Date: 20030319
Docket: IMM-2236-02
Neutral citation: 2003 FCT 326
Toronto, Ontario, Wednesday, the 19th day of March, 2003
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
XIN TONG HUANG
Applicant
- and -
THE MINISTER
OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. Xin Tong Huang (the "Applicant") is a citizen of the People's Republic of China ("China"). Upon his arrival in Canada from the China in December 2000, he claimed Convention refugee status on the basis of a well-founded fear of persecution on the grounds of his perceived political opinion. After a hearing before the Convention Refugee Determination Division of the Immigration and Refugee Board (the "Board") on March 5, 2002, the Board, by decision dated April 19, 2002, found that the Applicant was not a Convention refugee. He has applied for judicial review of that decision on the basis that he was not provided with adequate interpretation and that the Board erred in finding that he was not credible.
Background
[2] In his Personal Information Form ("PIF"), the Applicant explained that his brick manufacturing company was shut down by Chinese authorities in May 2000 because the property was wanted for a road to the airport. In November 2000, the Applicant and two other co-owners of the factory attended at the offices of the local government to protest the compensation given for expropriation of his business and were critical of the government. The police were called and arrests were made. The Applicant claims that he was beaten by the police, but he was able to escape and he went into hiding in another province. He fled to Canada using a fake passport provided by an agent and claimed refugee status. Since his arrival in Canada, the Applicant has learned that his colleagues are still in prison. He fears that if he returns to China, he will be arrested and jailed.
[3] Since the Applicant does not speak English, a Mandarin interpreter was present for his hearing at the Board. Following the hearing, the Applicant reviewed the tapes of the hearing with an interpreter. He discovered that the interpreter at the hearing made several errors in interpretation, both from English to Mandarin and from Mandarin to English.
[4] Having considered all the evidence, the Board was not satisfied that there was a serious possibility that the Applicant, should he return to China, would be persecuted based on any of the Convention refugee grounds. The determinative issue in this claim was credibility.
[5] The Board concluded that, while the Applicant may have been employed in a brick factory, he did not own it and that his employment was not disrupted because the authorities wanted the factory for a road. The Board believed that, on a balance of probabilities, the Applicant was not responsible for making complaints to the government or leading any protests. The Board did not believe that the Applicant was beaten, spent time in hiding, is wanted by the Chinese authorities or is being sought for any reason. As a result, there was insufficient credible or trustworthy evidence to support a finding of a serious possibility of persecution should the Applicant return to China.
Issues
[6] The issues in this proceeding can be stated as follows:
1. Did errors in the interpretation cause the denial of a fair hearing and violate the Applicant's rights under section 14 of the Canadian Charter of Rights and Freedoms ("Charter")?
2. Did the Board err in finding that the Applicant was not credible?
Analysis
[7] It is my view, for the reasons that follow, that the decision of the Board should be overturned on the basis that the Applicant was denied his right under section 14 of the Charter to precise and competent interpretation.
Issue #1: Did errors in the interpretation cause the denial of a fair hearing and violate the Applicant's rights under section 14 of the Charter?
[8] The Applicant has a right, under section 14 of the Charter, to continuous, precise, competent, impartial and contemporaneous interpretation. The Applicant is not required to show that he has suffered actual prejudice as a result of the breach of the standard of interpretation in order for this Court to interfere with the decision of the Board (Mohammadian v. Canada (Minister of Citizenship and Immigration), [2001] 4 F.C. 85 (C.A.), leave to appeal dismissed, [2001] S.C.C.A. No. 435 (QL) ; R. v. Tran, [1994] 2 S.C.R. 951 ).
[9] The Respondent submits that problems with the quality of interpretation should not be raised for the first time on the application for judicial review (Mohammadian, supra; Babir v. Canada (Minister of Citizenship and Immigration), 2001 FCT 885, [2001] F.C.J. No. 1244 (QL); Dhot v. Canada (Minister of Citizenship and Immigration), 2001 FCT 881, [2001] F.C.J. No. 1264 (QL)). Where it is reasonable to expect the Applicant to do so, such as when the Applicant has difficulty understanding the interpreter, the Applicant must object to the quality of the interpretation before the Board as a condition of being able to raise the quality of interpretation as a ground for judicial review. In Mohammadian, supra, the Federal Court of Appeal adopted the conclusions of Pelletier J. in the trial decision of that case, [2000] 3 F.C. 371 at paragraphs 27 and 28, regarding waiver:
...complaints about the quality of interpretation must be made at the first opportunity, that is, before the CRDD, in those cases where it is reasonable to expect that a complaint be made.
It will be a question of fact in each case whether it is reasonable to expect a complaint to be made. If the interpreter is having difficulty speaking the applicant's own language and being understood by him, this is clearly a matter which should be raised at the first opportunity. On the other hand, if the errors are in the language of the hearing, which the applicant does not understand, then prior complaint may not be a reasonable expectation.
[10] In this case, however, in my view, it is not reasonable to expect the Applicant to have raised the interpretation problems at the hearing. The Applicant does not speak or understand English, unlike the applicant in Babir, supra. In addition, there in no indication that the Applicant could not understand the interpreter, as in Dhot, supra. Rather, the problem was the interpreter's incorrect translation from English to Mandarin and from Mandarin to English. The Applicant, who spoke no English, could not be expected to recognize errors in the interpreter's translation. As a result, he has not waived his right to raise the quality of interpretation on judicial review.
[11] The Applicant alleges several errors were made by the interpreter at the hearing. According to the affidavit of Yimin Wu, the interpreter's errors included the incorrect translation of various dates given by the Applicant; the interchange of the words "protest", "complain", "discuss" and talk"; and the incorrect translation of "pulled" as "carried".
[12] A review of the transcript indicates confusion regarding the date of the protest and the first time that the Applicant went to the government offices to complain. It appears that much of this confusion may have been caused by the interpreter's interchange of the words "protest," "complain," "discuss," and "talk". For example, at pages 117 and 118 of the Certified Tribunal Record, the following exchange took place between the RCO and the Applicant:
RCO: Now when you went to complain on November 3rd, did you go by yourself?
CLAIMANT: When I went to protest, it was over 20th of November.
[13] A similar exchange took place earlier in the hearing. The Board cited the inconsistent testimony on this issue as a reason for impugning the Applicant's credibility and concluding that the Applicant did not approach government officials for any reason.
[14] According to the affidavit of Yimin Wu, the interpreter did not always translate dates correctly; in particular, the interpreter made errors regarding the translation of the date that the factory was demolished. In addition, during the hearing, the interpreter stated that he had some difficulty understanding the Applicant's pronunciation of numbers. Based on this confusion, it is impossible to tell whether the Applicant actually gave inconsistent dates for the relevant events or whether those dates were the result of incorrect translation by the interpreter. This inconsistency was one of the reasons why the Board found the Applicant to be not credible.
[15] The transcript also reveals confusion over whether the Applicant was carried away or pulled away after the beating by the police. According to the affidavit of Yimin Wu, the Applicant testified that he was pulled away, but the interpreter translated this as carried. The transcript indicates that it is very possible that this is what happened. Again, this inconsistency was used by the Board to impugn the Applicant's credibility.
[16] Therefore, there is evidence that the interpreter made errors in translation. Unlike in Basyony v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 427 at paragraph 8 (T.D.) (QL), this is not a matter of "differences in nuance between what is said in one language and its translation into another". These errors are not trivial or immaterial; they go to the very essence of the rejection of the claim. In this case, the Board relied, at least in part, on the errors of translation to support its conclusion that the Applicant was not credible. The main reason why the Board rejected the Applicant's claim was this negative credibility finding. It is my view that the Applicant was denied his right under section 14 of the Charter to continuous, precise, competent, impartial and contemporaneous interpretation. Since the Applicant's credibility was the determinative issue in this case, this is sufficient to allow this application for judicial review.
Issue #2: Did the Board err in finding that the Applicant was not credible?
[17] The Respondent submits that, even if there was a breach of natural justice in this case, such a breach would be immaterial as there is clear evidence that the Applicant was not a credible witness, independent of any alleged interpretation errors (Patel v. Canada (Minister of Citizenship and Immigration), 2002 FCA 55, [2002] F.C.J. No. 178 (QL); Yassine v. Canada (Minister of Employment and Immigration), [1994] F.C.J. No. 949 (C.A.) (QL)). In the view of the Respondent, the Board's inferences and conclusions were reasonably open to it on the record and the Board did not commit a reviewable error in finding the Applicant not credible (Brar v. Canada (Minister of Employment and Immigration), [1986] F.C.J. No. 346 (C.A.) (QL); Aguebor v. Minister of Employment and Immigration, [1993] F.C.J. No. 732 (C.A.) (QL); Grewal v. Canada (Minister of Employment and Immigration), [1983] F.C.J. No. 129 (C.A.) (QL)).
[18] It is clear from the affidavit of Yimin Wu and from the transcript that the Board based its credibility findings, in part, on erroneous findings of fact caused by interpretation problems.
[19] Although the Board did give a number of other reasons for its negative credibility finding, it is impossible to discern whether the Applicant's credibility would have been impugned were it not for all of the translation errors, addressed above. As a result, this application for judicial review should be allowed.
Question for Certification
[20] Neither party raised a question for certification.
ORDER
THIS COURT ORDERS that this application for judicial review is allowed. The Board's decision is set aside and the matter is referred back for redetermination by a differently constituted panel. There is no question for certification.
"Judith A. Snider"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-2236-02
STYLE OF CAUSE: XIN TONG HUANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, MARCH 18, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: SNIDER J.
DATED: WEDNESDAY, MARCH 19, 2003
APPEARANCES BY: Ms. Nancy Myles Elliott
For the Applicant
Ms. Alexis Singer
For the Respondent
SOLICITORS OF RECORD: Nancy Myles Elliott
Barrister & Solicitor
100 Allstate Parkway
Suite 503
Markham, Ontario
L3R 3H6
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030319
Docket: IMM-2236-02
BETWEEN:
XIN TONG HUANG
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER