Date: 20050224
Ottawa, Ontario, February 24, 2005
Present: The Chief Justice
BETWEEN:
VIDAPHONE SAYAVONG
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] The principles governing the right to language interpretation, guaranteed by section 14 of the Charter of Rights and Freedoms, apply during hearings of the Refugee Protection Division: Mohammadian v. Canada (Minister of Citizenship and Immigration), 2001 FCA 191, confirming the decision of the applications judge, as he then was, Justice Denis Pelletier, [2000] 3 F.C. 371. The interpretation must be continuous, precise, competent, impartial and contemporaneous, yet need not meet the standard of perfection. No proof of actual prejudice from any deficient interpretation is required. As a general rule, any objection to the quality of the interpretation must be raised at the first opportunity during the refugee hearing.
[2] In this case, there is no suggestion that the applicant waived her right to challenge the quality of the interpretation. The applicant's counsel and the presiding member both raised concerns with the interpretation during the hearing. The interpreter acknowledged that he had no previous experience in refugee proceedings. In concluding the hearing, the presiding member stated that he would obtain an audit concerning the quality of the interpretation before handing down his decision on the merits of the applicant's refugee claim.
[3] Segments of the hearing tapes were analysed. In assessing the first half of one side of the first tape, the analyst noted significant omissions and errors. In the analyst's words, the interpretation was:
. 60% accurate and complete.
Interpreter lacked knowledge of technical procedures and terms.
He had skipped some words and summarized to about 60% of actual words spoken by people in the hearing.
...
Delivery is good (Laotian is his native language).
Quality of language is limited to basic day to day language. Serious lack of technical procedures and vocabulary cause confusion. ... Does not understand government words, departments, procedure and related names.
The results of the analysis of other segments of the tapes were not significantly better. The difficulty in language and vocabulary concerned words directly related to the applicant's refugee claim.
[4] The applicant's submissions concerning the audit were received by the Refugee Protection Division one month prior to the date of the decision but two days beyond the time period that had been set for their receipt. In responding to his review of the audit report, counsel noted that the applicant's evidence was not fully and accurately placed before the tribunal and that the principles of natural justice were breached. These submissions were not seen by the presiding member.
[5] The member concluded that the interpretation "problems were not so persuasive as to negate the hearing". In my view, this conclusion was not open to the tribunal on a proper application of the principles governing the Charter right to language interpretation. On the basis of the deficiencies noted in the analysis, one could not determine that the interpretation was continuous, precise and competent. The applicant's constitutional right to the interpretation of the proceeding was breached. The only remedy is a new hearing.
[6] Neither party suggested the certification of a serious question and none will be certified.
ORDER
This application for judicial review is granted and the matter referred back to the Refugee
Protection Division for rehearing and redetermination.
"Allan Lutfy"
C.J.
FEDERAL COURT
Names of Counsel and Solicitors of Record
DOCKET: IMM-10136-03
STYLE OF CAUSE: Vidaphone Sayavong v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: December 1, 2004
REASONS FOR ORDER BY: Chief Justice Allan Lutfy
DATED: February 24, 2005
APPEARANCES BY:
Ms. Brena Parnes For the Applicant
Ms. Marghertia Braccio For the Respondent
SOLICITORS OF RECORD:
Ms. Brena Parnes For the Applicant
416-482-9639
John H. Sims, Q.C. For the Respondent
Deputy Attorney General of Canada
416-952-0910