Date: 20010529
Docket: IMM-4548-00
Neutral Citation: 2001 FCT 547
BETWEEN:
MOHAMAD HUSSEIN ALI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] This is an application for judicial review of the Immigration and Refugee Board's [the"Board"] decision dated August 9, 2000, wherein the Board determined that the applicant was not a Convention refugee.
FACTS
[2] The applicant is a citizen of Iraq who claims a well-founded fear of persecution on the basis of his membership in a particular social group and his political opinion.
[3] The applicant was conscripted into the army in 1989. In 1991, when Iraq invaded Kuwait, the applicant was transferred to Kuwait along with other soldiers. After some period of time, the applicant and a small group of others decided to return to Iraq having heard that opposition to Saddam Hussein and to his war against Kuwait was mounting.
[4] Upon his return, the applicant joined with the other residents in a popular-led and short-lived Islamic uprising. The applicant guarded checkpoints, helped in the care of the wounded returning from areas that saw some armed conflict, and expressed his opposition to the Iraqi regime during the funeral processions of so-called "martyrs".
[5] A few months passed and then the Iraqi army invaded these areas and reasserted its authority. Persons perceived as traitors were sought out. The applicant claimed to be on the list of persons wanted and also claimed that he is still being sought.
ISSUES
[6] 1. Did the Board err in finding that the applicant was not a Convention refugee?
2. Was the quality of interpretation at the hearing at a standard below than required to guarantee the applicant a fair and impartial hearing as required under law?
ANALYSIS
1. Did the Board err in finding that the applicant was not a Convention refugee?
[7] The Board concluded that there was insufficient credible evidence upon which to find that there was more than a mere possibility that he will be persecuted should he return to Iraq.
[8] The applicant submits that it is clearly established in law that conscientious objections to compulsory military service is a basis for recognition as a Convention refugee where that military service is fundamentally illegitimate, as when it leads to participation in violations of human rights or general principles of international law.
[9] The applicant submits that the Board ignored the question of conscientious objection and statements of the applicant indicating his opposition to Saddam Hussein's government and his refusal to serve in Saddam Hussein's military due to the actions of Saddam Hussein's military with respect to the Kurds, Shiites and invasion of Kuwait and the brutal suppression of the Shia uprising.
[10] Regarding the applicant's desertion, the Board found that the applicant had no political profile of significance and if he did indeed desert the Iraqi military, he was not in the past nor now being sought on account of that desertion.
[11] The test for well-founded fear of persecution was stated as followed by the Supreme Court of Canada in Canada (Attorney General) v. Ward, [1993] 2 S.C.R. 689:
As has been alluded to above, the test is bipartite: (1) the claimant must subjectively fear persecution; and (2) this fear must be well-founded in an objective sense. This test was articulated and applied by Heald J.A. in Rajudeen, supra, at p. 134:
The subjective component relates to the existence of the fear of persecution in the mind of the refugee. The objective component requires that the refugee's fear be evaluated objectively to determine if there is a valid basis for that fear.
[12] A subjective fear of persecution must be established and the fear must be established in an objective sense. If a Board finds a claimant lacking in credibility, the documentary evidence alone is not sufficient to establish a claimant's fear since there is no evidence supporting the subjective basis for this fear.
[13] In Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 238 (F.C.A.), the Federal Court of Appeal stated:
I would add that in my view, even without disbelieving every word an applicant has uttered, a first-level panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim on which a second-level panel could uphold that claim. In other words, a general finding of a lack of credibility on the part of the applicant may conceivably extend to all relevant evidence emanating from his testimony. Of course, since an applicant has to establish that all the elements of the definition of Convention refugee are verified in his case, a first-level panel's conclusion that there is no credible basis for any element of his claim is sufficient. [emphasis added.]
[14] In the case at bar, the Board did not find the applicant credible and in the alternative, found that if the applicant had deserted the military, he had not been and was not being sought on account of that desertion.
[15] In support of his position, the applicant relies on various documentary evidence on the human rights situation in Iraq for military deserters.
[16] In light of the Board's conclusion on the issue of the applicant's credibility, the objective evidence is not relevant. Even if various documentary evidence demonstrates that military deserters face severe penalties, the fact that the Board did not believe that the applicant had deserted, or that he was sought on account of that desertion is sufficient to render this objective documentation not relevant. If it is not believed that the applicant has deserted, documentary evidence on this issue has no effect on the Board's finding. The applicant has the burden to prove that he has a subjective fear. The evidence of abuses in Iraq does not help the applicant since the Board did not accept that he was in such a situation as is mentioned in the documentary evidence.
[17] In Sinora v. M.E.I. (1993), 66 F.T.R. 113, Noël J. explained:
The applicant admitted that he did not establish that he was personally subject to persecution. He added, however, that since the documentary evidence clearly shows that the poor are mistreated in Haiti, the Board members erred in holding that no evidence of persecution was presented.
In my opinion, the applicant's claim is entirely unfounded. It is settled law that an applicant must demonstrate an objective and subjective fear of persecution. In this case, it was not sufficient simply to file documentary evidence. It was necessary at the very least to establish that the applicant himself had a real fear of persecution. In the absence of such evidence, the Board members were entitled to conclude as they did.
[18] The only argument left to the applicant on this issue is to demonstrate that the Board's conclusion regarding his credibility is patently unreasonable. I have carefully reviewed the transcript and the evidence before the Board and I cannot conclude that the Board erred in reaching its conclusion that the applicant's story was not credible.
2. Was the quality of interpretation at the hearing at a standard below than required to guarantee the applicant a fair and impartial hearing as required under law?
[19] The applicant submits that the interpretation at the hearing was substandard and that serious problems existed with the interpretation of the applicant's testimony at the hearing.
[20] In support of his contention, the applicant submitted an affidavit of Razgar Hasan, an accredited translator fluent in English and Arabic who works as an interpreter at the Board. Mr. Hasan pointed out about fourteen samples of misinterpretation and restructuring by the translator.
[21] The Federal Court of Appeal in Tung v. M.E.I., [1991] F.C.J. No. 292 (F.C.A.), stated:
In my opinion, the appellant was entitled, through the interpreter, to tell the story of his fear in his own language as well he might have done had he been able to communicate to the Board in the English language. Natural justice demanded no less. Manifestly, however he was unable to do so upon points of key importance to his claim because of the poor quality of the translation. I have no doubt that this circumstance prejudiced the appellant in the proceedings to review important aspects of the Board's decision on a record which is plainly deficient.
[22] In Lin v. M.C.I. (1999), 171 F.T.R. 289 (F.C.T.D.), Evans J. explained that the standard should not be perfection:
On the other hand, given the practical difficulties facing tribunals, perfection is not the legally required standard, particularly when the issue concerns the accuracy of oral interpretation: Banegas v. Canada (Minister of Citizenship and Immigration) (F.C.T.D.; IMM-2642-96; June 30, 1997). It is important not to lose sight of the ultimate question: were the defects in the interpretation so significant that they effectively deprived the individual of a reasonable opportunity to put his or her case fully to the tribunal?
[23] I have reviewed the Board's decision as well as the transcript of the hearing in light of the alleged various misinterpretations made by the interpreter. I cannot find that the applicant was deprived of a reasonable opportunity to put his case fully to the Board.
[24] The discrepancies between the applicant's answers and the interpreter's version of them cannot be said to be substantial and in fact were small variations on issues that were not primordial for the applicant's case. Furthermore, the Board did not rely on those answers in its decision and when it did refer to those answers, the discrepancies were not material.
[25] For example, the Board stated at page 2 of its decision:
He guarded checkpoints, helped in the care of the wounded returning from areas which saw some armed conflict, and expressed his opposition to the Iraqi regime during the funeral procession of so-called "martyrs".
[26] On this issue, the applicant, through the interpreter, had stated at the hearing, at page 15 of the transcript:
COUNSEL
How were you involved in this uprising?
CLAIMANT
I was in - got involved in the checkpoints.
MUZZI
What does that mean?
CLAIMANT
Like to check the suspicious people, might be they are sent by the Intelligence - Iraqi Intelligence. Like duties, guarding, like martyrs in that uprising, to take them home.
[27] Mr. Hasan in the exhibit attached to his affidavit indicates that the original version was : "escorting the Martyrs to their final resting place".
[28] It is true that the interpretation did not reflect precisely the applicant's answer.
[29] However, later, at page 27 of the transcript, the following took place:
STAINWICK
You also mentioned something about taking the martyrs home, what do yo mean by that?
INTERPRETER
Sorry?
STAINWICK
I think he said he took the martyrs home, to their homes, the martyrs.
INTERPRETER
Sorry, maybe it is just that - a little in the translation, ti's not taking people, it's like participating in the demonstration against Saddam, when they walk in the funeral of - for martyrs.
[30] This exchanged was more on point with the applicant's answer. However, even if it had not been explained, the misinterpretation did not have any impact on the decision since the important issue was that there was an uprising and that the applicant had indicated that he participated in it.
[31] The Board understood the applicant's story and this minor discrepancy did not have any impact on the Board's decision.
[32] The other discrepancies noted by Mr. Hasan are to the same effect and are even less important. For example:
The applicant stated: They will come randomly.
The interpreter stated: They will come suddenly.
The applicant stated: Two of them were killed.
The interpreter stated: Two of them got executed.
The applicant stated: From this hour to that hour.
The interpreter stated: From 9 to 5 or 7 to 5.
[33] It is not a perfect interpretation but it does permit the applicant to state his story and be understood by the Board. The discrepancies were minor and did not have an impact on the decision. I cannot find that the applicant did not have a fair and impartial hearing.
[34] Therefore, this application for judicial review is dismissed.
[35] Counsel for the applicant submitted four (4) questions for certification:
1. Under what circumstances will a nexus exist between a military deserter and/or a conscientious objector and a "well founded fear of persecution" within the meaning of "Convention refugee" as defined in the Immigration Act?
2. Where there is a reasonable prospect that military service will require the participation in violations of human rights, is a military deserter and/or conscientious precluded from successfully seeking convention refugee protection by virtue of the fact that military service is the product of a law of general application?
3. Can a political opinion be inferred merely from a refusal to perform or continue military service where it can be shown that such refusal is based on a legitimate objection to military service?
4. At what point must a soldier refuse or abandon military service to avoid the exclusion clauses within the meaning of "Convention refugee" as defined in the Immigration Act?
[36] Counsel for the respondent provided written submissions alleging that the first three questions were already answered and that the forth was irrelevant, and that no question should be certified.
[37] I agree with the submissions by counsel for the respondent. In my view, the applicant failed to convince the Court that those are serious questions of general importance. Therefore, no questions will be certified.
Pierre Blais
Judge
OTTAWA, ONTARIO
May 29, 2001