fell under three headings: limiting the number, length and cost of appeals, promoting the autonomy and integrity of trial proceedings and recognizing the expertise of the trial judge and his or her advantageous position. These policies logically apply to factual findings of the RPD and RAD, Kallab at paragraphs 90 to 101. They, thereby, support the application of a stricter standard of review to mixed questions of fact and law made by administrative tribunals.
(4) Credibility findings are reviewed on the same standard, but the overwhelming advantage of the decision-maker must be acknowledge who enjoys the opportunity to observe witnesses and to hear testimony first-hand
[38] There is a line of jurisprudence in the Federal Court that states that credibility findings can only be overturned “in the clearest case of error”, thereby suggesting that a stricter standard should apply to ordinary findings of fact: Revolorio v Canada (Minister of Citizenship and Immigration), 2008 FC 1404, Njeri v Canada (Minister of Citizenship and Immigration), 2009 FC 291 at paragraph 11, Ramos Aguilar v Canada (Citizenship and Immigration), 2019 FC 431at paragraph 29, Odia v Canada (Citizenship and Immigration), 2018 FC 363 at paragraph 6.
[39] This distinction of a stricter standard for credibility findings is mostly rejected by Court in Housen at paragraph 24 in commenting on support for appellate courts deferring to all factual conclusions made in Toneguzzo-Norvell (Guardian ad litem of) v. Burnaby Hospital, 1994 CanLII 106 (SCC), [1994] 1 S.C.R. 114, as follows:
25.
…
I agree that the principle of non-intervention of a Court of Appeal in a trial judge’s findings of facts does not apply with the same force to inferences drawn from conflicting testimony of expert witnesses where the credibility of these witnesses is not in issue. This does not however change the fact that the weight to be assigned to the various pieces of evidence is under our trial system essentially the province of the trier of fact, in this case the trial judge
We take the above comments of McLachlin J. to mean that, although the same high standard of deference applies to the entire range of factual determinations made by the trial judge, where a factual finding is grounded in an assessment of credibility of a witness, the overwhelming advantage of the trial judge in this area must be acknowledged. This does not, however, imply that there is a lower standard of review where witness credibility is not in issue, or that there are not numerous policy reasons supporting deference to all factual conclusions of the trial judge. In our view, this is made clear by the underlined portion of the above passage. The essential point is that making a factual conclusion, of any kind, is inextricably linked with assigning weight to evidence, and thus attracts a deferential standard of review.
[Emphasis added]
[40] Context therefore matters when the decision-maker enjoys the opportunity to observe witnesses and to hear testimony first-hand. This is what McLachlin J. was referring to when acknowledging the overwhelming advantage of the decision-maker. Standards of review such as those expressed “in the clearest case of error”, or “the clearest of cases” applied to credibility findings do not misstate this advantage. But overall, if they do not imply a lower standard of review where witness credibility is not an issue, such standards should be judged as similarly strict as other expressions employed in Housen. These include “plainly seen”, “obvious”, or “clearly wrong”, all of which represent the high degree of non-interventionist deference owed to decision-maker’s findings of fact.
[41] Additionally, because most credibility findings are multifaceted, often representing an accumulation of different inconsistencies, improbabilities and observations described in the reasons, concluding that plainly seen errors are found in one or even two of the supporting rationales, may not be sufficient to overturn the credibility finding unless determined to be “overriding” in effect.
(5) Categories of errors
[42] To terminate this discussion, errors of administrative tribunals subject to review may broadly be said to fall into three categories. First are procedural or fairness issues pertaining to the decision-making process as a whole, i.e. bias of the decision-maker, or failure to know the case to be met. Similar process fairness issues (reviewable errors) apply to factual findings as described above. Both categories of fairness issues generally attract a correctness standard. The second group of errors relate to evidence assessment findings of fact, inferences of fact and questions of mixed fact and law where the legal question is not extricable. They will attract a reasonability standard of review, but with a stricter more non-interventionist threshold and form of analysis that permits their setting aside only when the error is plainly seen. The third category comprises errors of law, which for administrative tribunals, depending upon their nature and context may be subject to either a reasonableness or correctness standard of review.
C. The Standard of review applied to the issues raised by the Applicants
(1) Issue 2) a), the RAD’s assessment of the admissibility of new evidence
[43] With respect to Issue 2) a), the RAD’s assessment of the admissibility of new evidence is reviewable on a reasonableness standard (Canada (Citizenship and Immigration) v Singh, 2016 FCA 96 at paragraph 9 [Singh]). The RAD may admit new evidence under section 110(4) of the IRPA only where it arose after or was not reasonably available at the time of the RPD’s decision, or in circumstances where the Applicants could not reasonably have been expected to have presented it to the RPD.
[44] This said, I agree with the following proposition in A.N. v Canada (Citizenship and Immigration Canada), 2016 FC 549 [A.N.] at paragraph 23 that:
[23] … “[t]he restrictions on presenting evidence under subsection 110(4) of the IRPA and Rule 29(4) of the RAD Rules should not necessarily be applicable when the evidence presented on an appeal to the RAD raises issues about the procedural fairness of the proceeding before the RPD and not about the credibility, facts, or substance of a refugee’s claim.”
[45] Conversely, however, the RAD’s decision in assessing evidence in relation to procedural fairness must nevertheless be reviewed on a reasonableness standard. The issue is whether the RAD erred in its factual conclusion that the Applicants failed to raise concerns with the RPD about the interpretation at the earliest reasonable opportunity.
[46] The Court in A.N. specifically noted that this was not an issue before it at paragraph 23, as follows:
[23] … Even if it could be said that such restrictions may be applicable, the evidence of the Applicant's difficulty with the hearing being held in Uyghur and her Aunt's conflicting interests only emerged after rejection of the Applicant's claim and she could not reasonably have been expected in the circumstances of this case to have presented evidence of her Aunt’s conflict of interest until it was revealed and disclosed to her.
[My emphasis.]
[47] The admissibility of new evidence alleging procedural unfairness under section 110(4) of the IRPA still requires the demonstration of the factors needed to establish an allegation of unfairness, i.e. – no waiver of inadequate interpretation. This is an issue which is determined on the basis of events occurring before the RPD as described in the proceedings.
[48] In essence, the issue regarding the admissibility of the interpreter’s evidence comes down to the submission by the Applicants to set aside a finding of fact by the RAD. It relates to the assessment and weighing of evidence to support the factual conclusion that no reasonable complaint of inadequate interpretation was made at the first opportunity (Mohammadian v Canada (Minister of Citizenship and Immigration), [2000] 3 FC 371, 2000 CanLII 17118 (FC) [Mohammadian] at paragraph 28: “It will be a question of fact in each case whether it is reasonable to expect a complaint to be made [emphasis added].” This finding of fact can only be set aside if the error is plainly seen and overriding.
[49] With respect to Issue 2)c), assuming both the admission of the interpretive evidence and the reasonableness of the standard of interpretive adequacy, the RAD’s finding of fact that the Applicant was able to adequately express herself and tell her story to the RPD can only be set aside where plainly seen and overriding.
[50] With respect to Issue 2)d), the admissibility of new evidence is reviewable on a reasonableness standard (Singh above).
[51] Issue 3 concerns the adverse credibility finding of fact of the RAD. The Court can only overturn an assessment of the Applicant’s credibility finding where the error is plainly seen.
[52] With respect to Issue 4)a), whether the RAD was procedurally unfair in failing to provide notice of its inferential factual finding that, upon removal, the Applicant would likely be accompanied by her husband, is an alleged “process error” of a finding of fact. It is subject to a standard of correctness (Kallab at paragraphs 29-34 citing Judicial Review of Administrative Action in Canada, D. J. M. Brown & The Honourable J. M. Evans, 14:3520).
[53] The Applicant also argues regarding Issue 4)b), that the RAD’s inferential finding of fact that her husband would return to Iraq was speculative and without support in the evidentiary record. The foundational facts and evidence in support of the impugned inference are subject to the same rule pertaining to the review of facts that they may only be overturned in the clearest of cases as is the drawing of the adverse inference and is of an overriding effect.
[54] If the inference of the husband’s accompaniment is sustained, the Issue at 4)b), whether the Applicant and her daughter would be at risk if removed to Iraq, is similarly an assessment finding of fact, or mixed fact and law, either of which can only be overturned in the clearest of cases.
VII. Analysis
[55] By way of introduction, the Court commends the RAD for the thoroughness, justification, transparency and intelligibility of its reasons. It responded to each of the Applicants’ numerous submissions with detailed and comprehensive reasons. The fact that the Applicants raise so many issues in no way reflects on the quality of the RAD’s reasons, which demonstrate a thorough understanding and response to the facts and law.
A. Whether the Applicants failed to raise the issue of interpretation at the earliest opportunity with the RPD
[56] The Applicants’ initial submission was that “the RAD did not definitively decide the issue of waiver and did not establish the facts necessary for the application of the doctrine of waiver.” They argue that it is incumbent on the party that relies on the doctrine of waiver to establish the facts necessary for its application, advancing this submission as an issue of onus that the RAD did not meet.
[57] I disagree. Justice Pelletier described what constituted waiver in Mohammadian at paragraph 11, i.e. “[w]aiver (in the form of absence of complaint before the CRDD) …” The RAD’s opening statement on this issue described its finding that “the Appellants failed to raise the issue of interpretation at the earliest opportunity.”
[58] Finally, on this issue the Applicants contend that they never waived their right to adequate interpretation “because they were not aware of the ubiquity of the translation errors until after the fact”. This submission is not responsive to the findings of the RAD.
[59] The RAD provided extensive reasons over two lengthy paragraphs, with explicit references, to exchanges at the RPD’s two hearings. For instance, at the beginning of the first hearing, the RPD member put the Applicant on notice to raise concerns about interpretation and to inform the RAD if she had any difficulty communicating with the interpreter.
[60] The RAD also pointed out the Applicant’s statement at the beginning of the second sitting, which occurred several weeks after the first hearing date, where she testified: “I expect I am anticipating that I am more lucky this time with the interpreter”. The errors in question are said to have arisen in the first hearing. It is also worth noting that the RPD member indicated at the conclusion of the first hearing, when discussing issues to be addressed in final submissions, that “credibility is certainly still an issue”, particularly as she had been caught in an intentional and serious misrepresentation. Credibility is the principal area of contention said to be adversely affected by the alleged inadequate interpretation
[61] The RAD member notes that the Applicant’s counsel would have heard the foregoing statement that she was “unlucky”. It would have provided a basis during the second hearing to raise the issue to investigate the quality of the translation during the first hearing. Additionally, if the client had such concerns that are intended to have been described being unlucky with the first interpreter, she should have addressed them with her counsel who thereafter could have raised them with the RPD member.
[62] I find this conclusion consonant with the principle of waiver as described in Mohammadian at paragraph 17, as follows:
[17] … A more accurate statement might well be that where the applicant is represented by counsel, and where there are manifest problems with interpretation, the claimant cannot say nothing at the hearing, and then raise the matter as a ground of relief in a subsequent application.
[63] Given these concerns by the Applicant, the RAD also found that there was no reasonable explanation why the affidavit from the interpreter, including the examination of the RPD transcript, could not have been provided before the several weeks it took the RPD to reject the claim.
[64] The RAD’s conclusion that the Applicant and her counsel failed to raise questions about the quality of interpretation at the earliest reasonable opportunity is supported by the evidence with no error raised that would provide a ground to set it aside.
[65] Not having met the prerequisite requirements to support a submission of inadequate interpretation, the Applicant similarly failed to meet the statutory requirements for admissibility as new evidence. In other words, evidence that is inadmissible cannot be proffered as new evidence for appeal. Similarly, considerations of procedural unfairness are irrelevant to the RAD’s decision to refuse admission in an interpreter’s affidavit when the preconditions for its admission are not met.
B. Whether the RAD erred in its statement of the required standard of an adequate interpretation of the Applicant being able to “adequately express herself and tell her story to the RPD”
[66] Despite its ruling on waiver, the RAD proceeded to consider the interpretive evidence and concluded that “the evidence shows they received adequate interpretation and that they were able to adequately express themselves and tell her story to th