Cheng v. Canada (Minister of Citizenship and Immigration)

  • Author: Federal Court of Canada, Trial Division
  • Document source:
  • Date:
    1 March 2002


Between
Le Cheng, applicant, and
The Minister of Citizenship and Immigration, respondent

[2002] F.C.J. No. 291
2002 FCT 211
Docket No. IMM-6589-00

Federal Court of Canada - Trial Division
Montréal, Quebec
Pinard J.

Heard: February 6, 2002.
Judgment: March 1, 2002.
(7 paras.)

   Aliens and immigration — Admission, refugees — Grounds, well-founded fear of persecution — Practice — Hearings — Interpreters.

   Application by Cheng for judicial review of a decision that he was not a Convention refugee.  Cheng was a Chinese citizen. He claimed he had a reasonable fear of persecution because he opposed the family planning policy.  He had married illegally and illegally left his country.  The Refugee Division found that Cheng lacked credibility and failed to establish his fear of persecution.  The Refugee Division also found that the law of general application and the risk of imprisonment for up to five years did not amount to persecution.  Cheng argued that the interpreter at the hearing did not speak his dialect and that he had trouble understanding him.

   HELD:  Application dismissed.  Cheng did not object to the interpreter at the hearing and he failed to establish any potential prejudice.  Cheng failed to demonstrate any error by the interpreter which impacted on the panel's decision.  The panel's decision was not based on any erroneous finding of fact.

Statutes, Regulations and Rules Cited:

 

Federal Court Act, R.S.C. 1985, c. F-7, s. 18(1)(4)(d). Immigration Act, R.S.C. 1985, c. I-2, s. 2(1).

 

Counsel:

Diane N. Doray, for the applicant.
Isabelle Brochu, for the respondent.                                                                           


 

REASONS FOR ORDER

1      PINARD J.:—  This is an application for judicial review of the decision rendered on November 27, 2000 by the Refugee Division, ruling that the applicant is not a Convention refugee, as defined in subsection 2(1) of the Immigration Act, R.S.C. 1985, c. I-2.

2      The applicant, a Chinese citizen from the province of Fujian, alleges that he has a reasonable fear of persecution in that country because of his political opinions; he says he is opposed to the family planning policy (he had married illegally) and has illegally left his country.

3      The Refugee Division determined that the applicant lacks credibility and accordingly has failed to establish his fear of persecution in terms of both his supposed illegal marriage and his illegal departure from China.

4      The applicant argues, first, in his written memorandum, that the Refugee Division should have taken into account the fact that the interpreter at the hearing spoke only Mandarin and not his own dialect, Fuzhou. He alleges that he had difficulty understanding the interpreter. I must agree with the respondent that the applicant, who never made any objection in this regard at the hearing, and did not cite any errors of translation by the interpreter as having any impact on the panel's negative decision, has not managed to establish the existence of potential prejudice.

5      Moreover, in so far as the Refugee Division's decision is based on the applicant's lack of credibility, I do not intend to intervene further. Without necessarily endorsing in full the language of the decision at issue, it is my view, after reviewing the record, that this specialized tribunal could reasonably conclude as it did (see Aguebor v. Canada (M.E.I.) (1993), 160 N.R. 315 (F.C.A.)). The applicant has not persuaded me that the decision is based on an erroneous finding of fact made in a perverse or capricious manner or without regard for the material before it (see paragraph 18.1(4)(d) of the Federal Court Act, R.S.C. 1985, c. F-7).

6      Finally, in so far as the applicant bases his claim on the risk of imprisonment for violating Chinese laws that prohibit exit from the country, I do not think the Refugee Division erred in finding that the law of general application in question, and the risk of imprisonment of up to five years, amounted to persecution. My colleague Mr. Justice Noël considered a similar question in relation to the Cuban laws, in De Corcho Herrera v. Canada (M.E.I.) (1993), 70 F.T.R. 253, and concluded:

         It is stated that the Valentin decision did not deal with the excessive punishment alleged here and, in the alternative, that the Valentin decision cannot apply to the Cuban situation where the exit laws are said to be inherently political. For the reasons which I expressed in Castaneda v. M.E.I., dated October 19, 1993 unreported, File No. A-805-92, I do not believe that the punishment for illegal exit under Cuban law is any more excessive than that which was under consideration in Valentin nor that the exit legislation in Cuba is any more inherently political than the Czechoslovakian law which was then before the Court of Appeal.                                                                                       

(See also the decisions of the Federal Court of Appeal in Valentin v. Canada (M.E.I.), [1991] 3 F.C. 390 and Sagharichi v. Canada (M.E.I.) (1993), 182 N.R. 398).

7      For all these reasons, the application for judicial review is dismissed.

Certified true translation:  Suzanne M. Gauthier, LL.L., Trad. a.

Comments:
Heard: February 6, 2002, Judgment: March 1, 2002
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