BETWEEN:
AND IMMIGRATION
and
REASONS FOR ORDER
[1] The Minister challenges, by way of judicial review, a decision of the Immigration Appeal Division ("IAD") wherein the IAD allowed the appeal by Ms. Vonn ("Vonn") of an earlier negative determination of her immigration sponsorship of her brother. A central issue in this judicial review is the manner in which the IAD dealt with alleged translation problems.
BACKGROUND
[2] A visa officer denied Ms. Vonn's application to sponsor the landing of her brother (Veasna Vonn) in Canada from Cambodia. The reason for this denial of application was the failure to establish that her brother was an orphan, which failure resulted in a determination that he was not a member of the family class (s. 2, 1978 Immigration Regulations).
[3] In the context of the IAD appeal, Vonn raised concerns about serious errors in the translation and requested an audit of the tapes. The evidence of particular concern to the Respondent was that of her brother, the Applicant, and of her uncle.
[4] Although the transcripts of the evidence were made available to the parties, they were not distributed. The Member had indicated that the issue of whether the hearing tapes would be audited was to be discussed at a hearing conference. As this turned out to be impossible, the Member requested written submissions in lieu of the hearing conference. Subsequent to receipt of the submissions, the Member decided that an audit of the tapes was not necessary.
[5] In the IAD's decision of May 10, 2005, it found that Vonn had demonstrated that her brother was an orphan and therefore that he should not have been excluded by the visa officer from the definition of "member of the family class".
[6] There were a number of evidentiary problems because of the turmoil in Cambodia during the 1990s, the destruction of records and the system of recording deaths. An important fact, but not the only fact, establishing that Vonn's brother was an orphan, was the cremation of his parents.
[7] The IAD accepted that there were contradictions in the evidence and that translation problems may have been involved. Two particular paragraphs of the IAD's decision are relevant:
[75] The Minister's representative would want me to conclude from the contradictions in the evidence concerning the cremation of the applicant's parents that they did not pass away. I am not prepared to go that far. The appellant's counsel raised problems concerning the interpretation of part of the applicant's testimony. Despite her request, no verification of the interpretation was made. Nonetheless, I take into account the young age of the applicant and the fact that, not only did he testify in the middle of the night as the other Cambodian witnesses, but he was awaken to give his testimony. Problems of interpretation are also a possibility.
...
[84] The Tribunal agrees that the evidence demonstrates that the death certificates of the applicant's parents were issued in accordance with the procedure in place at that time in Cambodia, at least where the deaths occurred. Moreover, it is to be noted that, from the evidence, in the days of the alleged deaths, permits for cremation could be issued orally. The Tribunal also agrees with the Minister's representative that there is a contradiction in the evidence concerning who set fire to the corpse of the applicant's father. This contradiction remains unexplained. Nonetheless, the undersigned is not prepared to go as far as the Minister's representative and to conclude that the deaths did not take place. The alleged death of the appellant's father would have occurred in 1992, when the applicant was eight years old. This is an element to take in consideration when evaluating his testimony, as well as the fact that, not only did he testify late at night as the other witnesses from Cambodia, but he was awaken to do so. Moreover, an interpretation problem is not excluded.
(emphasis added)
[8] It is the Minister's position that:
(a) the IAD erred in not ordering an audit of the transcript tapes; and
(b) the IAD breached the principles of natural justice by inducing the Minister to believe that translation problems were not in issue.
ANALYSIS
[9] While the standard of review of IAD decisions has generally been held to be patent unreasonableness (Satinder v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 784), the analysis of the standard of review must be performed in respect of each issue raised.
[10] As to the issue of failure to audit the transcript, that issue has two components - the right of a tribunal to conduct its own procedures and the evidentiary basis upon which the tribunal reached its conclusions. In my view, because those components are a mixture of law and fact, these are subject to a standard of review of reasonableness simplicitur.
[11] As to the alleged denial of natural justice issue, the standard of review is correctness.
[12] In considering the evidentiary basis for the failure to order the audit of the tape, it is important to bear in mind the central issue under discussion - proof of the death of Vonn's father. The evidence surrounding his cremation upon which the translation issue arises was only part of the evidence of the death of Vonn's father. There was much more evidence relevant to this matter including evidence of the system for issuing death certificates as well as the issuance and authenticity of the death certificate of the father. On the matter of the death certificate, the Applicant accepted the authenticity of the document but challenges its underlying facts.
[13] In considering the evidence of the underlying facts of the father's death, there was significant corroborative evidence. While there were some contradictions, the IAD explained that the brother's testimony was significantly affected by his age at the time of his father's death and the fact his testimony was taken at night - presumably meaning that he was less clear in his evidence. Interpretation/translation problems might have been a contributing factor to the inconsistencies but there is insufficient evidence that such possible problems materially affected the substantial issue to be determined.
[14] As a result, the IAD's decision not to audit the tapes was based on good reasons, the logic for this decision is clear and there is an evidentiary foundation for this determination. It was at least a reasonable decision.
[15] The Applicant also complains about the procedure by which the IAD reached its decision in that an anticipated conference call did not occur and the filing of submissions was substituted. The Applicant has not shown how this procedure was either unreasonable, unfair or inadequate. The audit of the tapes was one aspect of an alleged problem - one not raised by the Applicant nor was translation problems accepted as a fact by the IAD. It was no more than a possible problem.
[16] As the master of its own procedure, the IAD's decision to substitute one method of addressing a possible problem for another was within its mandate and was reasonable. To the extent that issues of fairness and natural justice arise from this decision to use a submission process (a process to which the Applicant made no objection), I accept the decision as correct as to fairness and natural justice.
[17] Lastly, the Applicant complains that it was misled (inadvertently) by the IAD to believe that translation was not an issue. Firstly, I can find nothing in the evidence to suggest that the IAD did anything to mislead the Applicant - there was no holding out as to a specific state of affairs.
[18] The case of Sivamoorthy v. Canada(Minister of Citizenship and Immigration), [2003] F.C.J. No. 591 is readily distinguishable. In Sivamoorthy, the Presiding Member made statements to the effect that the issue of identity had been disposed of and that no further questions needed to be asked on that issue.
[19] In this present case, there never were any such statements. Moreover, the issue of translation was only a possible contributing factor to some alleged contradictions in evidence and not critical to the determination of the truth of the facts in issue.
[20] In this regard, the Applicant has not shown that factor #4 of the five factors used in determining the content of procedural fairness (Suresh v. Canada(Minister of Citizenship and Immigration), [2002] 1 S.C.R. 3) - the legitimate expectations of the person challenging the decision where undertakings were made concerning the procedures to be followed - was compromised.
[21] It is somewhat unusual that a party would raise, as a denial of natural justice, an issue which it had not raised - in this instance, the adequacy of the translation. While its failure is not necessarily fatal to its claim, it is a relevant factor in determining whether a breach of natural justice occurred. For this reason and those earlier mentioned, I can find no basis for the Applicant's complaint in this regard.
[22] For all of these reasons, this application for judicial review will be dismissed.
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3345-05
STYLE OF CAUSE: THE MINISTER OF CITIZENSHIP AND IMMIGRATION
and
PHOUS SOPHAL VONN
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: January 17, 2006
REASONS FOR ORDER: The Honourable Mr. Justice Phelan
APPEARANCES:
| Ms. Elizabeth Kikuchi
|
|
| Ms. Silvia R. Maciunas
|
SOLICITORS OF RECORD:
| MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Ottawa, Ontario
|
|
| MS. SILVIA R. MACIUNAS Barrister & Solicitor Ottawa, Ontario
|