Ottawa, Ontario, September 28, 2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
YIXIAO ZHANG
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
[1] The Immigration and Refugee Board (Board) determined that neither Qi Zhao nor her son Yixiao Zhang were Convention refugees. The Board found specifically that the claim had no credible basis. The Applicants have sought judicial review of that determination.
II. Facts
[2] The Applicants based their refugee claim on religious persecution in China against them as Christians. Qi Zhao claimed that the police ordered her employer to punish her which resulted in her demotion from teacher to cleaning staff.
[3] The Applicant, Qi Zhao, recited numerous incidents of state persecution, physical beatings, persecution of friends and her eventual firing by her employer, all as a result of her Christian beliefs.
[4] The Board’s overall conclusion was that Qi Zhao was a liar and that her whole story was a series of lies. The Board used strong language in describing their credibility concerns, phrases such as:
· “The claimant’s penchant for deceit came to the fore right at the beginning of the hearing”;
· “this pattern of deceit permeated every facet of her evidence”;
· “once again the serpent of inconsistency has reared its ugly head”;
· “She is deceitful and cannot be trusted to tell the truth”; and
· “I do not find one scintilla of truth in any of her evidence except …”.
[5] The Applicants say that these comments confirm that there was bias or a reasonable apprehension of bias which was exhibited at the hearing through comments, questions and interruptions and which were crystallized in the decision.
[6] The Applicants raise three issues:
· was there a reasonable apprehension of bias or bias?
· was procedural fairness breached because the Applicants were not given an opportunity to put their case forward?
· Was procedural fairness breached in finding that the claim has no credible basis?
A. Bias
[7] The test for reasonable apprehension of bias is well established in Committee for Justice and Liberty v. Canada (National Energy Board), [1978] 1 S.C.R. 369 in that the apprehension of bias must be a reasonable one, based upon an informed person viewing the matter practically and realistically and having thought the matter through.
[8] While there was no objection to the Board’s conduct, such failure is not a bar to relief nor does it constitute a waiver. The requirement to object, while a general principle, is not an absolute dictate; it depends on the circumstances including when it would be reasonable to conclude that energetic questioning actually revealed a bias or reasonable apprehension. (Chaudhry v. Canada (Minister of Citizenship and Immigration), 2006 FC 1015, [2006] F.C.J. No. 1280 (QL))
[9] I have read the transcript in detail. While the language of the decision is colourful, it is open to a decision-maker to make strong findings of fact. The transcript reveals frustration with evidence that is, put in its best light, confusing.
[10] To cross the line to “reasonable apprehension of bias”, the evidence giving rise to that apprehension must be clear and substantial. In my view, the evidence taken as a whole did not rise to that level.
B. Opportunity to put in case
[11] On this issue, there is one particularly troublesome aspect. There was substantial evidence about Qi Zhao’s mother calling her from a hospital to report that neighbours had told her mother that police were coming to the mother’s house. In response to a question from the Board as to the mother’s location at the time of the telephone call, she responded that she was at home.
[12] This issue was obviously significant to the Board for it held, immediately following a description of the issue:
In a misguided attempt to cover her inconsistency she now said that when she said that her mother called from home she meant she had called from China, (as if the panel thought her mother lived anywhere else besides China). This blatant attempt at deception, as indicated earlier, has been the hallmark of this claimant’s testimony and her evidence. She is not credible, and her evidence lacks reliability.
[13] A review of the transcript reveals an element of by-play between the Board and the interpreter. In one instance when the interpreter mentioned that she did not understand the Board’s question, the Board member responded that he did not care if the interpreter understood the question, she was just to translate the question. This exchange shows a surprising misunderstanding of the role of a translator in conveying the real meaning of the words and in one language to another. There are other instances of the translator having difficulty, possibly due to the confusing testimony.
[14] The Applicants put in an affidavit from Jun Cai, a law clerk student at the office of the counsel for the Applicants. She is fluent in Mandarin and English and had reviewed the tapes of the hearing.
[15] Cai stated that in regard to the “home” incident, the translator did not accurately convey the proper meaning of the word “in this instance and in other instances”. There was no cross-examination on this affidavit and no rebuttal evidence filed.
[16] Given the central role that this issue of “home” played in the Board’s reasons, I am not satisfied that the Applicants were given a full opportunity to put in their case. Problems with translation, often raised in this Court but seldom established, can deprive a person of an opportunity to be heard – a central principle of natural justice and fairness.
[17] For this reason, this application for judicial review must be granted, the decision of the Board quashed and the matter remitted back for a new determination by a different panel.
[18] It is unnecessary to make any conclusions on the matter of “no credible basis”. There is also no question for certification.
JUDGMENT
IT IS ORDERED THAT this application for judicial review is granted, the decision of the Board quashed and the matter remitted back for a new determination by a different panel.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-7494-05
STYLE OF CAUSE: QI ZHAO and YIXIAO ZHANG
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: September 25, 2006
APPEARANCES:
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Ms. Wennie Lee
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Ms. Negar Hashemi
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SOLICITORS OF RECORD:
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LEE & COMPANY Barristers & Solicitors Toronto, Ontario
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MR. JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, Ontario
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