Wednesday, July 11, 2012

Owochei—credibility assessment with translation issues

Owochei v. Canada (Citizenship and Immigration), 2012 FC 140 (CanLII)

Judge: Justice Russell; Date heard: December 8, 2011; Date decided: February 2, 2012; Counsel for Owochei: Raoul Boulakia; Counsel for Minister: Rafeena Rashid; Place of Hearing: Toronto, Ontario.

The applicant was a citizen of Nigeria whose application for protection on grounds of domestic violence had been refused by the Refugee Protection Division (RPD). The RPD found that the determinative issue was credibility.

Justice Russell found that the RPD had not made a clear general credibility finding, leaving it unclear whether it believed part or none of the applicant’s claims (para. 53). Although the RPD mentioned “examples” of supposed inconsistencies, Justice Russell focused his analysis on one problematic analysis.

The RPD stated that there was an inconsistency between the applicant’s PIF, in which she mentioned being abused by her husband after having fled to live at her parents’ house, and her viva voce testimony in why she stated that he did not physically abuse her (although there may have been an incident of verbal abuse) (para. 55). Justice Russell points out that the RPD accepted that she had fled the marital home, and that there was no evidence of any other reason for her to flee, suggesting that she had been being abused: “…if the RPD accepted that she was running away, it is reasonable to expect that it would pay close attention to the Applicant’s explanation that she did not change her story from physical abuse to verbal abuse.” (para. 55)

Furthermore, Justice Russell points out that the RPD ignores the explanation given by the applicant, namely that there was a translation issue with her PIF (paras. 56-57). The applicant spoke Igbo, and there was an Igbo interpreter at the hearing, but the interpreter when she did her PIF spoke Yoruba. While the applicant spoke both languages, she was much more confortable in Igbo (para. 57). Therefore, the applicant stated that she had not “changed” her story, as the RPD alleged (para. 58). Justice Russell found the failure to consider this explanation was unreasonable (para. 58). He then went on to cite a number of cases that caution the RPD against overzealousness in seeking out problems with a claimant’s case; Attakora v Canada (Minister of Employment and Immigration),[1989] FCJ No 444 (FCA), Owusu-Ansah v Canada (Minister of Employment and Immigration), [1989] FCJ No 442 (FCA), Rajaratnam v Canada (Minister of Employment and Immigration), [1991] FCJ No 1271 (FCA) (paras. 59-61).

Justice Russell found that the RPD’s reasons were too brief to give any other justification for the decision (para. 63). Therefore the decision was overturned.

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