Date: 20010813
Docket: IMM-4071-00
Neutral citation: 2001 FCT 885
BETWEEN:
MUHAMMED BABIR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
(Delivered from the Bench at Toronto, Ontario
on August 9, 2001, as edited)
[1] The applicant seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration Refugee Board (the "Board") dated July 10, 2000, in which the Board determined that the applicant was not a Convention Refugee.
[2] The issue is: Was the applicant denied fairness because the translation services provided at his hearing were inadequate, especially in light of the fact that much of the Board's decision relied on credibility and implausibility findings?
[3] The very recent Court of Appeal case of Mohammadian v. Canada (MCI), [2001] F.C. J. No. 916 (C.A.) is applicable. In that case Justice Pelletier had certified the following questions pursuant to section 83 of the Immigration Act (the "Act"):
Does the analysis developed by the Supreme Court of Canada R. v. Tran supra in relation to the application of s. 14 of the Charter to criminal proceedings apply to proceedings before the CRDD, and in particular:
1. Must the interpretation provided to applicants be continuous, precise, competent, impartial and contemporaneous?
2. Must applicants show they have suffered actual prejudice as a result of a breach of the standard of interpretation before the Court can interfere with the CRDD's decision.
3. Where it is reasonable to expect an applicant to do so, such as when an applicant has difficulty understanding the interpreter, must the applicant object to the quality of interpretation before the CRDD as a condition of being able to raise the quality of interpretation as a ground of judicial review?
The reference to "CRDD" is to the Refugee Division.
The Court of Appeal answered questions 1 and 3 "yes" and question 2 "no".
[4] In the Mohammadian case, paragraph 18 of Justice Stone's decision is all-important, and I particularly emphasize the last sentence:
As Pelletier J. observed, if the appellant's argument is correct a claimant experiencing difficulty with the quality of the interpretation at a hearing could do nothing throughout the entire hearing and yet be able to successfully attack the determination at some later date. Indeed, where a claimant choses [sic] to do nothing despite his or her concern with the quality of the interpretation, the Refugee Division would itself have no way of knowing that the interpretation was in any respect deficient. The claimant is always in the best position to know whether the interpretation is accurate and to make any concern with respect to accuracy known to the Refugee Division during the course of the hearing, unless there are exceptional circumstances for not doing so.
[5] The applicant submits that there are exceptional circumstances in the case before me. An affidavit by a translator states that this is the worst example of translation he has seen in his experience. However, neither the applicant or his counsel objected to the translation at the hearing.
[6] The applicant in his affidavit sets out why counsel and the member could not understand and appreciate the breakdown of circumstances in these proceedings, and then offers his own reason for not objecting. He states in the last sentence of paragraph 7 of his affidavit:
Further, likewise, I myself having no proficiency whatsoever in the English language, it was not possible for me to understand at all and thereby to appreciate the inability of the interpreters in question herein to interpret accurately and precisely the words spoken by Member Whittaker, by Mr. Goldstein and by myself throughout these proceedings.
[7] This is not correct for two reasons. At page 448 of the certified record there is an exchange between the presiding member and the applicant as follows:
Q. Mr. Babir, you answer the question without waiting for the interpretation, which suggests to us that you understand English. You just answered the question before the interpreter had a chance to interpret. Now that suggests that you know some English. You do know English?
A. A little bit.
[8] The applicant began to answer questions posed in English, without waiting for the interpretation. Secondly, he admitted he knew English "[a] little bit". If the translation was as bad as stated by the interpreters retained by the applicant, the applicant or his counsel could have raised an objection at the hearing. They did not do so, in spite of the fact that the onus rests with the applicant. Thus the applicant did not meet the requirements of the third question in Mohammadian, supra and there are no exceptional circumstances to alleviate this burden.
[9] I also note that the Board based its decision on other implausibilities that have not been put into question by any specific evidence put forward by the applicant. Furthermore, I am satisfied on the merits that this application should be dismissed.
[10] The application for judicial review is dismissed.
"W.P. McKeown"
JUDGE
OTTAWA, ONTARIO
August 13, 2001