Date: 20000908
Docket: IMM-2892-99
BETWEEN:
Enter Style of Cause just after [Comment] code
-
BALJINDER SINGH BAINS
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
McKEOWN J.:
[1] The applicant seeks judicial review of a decision of the Convention Refugee Determination Division ("CRDD") the Board, dated May 20, 1999, in which the Board determined that the applicant was not a Convention Refugee.
[2] The issues raised in this application are whether it was reasonably opened to the Board to find that the applicant was not a Convention refugee due to his overall lack of credibility.
[3] With respect to alleged errors in interpretation, the applicant supplied an affidavit from Sanjay Gandhi, who criticized the interpretation on the following points:
Also, the interpreter made mistakes. For instance, the interpreter made several mistakes during the testimony (there were several questions and answers) concerning the "omission" of whether the applicant participated in AISSF activities and whether the applicant had done anything for AISSF.
I note that Mr. Gandhi does not describe himself as an interpreter. There is nothing in that paragraph which indicates an error in interpretation.
[4] The applicant was then asked why Gurdal Singh would visit the applicant at his farm. Mr. Gandhi deposed that the applicant testified in Punjabi as follows:
As a matter of fact, when the Khalistan movement was going on then all the boys used to meet in Sikh temple and talk about the movement.
But the interpreter translated this as:
When the Khalistan movement was going on we used to go to the Sikh Temple and we met there for the boys.
[5] Neither answer addresses the question which was asked and there is no interpretation problem. The applicant also submitted concerns about interpretation with respect to the second illustration given by the Board when they stated:
When asked as to why Gurlad Singh would suddenly appear after two years of no contact, and stay with the claimant, he gave various, hesitant responses: the claimant went to the temple after he left college; he used to visit the boys Sikh temple, he did know why Gurlad Singh would come to him.
The applicant submits the Board reached this conclusion because of a mistake made in the interpretation.
Mr. Gandhi states:
A few questions later the applicant was asked whether the applicant was surprised to see Gurdal Singh, was he surprised that Gurlad Singh came to see him after two years. The interpreter said that the applicant replied as follows: "after I left the college and during that time I used to go to the Sikh Temple, there I came to know that all those they used to come to Sikh Temple there".
[6] In fact, what the applicant said was as follows, according to Mr. Gandhi:
When I left the College then I used to go to Sikh Temple, and I will hear about him from people there, all the people who came there talk to him.
[7] The lawyer who acted for the applicant at the Board hearing stated the following in her affidavit:
A few questions later the applicant was asked if he was surprised that Gurdal Singh came to see him after two years. The applicant said that he used to go the Sikh temple during that time (the two years) and he came to understand that "all those" (which I took to mean Gurdal Singh and his friends) used to come to the Sikh temple.
[8] Again, in all three versions of the testimony, not one answered the question that was asked. There is also no material difference in the three versions. Accordingly, there were no interpretation problems which would engage the Charter as set out by the Supreme Court of Canada in R v. Tran, [1994] 2 S.C.R. 951. The applicant's former lawyer stated in her affidavit that the interpreter's English was somewhat "Indianized". That is not sufficient to bring into play the Tran decision. Translations are not always perfect, but must be correct in substance.
[9] Since I do not find that there were any interpretation problems which would engage the Charter, I do not have to determine if the problems raised in Mohammadian v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 309, IMM-6500-98 (March 10, 2000) (T.D.). In that case, Pelletier J. held that the principles enunciated by the Supreme Court of Canada in Tran, Supra, applied to the immigration context, with one exception concerning waivers. There are no waiver problems arising from the facts before me in this case.
[10] The applicant also raised problems with the credibility findings of the Board. The applicant submits the claim that the Board erred when it stated that:
The claimant was evasive in his responses to critical questions, often responding with unrelated and unsatisfactory answers, as is illustrated below.
The inconsistencies and plausibility findings were numerous and pervasive.
[11] The standard of review for findings of credibility is cited in Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 at para. 4, A-1116-91 (July 16, 1993) (C.A.):
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
[12] The panel was entitled to prefer documentary evidence over that of the testimony of the claimant. The Board did not err in assessing the applicant's credibility, and its findings were reasonable.
[13] The applicant also submitted that he did not testify that he had engaged in any activities of the AISSF. However, it was certainly open to the Board to interpret the following exchange between the RCO and the applicant. In referring to the AISSF the RCO stated:
RCO: Well, surely, an organization like that needs all kinds of members to do all kinds of jobs; not everybody has to be a public speaker.
Claimant: I was supporter and I used to go along with the others, I took part in that.
Ghosh: In what?
Claimant: (Speaking in English) ISSF.
Interpreter: In the ISSF.
Claimant: (Speaking in English) AISSF[sic].
RCO: You mean you took part in their activities?
Claimant: (Speaking in English) Yes.
Interpreter: Yes.
[14] The application for judicial review is dismissed. No questions will be certified here is the interpretation problem are questions of fact; there is no dispute with respect to the law. Since this case differs on the facts from Mohammadian, Supra, I will not certify any of the questions submitted by the applicant, as they are not dispositive of the case.
"W. P. McKeown"
J.F.C.C.
Toronto, Ontario
September 8, 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2892-99
STYLE OF CAUSE: BALJINDER SINGH BAINS
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
DATE OF HEARING: WEDNESDAY, AUGUST 16, 2000
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: MCKEOWN J.
DATED: FRIDAY, SEPTEMBER 8, 2000
APPEARANCES BY: Mr. Micheal Crane
For the Applicant
Mr. Ian Hicks
For the Respondent
SOLICITORS OF RECORD: Micheal Crane
Barrister and Solicitor
166 Pearl Street, Suite 200
Toronto, Ontario
M5H 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20000908
Docket: IMM-2892-99
BETWEEN:
BALJINDER SINGH BAINS
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER