Date: 20010409
Docket: IMM-951-00
Neutral Citation: 2001 FCT 308
BETWEEN:
BAO GUO CHEN
Applicant
- and -
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Defendant
A. INTRODUCTION
[1] Bao Guo Chen (the "applicant") is a 24-year-old citizen of China from Daxie Village, Fujian Province, whose refugee claim was denied on December 20, 1999, in an oral decision delivered by the presiding member of a panel of the Refugee Division of the Immigration and Refugee Board (the "Tribunal").
[2] The applicant had based his refugee claim on two grounds. The first ground advanced was religious persecution because he practices Buddhism. The second ground was membership in a particular social group that is, those persons fearing persecution by the Family Planning Committee because a family member, his brother, had transgressed the one child policy.
[3] The applicant challenges the Tribunal's decision by way of judicial review on a number of grounds only one of which need be dealt with to resolve this case. That ground relates to the quality of interpretation.
B. THE TRANSCRIPT REVIEW
[4] A review of the transcript of the December 16, 1999 hearing of the applicant's refugee claim reveals the following:
(a) the presence of an interpreter interpreting English to Mandarin;
(b) the applicant's counsel noting, at the start of the hearing, that a request had been made for a Fuzhou interpreter;
(c) confirmation by the claimant he understood the interpretation provided by the interpreter into the Fuzhou dialect;
(d) at page 4 of the transcript, problems started developing as the interpreter began to give several responses, noted as "indiscernible" in the transcript. These transcript notations of "indiscernible" responses are found throughout several pages of the transcript;
(e) at page 6 of the transcript, the interpreter is reminded by the presiding member not to explain things to the claimant but simply to interpret;
(f) at page 8 of the transcript, counsel for the applicant asked him how he became a Buddhist; the answer is recorded as "indiscernible". Counsel for the applicant tells the interpreter that it is important he translate what she says and, if he (the applicant) does not understand, he can ask anybody to rephrase it;
(g) on the same page, counsel for the applicant asks him "[D]o you understand my question?"; the answer given by the applicant is "I don't – I don't understand".
(h) on the same page, asked by his counsel "what did you do as a Buddhist?" the applicant said he did not know.
(i) the presiding member at page 9 of the transcript says to the interpreter "I didn't understand that" and after a few lines "Mr. Interpreter, what are you asking him? What are you saying to him?" The transcript records the interpreter saying "I want to -- I want to say (indiscernible)" to which counsel for the applicant said "Yeah. We'll ask him that. We've got to make sure what he said, and what you're saying".
(j) at page 10, counsel for the applicant asks the interpreter "[A]re you having trouble understanding". The interpreter responded "I cannot -- I cannot -- he don't, you know, communicate very well". The other panel member then asked the applicant to speak up because he felt the applicant was too soft-spoken.
(k) at page 11 of the transcript, again the question is put by his counsel whether the interpreter is having difficulty understanding the applicant to which the interpreter responds "[N]o, for him no problem, but (indiscernible) so I cannot catch his meaning". The presiding member said "[S]o it's because of the number of words that he's saying" and the interpreter responded "Yeah".
(l) at page 13, the other panel member asked the applicant "do you understand what we're asking you to do?; the answer was "[N]ot very clear". The presiding member then said "[A]t this point I don't think the problem is with the dialect – ... I think it's just the way the claimant speaks" to which counsel for the applicant said "[T]hat's what I mean, yeah. Because he's speaking in parts of sentences and...".
(m) at page 15, the transcript records confusion in one of his answers on the extent of the religious ceremonies in Buddhism after which the applicant said "[C]an I try in Mandarin?".
(n) again, at page 19 of the transcript, an indiscernible response by the interpreter leads to the presiding member asking "what did the claimant say" to which the interpreter said "[Y]es, (indiscernible) village in this one".
(o) at page 34, the presiding member asked him about Buddha and where he lived. The applicant answered "I don't know".
(p) at page 31, the Refugee Claims Officer asked the applicant whether he belonged to the Qui Gong religion. The interpreter provided a response to which the presiding member said "Mr. Interpreter, is this what he's saying or what you're saying?".
C. ANALYSIS
(1) The preliminary issue
[5] Counsel for the respondent raised as a preliminary issue, the jurisdiction of this Court to hear issues not raised before the Tribunal. In particular, counsel for the respondent objected to the applicant raising the issue his section 10(b) and section 7 Charter rights were violated or the port of entry notes should be excluded pursuant to subsection 24(2) of the Charter.
[6] After hearing counsel for the parties, I ruled such arguments to be inadmissible on the basis of Justice Gibson's decision in Xing Kang Chen v. The Minister of Citizenship and Immigration, (docket IMM-808-00, November 29, 2000) which was directly on point.
(2) The substantive issue
[7] In terms of the quality of interpretation, this case is remarkably similar to Tung v. Minister of Employment and Immigration (1991), 124 N.R. 388 (F.C.A.).
[8] After reviewing the transcript, Stone J.A. concluded at page 392 that the transcript "contains passages which can only be described as difficult if not wholly incoherent". He wrote:
[13] In my opinion, the appellant was entitled, through the interpreter, to tell the story of his fear in his own language as well 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 decision on a record which is plainly deficient.
[9] Justice MacGuigan, on behalf of the Federal Court of Appeal in Xie v. Canada (Minister of Employment and Immigration) (1990), 10 Imm. L.R. (2d) 284, dealt with a case where counsel had raised objections to the quality of interpretation: the speed at which the interpreter was speaking; her dialect in Chinese and her incorporation of English words.
[10] Justice MacGuigan allowed the application for review. He cited Madam Justice Bertha Wilson in Association of Parents for Fairness in Education, Grand Falls District 50 Branch v. Société des Acadiens du Nouveau-Brunswick Inc., [1986] 1 S.C.R. 549 for the proposition "the ability to understand and be understood is a minimal requirement of due process".
[11] Justice MacGuigan ruled the objection as to the interpreter's competence was a serious one and once raised it required resolution though perhaps not necessarily in a voir dire. He concluded it was the adjudicator's responsibility to assure himself the interpreter was competent.
[12] The transcript clearly reveals that, at the beginning of the hearing, there was a serious problem in the communications between the applicant and the interpreter. Everyone was aware of it; the panel members, counsel, the applicant and the interpreter. It required immediate resolution and it was the presiding member who had the responsibility to clear it up.
[13] The applicant was forced to request the tribunal to change from Fuzhou to Mandarin.
[14] In my view, the problems of communications with the interpreter were of such a nature as to have prevented the applicant from telling his story. This is not a case like Banegas v. Minister of Citizenship and Immigration, IMM-2642-96, June 30, 1997, McGillis J., where specific errors of interpretation were under review and were found not to be prejudicial.
[15] This case is one where there was a fundamental flow of communications between the applicant and the interpreter during a substantial part of the hearing.
[16] Counsel for the respondent urged that problems were resolved after he switched in Mandarin.
[17] While communications did appear to improve, I am not satisfied the improvement repaired the initial blockage which was substantial and central to the applicant's story.
CONCLUSION
[18] This judicial review application is allowed, the tribunal's decision is set aside and the matter remitted for reconsideration by a differently constituted panel. No certified question was proposed.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
APRIL 9, 2000