Date: 19990716
Docket: IMM-5261-98
OTTAWA, ONTARIO, THIS 16TH DAY OF JULY, 1999.
PRESENT: THE HONOURABLE MR. JUSTICE EVANS
BETWEEN:
ZHEN SHAN LIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review is granted and the matter is remitted to a differently constituted panel of the Convention Refugee Determination Division of the Immigration and Refugee Board.
John M. Evans
J.F.C.C.
Date: 19990716
Docket: IMM-5261-98
BETWEEN:
ZHEN SHAN LIN
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
EVANS J.:
| A. INTRODUCTION |
[1] Zhen Shan Lin, a citizen of the People"s Republic of China, claimed refugee status on his arrival in Canada in 1996 on the ground of a well founded fear of persecution on account of his religion.
[2] In his personal information form he stated that he was a devout and practising Roman Catholic, the faith in which he had been brought up by his parents, and to which his grandparents had also adhered. As a child he had attended church services which, because of the government"s hostility to organized religion, were sometimes held in his family"s home. His father was arrested in 1955 and detained on account of his religious beliefs.
[3] The applicant further said that in 1994 he joined the "underground" Roman Catholic church, and that in 1996 officials of the Public Security Bureau raided a service that he was attending. He managed to escape being beaten and arrested, and went into hiding before leaving for Canada.
B. THE PROCEEDING BEFORE THE BOARD
[4] The Refugee Division dismissed his claim on the ground that it did not consider credible his evidence that he was a "devout and practising Roman Catholic", even allowing for cultural differences and differences in religious practices, the applicant"s limited education and interpretation problems at the hearing.
[5] First, the applicant said in his oral evidence that he had not attended church services in the years 1970 to 1994. This fact was not included in his personal information form, and seemed to the Board to be inconsistent with his professed status as a devout and practising Roman Catholic.
[6] Second, when questioned by counsel and the presiding members the applicant showed very little knowledge of his religion. Indeed, what little he appeared to know he might well have learned from the catechism classes that he had been attending since his arrival in Canada. The Board concluded that the paucity of his knowledge was another reason for finding incredible the evidence on which Mr. Lin based his refugee claim.
C. THE ISSUES
[7] At the hearing of the application for judicial review counsel seemed to concede that it was open to the Board on the evidence before it to dismiss Mr. Lin"s claim on the ground of credibility. Instead, he rested his case on an allegation of a breach of the duty of procedural fairness by the Refugee Division.
[8] In particular, he submitted, the evidence given by the applicant in response to questions designed to determine the extent of his religious knowledge were not adequately communicated by the interpreter and, as a result, the applicant was denied a reasonable opportunity to participate in the proceeding by putting before the decision-maker his evidence on a matter crucial to his claim to be a refugee.
[9] Mr. Lin had been provided with an interpreter who, it would seem from the transcript, was familiar with the Fouzhou dialect, which is what the applicant speaks. Although the presiding members appear not to have asked for the record whether the applicant and the interpreter understood each other, it would seem that, with some exceptions, they did.
[10] Counsel for the applicant relied on three instances where the interpreter could not communicate to the Board members what the applicant was saying because she could not understand him, she was unsure about the Chinese word for holy communion, or her interpretation was inaccurate or incomplete.
[11] First, when asked what happened at a church service that he attended Mr. Lin started to recite a prayer in what the interpreter recognized as an antiquated form of the Fouzhou dialect, but which, as she advised the panel, she could not understand. A similar difficulty arose when, in response to a question about his use of the rosary that he brought with him to the hearing, the applicant recited a prayer. Rather than adjourning the hearing to see if another interpreter was available who could understand this part of the applicant"s testimony, the Board simply put other questions to him.
[12] Second, when asked the date when he first took holy communion and the nature of that sacrament, the applicant had difficulty in communicating with the interpreter. However, after some confusing exchanges among the members, the interpreter and the applicant, Mr. Lin ultimately gave an answer that was sufficiently responsive to the question to indicate that he understood what he was being asked.
[13] Third, it was stated in an affidavit that a person familiar with the dialect spoken by Mr. Lin had advised the affiant that the interpreter had not accurately or completely interpreted three of his answers. However, while not trivial, the discrepancies were also far from being fundamental, and, given the second-hand nature of the information that this affidavit contains, I can give it little independent probative weight.
[14] The issue to be decided in this application for judicial review, therefore, is whether the Refugee Division"s decision should be set aside on the ground that the defects in interpretation were so significant as to deprive the applicant of a reasonable opportunity to influence the decision-maker by the presentation of evidence, a right that he is legally guaranteed by the duty of fairness.
D. ANALYSIS
[15] It is not disputed that the right to procedural fairness includes the right to an interpreter who can communicate to the tribunal what a person wishes to say who is not fluent in the language of the hearing: Xie v. Canada (Minister of Employment and Immigration) (1990), 10 Imm. L.R. (2d) 284 (F.C.A.). As Stone J.A. put it in Tung v. Canada (Minister of Employment and Immigration) (1991), 124 N.R. 388, 392 (F.C.A):
In my opinion, the appellant was entitled, through the interpreter, to tell the story of his fear in his own language as well as 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 below as it does here where we are expected to review important aspects of the Board"s record which is plainly deficient.
[16] 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?
[17] In my view the most serious of the interpretative defects relied on to establish a breach of the duty of fairness was the interpreter"s inability to communicate to the Board the words of the prayers that Mr. Lin said that he used in his devotions. Counsel submitted that this evidence related to a matter that was central to Mr. Lin"s claim to be a refugee and, if understood by the presiding members, might either itself have demonstrated his knowledge of his religion, or prompted them to ask further questions, the answers to which might have satisfied them that Mr. Lin was, and had been brought up in China as, a devout and practising Roman Catholic. Furthermore, this was not an example of a merely defective interpretation, but a situation where, to the Board"s knowledge, the interpreter was unable to communicate the particular evidence to it at all.
[18] On the other hand, as counsel for the Minister pointed out, there were many ways in which the Board could have ascertained the extent of Mr. Lin"s knowledge of his professed faith. Indeed, when it gave Mr. Lin other opportunities to demonstrate his knowledge, it found it to be so limited as to make his claim to have been persecuted for practising his religion incredible.
[19] In addition, the Refugee Division had also based its non-credibility finding on Mr. Lin"s failure to mention in his personal information form the fact that he had not attended church services for a period of twenty-four years, and on the absence of any satisfactory explanation of why a devout and practising Christian of the Roman Catholic faith would have so lapsed in his observances. Hence, it could not be said that the failure of the Board to have the applicant"s prayers interpreted was material to its decision to reject his claim to be a refugee.
[20] In my opinion the key question is whether Mr. Lin was prejudiced by the fact that the Board did not try to ensure the presence at the hearing of an interpreter who could understand and communicate the words of the prayers that Mr. Lin wanted the members to hear as evidence of the truth of his claim. In the passage from the reasons for judgement in Tung that I quoted in paragraph 15, Stone J.A. found reviewable error after concluding that the defect in the translation "prejudiced the appellant".
[21] Reviewing courts have regularly been warned not to withhold relief for a breach of the duty of fairness because it was immaterial, in the sense that the tribunal"s decision would have been the same, even if perfect procedural propriety had been observed. This is because it is dangerous for a court to speculate on what might have happened if, as in our case, a person had not been effectively prevented from presenting a piece of evidence, and because the process values underpinning the duty of fairness transcend the merely instrumental.
[22] The judgment of Le Dain J. in Cardinal v. Kent Institution, [1985] 2 S.C.R. 643, 661 contains the most authoritative statement of this principle in Canadian administrative law. Thus, while relief may not be granted if, as a matter of law, the tribunal"s decision could not have been different, it will be granted even though it may seem to the reviewing court that the ultimate result was very likely to have been the same. See further Ruby, "Remedial Discretion: When Should the Court Right the Wrong?" (1997-98), 11 C. J.A L.P. 259, where the author is critical of decisions of this Court refusing relief because of the "factual inevitability" of the tribunal"s decision, notwithstanding a breach of the duty of fairness.
[23] On the other hand, courts have also avoided trivialising the duty of fairness by reducing it to the level of formalism. Not every procedural shortcoming amounts to a breach of the duty. To enable a court on an application for judicial review to set aside a decision of an administrative tribunal for procedural unfairness errors must have deprived the individual of what any fair-minded person would regard as a reasonable opportunity to influence the decision-maker through the production of evidence and the making of submissions.
[24] In my opinion the Board erred when it dismissed Mr. Lin`s claim without first seeing whether it could obtain an interpreter who could understand the prayers that he wanted the Board to hear. This was evidence that was both relevant to one of the two bases on which the Board found him to be non-credible, and close to the core of his claim for refugee status.
[25] I also agree with counsel"s observation that, if the Board had found Mr. Lin"s knowledge of religious practice to be at all convincing, it might have considered more sympathetically the explanations that he gave for the discrepancy between his written and oral evidence and for his prolonged non-attendance at church services in China.
[26] This point also serves to distinguish Yassine v. Canada (Minister of Employment and Immigration) (1994), 27 Imm. L.R. (2d) 135 (F.C.A.), where the Court refused relief for a breach of the duty of fairness with respect to one aspect of the applicant"s claim because it had made a finding against the claimant on another independent and unrelated issue. Thus, even if the applicant had succeeded on the issue to which the procedural unfairness related, the claim would still have been rejected.
[27] In the present case, however, since the Board had only one concern, namely Mr. Lin"s credibility, its view on one of the bases for its finding of non-credibility might affect its view of the other. In these circumstances I cannot conclude that remitting the matter to the Board for the applicant to be properly heard is an exercise in futility.
[28] Furthermore, it is appropriate to note at this stage that there were other interpretative difficulties at the hearing. I was not persuaded that standing alone they would have amounted to a breach of the duty of fairness, in part because they seem to have resulted as much from comprehension as from linguistic difficulties. However, they provide additional support for my conclusion on the effect of the Board"s failure to hear the applicant"s prayers.
E. CONCLUSION
[29] For these reasons the application for judicial review is granted and the matter is remitted to a differently constituted panel of the Convention Refugee Determination Division of the Immigration and Refugee Board.
OTTAWA, ONTARIO John M. Evans
July 16, 1999. J.F.C.C.