Date: 20040414
Docket: IMM-4126-02
BETWEEN:
SUZETTE GLORIA ANTONIO NETO and
IMARA PATRICIA NETO CARLOS
Applicant,
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent,
REASONS FOR ORDER AND ORDER
[1] The Applicants are a mother (the "Applicant") and her minor daughter (the "minor Applicant"), who claim a well-founded fear of persecution on the ground of a particular social group, namely the wife and child of a man suspected of being a traitor in Angola. They also claim to be persons in need of protection from being tortured and at risk of losing their lives or being subjected to cruel and unusual punishment in Angola. They seek judicial review of the decision of the Refugee Protection Division of the Immigration and Refugee Board (the "IRB") dated July 16, 2002 wherein the IRB found that they are not Convention refugees and are not persons in need of protection on the basis that their allegations were not credible.
[2] The Applicant gave evidence that her husband was killed by government soldiers, their house was destroyed, her daughter was injured, and she herself was raped by soldiers. In oral testimony, she said that she also received a number of threatening letters telling her that she knows what happened to her husband, and that she will be next. She says that she fears being tortured if she and her daughter return to Angola.
[3] The IRB found that, if the Applicant's evidence is found to be credible, the refugee claim made would succeed. However, the IRB rejected the claim on a finding that "there were such inconsistencies between the claimant's oral testimony, her written testimony [the PIF], and information given at the port of entry [on November 25, 2001] as to suggest strongly a fabricated claim'' (Decision p. 2). In reaching this conclusion, the IRB gave considerable weight to the port of entry notes of a conversation between a senior immigration officer and the Applicant through a Portugese interpreter. With respect to the port of entry notes the IRB said as follows:
The panel recognizes that it has placed reliance on the POE notes to find the claimant not credible. This reliance has of course not been exclusive. Significant omissions from the PIF and significant variances between the claimant's oral and written testimony have rounded out the pattern of a claim that has been embellished beyond the facts gleaned from the port of entry interview.
I have considered a number of pronouncements from the Federal Court respecting port of entry notes. For instance, it is not a breach of natural justice for a decision-maker to be provided with such documents even if they contain prejudicial information, as long as the claimant has had an opportunity to respond. All that is required is timely disclosure that is meaningful for the claimant in the circumstances. In the instant case the notes were disclosed well in advance of the hearing to both the claimants and Counsel. I also note that the courts have cautioned that it is "poor practice" to find the notes to be accurate on "pure faith." The Board should inquire into such matters as the context of the interviews and the degree to which the person understood the questions being put. Although the claimant cited translation problems, she also did this when confronted with inconsistencies in her PIF. There is no doubt the interview was concluded with an interpreter and her declaration was read back to her before she signed it. I also established, given that the claimant alleges she was raped that a female Senior Immigration Officer conducted the interview. It [sic] terms of the context of the interview, it was clearly about the claimant making a refugee claim. Finally, the court has noted that, once admitted, it is up to the tribunal to assess the probative value of the port of entry notes i.e. their weight and reliability. As noted, the notes do not stand on their own. I have given them considerable weight because the claimant's oral and written testimony contained internal inconsistencies and embellishments. [Footnotes omitted] [Decision, pp.7-8]
[4] As I expressed during the course of the oral hearing, if the record of the port of entry conversation as represented by the port of entry notes is proved to be unreliable, since it forms an integral part of the negative credibility analysis, the IRB's decision cannot stand.
[5] During the course of the testimony before the IRB, the Applicant stated that, with respect to a particularly important statement she made at the port of entry which tends to undermine her subjective fear of persecution, "I think the translator made a mistake" (Tribunal Record p. 193). The IRB discounted this objection by stating that "however, the notes indicate that the claimant was allowed to read the declaration before affirming that all statements were true and correct" (Decision, p.4).
[6] In my opinion, the IRB statement just quoted forms a patently unreasonable basis for discounting the Applicant's evidence since it cannot be known what was said by the Applicant to the interpreter, or what was said by the interpreter to the Applicant, since both sides of the conversation occurred in Portugese. As the translation which forms the port of entry notes is not appended to an affidavit or other declaration of accuracy, and since the identity of the interpreter is not known, and since the qualifications of the interpreter are not known, I find it is a reviewable error for the IRB to make an assumption that the translation is accurate, particularly in the face of the objection as to it's accuracy voiced by the Applicant.
[7] In addition, in my opinion, the concern raised by the Applicant respecting the accuracy of the translation should have been amplified in the mind of the IRB by the nonsensical nature of the following passage in the port of entry notes:
Q:Who looked after your daughter while you worked all those hours?
A: I left my daughter to play in a yard to play with other children.
Q: Where did the clothes come from?
A: I purchased the clothing from a warehouse, to sell on my own. The clothing came from outside provinces of Africa.
Q: Who are you travelling with lately?
A: My daughter - Imara Paticia NETO CARLOS she is 4 years old
Q: Are you married?
A: No, my boyfriend is deceased. He died on 3 March 2001
Q: Do you have any children? If so, what is each child's true and correct name?
A: No
[Emphasis added] (Applicant's Application Record, p. 56)
Obviously, there is a translation error in the question "Do you have any children?", since the Applicant had already spoken about her daughter before the question was asked. Counsel for the Respondent submits that the error can be corrected by simply adding the word "other". I cannot add words that are not there. On its face, the translation is unreliable given this easily identified inaccuracy. The question which naturally arises is: how much more of the translation is unreliable?
[8] I find it is patently unreasonable for the IRB to use the port of entry notes as evidence to, in effect, call the Applicant a liar without a verifiable answer to this question. As a result, I find that the IRB's decision was made in reviewable error.
ORDER
Accordingly, I set aside the IRB's decision and refer this matter to a differently constituted panel for redetermination, with the direction that this decision be taken into consideration.
"Douglas Campbell"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4126-02
STYLE OF CAUSE: Suzette Gloria Antonio Neto and Imara Patricia Neto Carlos v. The Minister of Citizenship and Immigration
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: April 13, 2004
REASONS FOR ORDER
AND ORDER: The Honourable Mr. Justice Campbell
DATED: April 14, 2004
APPEARANCES:
David Soper FOR APPLICANT
Sharlene Telles-Langdon FOR RESPONDENT
Department of Justice
Winnipeg, Manitoba
SOLICITORS OF RECORD:
David Soper FOR APPLICANT
Barrister & Solicitor
Winnipeg, Manitoba
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada