Vancouver, British Columbia, March 7, 2007
PRESENT: The Honourable Mr. Justice Teitelbaum
BETWEEN:
and
AND IMMIGRATION
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1] This is an application pursuant to s. 72(1) of the Immigration and Refugee Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a decision of Ross Pattee, a member of the Immigration and Refugee Board (the Board), dated June 30, 2006, wherein the Board held that the Applicant was not a Convention refugee pursuant to s. 96 of the Act and was not a person in need of protection pursuant to s. 97 of the Act.
II. Facts
[2] The Applicant, Mr. Singh, is a Sikh from the Punjab in India. Mr. Singh makes his refugee claim on the basis of his connection to a Mr. Mohammed Abdul – a friend who Mr. Singh was visiting when Mr. Abdul's house was raided by the police. The police found an AK-47 with the name of a terrorist organization – "Lashkare-Toiba" – engraved on the butt of the weapon. Mr. Singh, as a result of being at his friend's house, was arrested and tortured for ten days. He was released upon paying a 50 000 rupee bribe. The injuries he received required another ten days of hospital treatment.
[3] After Mr. Singh returned home, the Jammu and Punjab police continued to seek him and raided his house in November 2003. Mr. Singh was not home that day and went into hiding. On January 14, 2004, he fled his village to Delhi and stayed in a hotel for four months.
[4] On April 14, 2004, Mr. Singh arrived in Canada to visit his ailing father and avoid arrest. When it became clear to the Applicant that he could not return to India, Mr. Singh filed a refugee claim on January 27, 2005.
III. Member's Decision of June 20, 2006
[5] The Board did not take issue with the Applicant's identity.
[6] However, the Board found that the Applicant was vague, confused as to dates and, in a number of instances, he provided contradictory testimony.
A. Applicant's Alleged Injuries
[7] The Board took issue with the fact that the Applicant, during oral testimony, said that the police had broken his right leg. This was supported by a medical report by a Dr. Benipal. However, in his Personal Information Form (PIF) the Applicant said it was his left leg. The Board drew a negative credibility inference as the Applicant was given the opportunity to correct his PIF at the beginning of the hearing, but did not, and agreed that his PIF was accurate.
[8] During the hearing, the Applicant testified to having six fingers broken. This was not mentioned in his CIC interview or in the PIF. The Applicant's explanation that he was never asked about his fingers was rejected by the Board as the immigration officer specifically asked "what happened at the hospital?" The Applicant responded to this question explaining injuries to his leg and back. The Board also noted that the medical report from Dr. Benipal was just over two pages long and was quite detailed – yet does not mention broken fingers. The medical report did mention "lesser contusions…and abrasions"; however, the Board did not believe that six broken fingers would qualify as a contusion or abrasion. Additionally, Dr. Benipal made a referral to a bone specialist for the leg, yet made no mention for the treatment for the broken fingers.
B. The Lack of Subjective Fear
[9] The Board was of the opinion this was the most significant defect in the Applicant's claim. The Board took issue with the Applicant remaining in Delhi for four months, purportedly to obtain a visa. The Applicant testified that he paid an agent 800 000 rupees ($19,000 CAN), yet did not claim refugee status immediately upon arrival. Also, the Applicant did have a valid visa that expired on April 28, 2004, and was denied his request for extension until October 28, 2004. The Board took issue that the Applicant did not seek refugee protection rather than seek an extension on his visa.
[10] The Applicant testified that he came to Canada to visit his ailing father and he always planned on returning to India. It was only after he was in Canada that the situation in India changed and he did not wish to return. This was why the Applicant did not claim refugee status immediately upon arrival. The Board did not accept this explanation as representing the acts of someone who was fearful of returning to India.
[11] The Board noted that a village Sarpanch (elder) filed an affidavit that the Applicant had to flee India for fear of losing his life. When questioned on this, the Board was of the opinion that the Applicant became confused and testified that he did flee India to save his life – not to visit his father. The Board was clear that they rejected this story and the Applicant was merely using a refugee claim as a method of remaining in Canada.
C. Translation
[12] During final submissions, counsel for the Applicant formally objected to the translation. This occurred after the testimony which, according to the Board, did not involve interpretation problems.
[13] The Board notes that, at times, the Applicant's counsel would assist in the translation of the testimony. However, the answers given were logical in their relation to the question and the Board re-questioned the Applicant where there was confusion. Also, the Board noted that the Applicant did not seek clarification on an issue before answering the questions.
[14] The Board, in its reasons, relies upon R. v. Tran, [1994] 2 S.C.R. 951, for the proposition that translation is held to a high standard, not a standard of perfection. The Board was of the opinion that the translation was competent and the Applicant received a fair hearing.
IV. Most Relevant Legislation
[15] The Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, s. 14; and sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
V. Issues
Issue #1 Did the Board breach the principles of procedural fairness by failing to provide a competent and precise interpreter during the Applicant's refugee claim?
Issue #2 Did the Board act in a perverse manner in making their credibility findings?
VI. Standard of Review
A. Translation
[16] The adequacy of the interpretation provided goes to the fairness of the hearing; therefore, no pragmatic and functional analysis is required. It is for the Court to determine whether the hearing was conducted in accordance with both the requirements of procedural fairness. Per Saravia v. Canada (Minister of Citizenship and Immigration), 2005 FC 1296; [2005] F.C.J. No. 1595.
B. Credibility
[17] The standard of review when determining credibility issues is patent unreasonableness as set out in Umba v. Canada (Minister of Citizenship and Immigration), [2004] F.C.J. No. 17.
[18] In Chen v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 551 at para 5, the Federal Court of Appeal held that only "…where the evidence viewed reasonably is incapable of supporting the tribunal's findings will a fact finding be patently unreasonable."
VII. Applicant's Arguments
Issue #1 – Main Submission
[19] The Applicant points out that this was a "new" translator, as it appears this was the first refugee translation this individual was involved in.
[20] The Applicant relies on Mohammadian v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 371 (Aff'd [2001] 4 F.C. 85 (C.A.)) for the considerations when determining if an applicant received fair interpretation as required under s. 14 of the Charter. Justice Pelletier held:[1]
-- in general terms, the standard of interpretation is high but not so high as perfection.
-- continuous: without breaks or interruptions i.e., interpretation must be provided throughout the proceedings without any periods where interpretation is not available.
-- precise: the interpretation should reflect the evidence given without any improvement of form, grammar or any other embellishment.
-- impartial: the interpreter should have no connection to parties or interest in the outcome.
-- competent: the quality of the interpretation must be high enough to ensure that justice is done and seen to be done.
-- contemporaneous: the interpretation must be available as the evidence is given, though not necessarily simultaneously.
[21] The Applicant asserts that this issue was raised at the hearing prior to the final submissions as the Respondent suggests. Rather, the Applicant argues the issue as to the adequacy of translation was raised at several occasions. Specifically, counsel upon direct examination of the Applicant put the following questions:
Counsel: "Did you have any problem to understand the interpreter?"
Applicant: "Yes"
Counsel: "How much difficulty did you have to understand all the questions interpreted to you by the interpreter present here in this room?"
Applicant: "Sometimes it was a lot difficult and it was hard to understand."
Counsel: "If you did not understand the interpreter, why you are answering those questions"?
Applicant: "I was telling you as I understood."
[22] The Applicant also points out several examples of erroneous translation during the hearing:
a) Where the translator mistakes the issue of the delayed departure from India, with the departure from Canada.
b) Where the translator had to be explained what an internal flight alternative was.
c) Where the translator is explained that he may not have discussions with the applicant without translating all that is said. Also, that the translator could not determine the translation of a Personal Information Form.
d) Where the translator mistook the words "AK-47" for "documents" referring to when the police searched the applicant's friend's house. It appears that the engraving on the butt of the weapon implied to the translator that there was written documents.
e) Where the translator had difficulties translating how a wooden "stick" was used to beat the applicant.
f) Where the applicant could not understand the translation of the presiding member's question with respect to why the applicant came to Canada in the first place. The applicant points out that when he was questioned by his own counsel in direct examination, he testified that he came to Canada because he was "afraid…of the Punjab police and Jammu Kashmir police" because of his relationship with Mohammed Abdul. Therefore, the applicant uses this explanation to support that the Board did not understand the evidence that was presented and it erred by finding the applicant "uncategorically" came to Canada to visit his father.
[23] The Applicant argues that since this case turns on credibility, the translation errors become even more pertinent. The lack of credibility and subjective fear are in large part due to the inability of the Applicant to convey his story accurately to the Board.
Issue #2 - Specific Credibility Issues
[24] The Applicant relies on Akhigbe v. Canada (M.C.I.) 2002 FCT 249, [2002] F.C.J. No. 332 for the proposition that the omission of the broken fingers on the PIF is a minor or elaborative detail and should not be the basis for a negative credibility finding.
[25] Further, the Applicant argues that the medical report was prepared two and a half years after the injuries and Dr. Benipal cannot be expected to recall all the injuries sustained. In the further alternative, the Applicant argues that the Board is not an expert on medical treatment and cannot conclude that contusions or abrasions would not also encompass broken fingers.
VIII. Respondent's Arguments
Issue #1 - Interpretation
[26] The Respondent argues that the Board took sufficient steps to ensure the interpretation was adequate. The Board clarified the questions when there was confusion. Additionally, the Applicant's own counsel assisted in the translation to clarify any errors and the Applicant himself understood some English. The Board was clear on numerous occasions that, should the Applicant not understand any of the questions, he could seek clarification.
[27] The Respondent agrees that the standard of review is correctness on this issue; however, correctness does not require perfection, as explained in Mohammadian.
[28] The Respondent points out that the Applicant has not provided affidavit evidence to show there was a misunderstanding of the evidence; therefore, there is no basis for a re-determination.
Issue #2 - Credibility
[29] The Respondent argues that it is not patently unreasonable for the Board to have drawn the inferences it did as, in addition to the broken fingers not being mentioned in the medical report, it was not mentioned in the earlier interviews and submission of the Applicant. The Respondent relies on the Oxford dictionary to support that abrasion is a "scraping off" and a contusion is a bruise without breaking the skin. Therefore, it is not unreasonable for the Board to have rejected that these passages in the medical report were referring to the broken fingers.
[30] Additionally, the Applicant was clear that his purpose for coming to Canada was to visit his father, not because of a fear of subjective harm.
IX. Analysis
Issue #1
[31] I must state that Justice Pelletier in Mohammadian was clear that:
…complaints about the quality of interpretation must be made at the first opportunity, that is, before the CRDD, in those cases where it is reasonable to expect that a complaint be made…. If the interpreter is having difficulty speaking the applicant's own language and being understood by him, this is clearly a matter which should be raised at the first opportunity. On the other hand, if the errors are in the language of the hearing, which the applicant does not understand, then prior complaint may not be a reasonable expectation.[2]
[32] The Respondent does not seem to be arguing that the doctrine of waiver is applicable on these facts.
[33] I agree with the Applicant that he did bring up the issue of translation prior to the closing remarks as it was brought up at the commencement of the direct examination of the Applicant. In response, the Presiding Member said that "We've just spent the last three hours in this hearing together and I and the RPO have asked questions in various ways and the answers have been, in my view, consistent with the questions being asked." Further, the Presiding Member stated "Well, Mr. Sandhu, you, yourself have been assisting throughout with the interpretation. I find it almost offensive that you're mentioning this three hours into the hearing."
[34] Thus, while the Board may have erred in its reasons as to when the initial objection occurred, it does not change the fact that three hours had passed, and the Applicant's counsel had not objected, but instead assisted the proceedings. I agree with the Respondent that – for the most part – the questioning flowed fairly smoothly and the Applicant appeared to answer most of the questions in a manner that would seem logical with the question posed. The exceptions / confusion seemed to arise from the contradictions and omissions in the Applicant's PIF. In my opinion, it could certainly be open to argument that the confusion on these particular questions was more in relation to the inability to explain the omissions and discrepancies and not the translation per se.
[35] I also note that the Applicant was asked if he understood the translator at the outset of the hearing.
[36] This leaves the competency of the translation at issue. This standard requires that the interpretation "must be of a high enough quality to ensure that justice is done and seen to be done."[3]
[37] After a reading of the complete transcript of the hearing, it is clear the interpreter failed to give a proper translation of what was said.
[38] I am of the opinion that if any one of the translation issues occurred as an isolated incident, I would dismiss this review. However, given the quantity of errors identified by the Applicant, I cannot be sure that all of them have been addressed and I am unsure if the Applicant received a fair hearing.
[39] The Court held in Saravia, above, that where interpretation is required, all concerned must be prepared to use short sentences, speak slowly, use alternate words or phrases where a word or phrase is not understood or easily interpreted, and generally act in good faith. Given that in the present case there were several requests by the Board for the Applicant (and the translator) to speak in "chunks" the present case has run afoul of the guidance of Saravia. Additionally, given the repeated reminders from the Board for the interpreter to translate everything that was said by the Applicant, I would suggest that this increases the concerns that important testimony was missed and that the Applicant may not have received a fair hearing.
[40] I also note that, while it was helpful for counsel to properly translate some of his client's testimony, I am concerned as to what the result would have been had counsel not spoken the same language as his client. I do not believe it is counsel's job to provide adequate translation. That obligation falls upon the Respondent and the fact that they had to receive repeated assistance from counsel implies to me that they fell short of that obligation.
[41] I agree with the Respondent that the Board told the Applicant that he could ask for clarification if it were needed. However, in my opinion, this is not a sufficient safeguard as it does not address the core issues of the translator asking the questions improperly or in his giving the answers back to the Board in a potentially inaccurate manner.
[42] While I have no doubt that the Board and the translator acted in good faith, given the quantity of the errors I would allow the judicial review on this point.
X. Conclusion
[43] Although there is no requirement for perfection in the translation, in this instance the translation fell short of what should be expected for justice to "be seen to be done".
[44] I allow the judicial review and remit the matter for a new hearing before a different Board.
[45] No question was submitted for certification.
JUDGMENT
The judicial review is allowed. The matter is remitted for a new hearing before a different Board. No question was submitted for certification and none will be certified.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-3852-06
STYLE OF CAUSE: PALWINDER SINGH v. MCI
PLACE OF HEARING: Vancouver, BC
DATE OF HEARING: March 6, 2007
REASONS FOR JUDGMENT AND JUDGMENT: TEITELBAUM D.J.
APPEARANCES:
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Mr. Christopher Elgin
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Mr. Peter Bell
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SOLICITORS OF RECORD:
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Elgin, Cannon & Associates Barristers & Solicitors Vancouver, BC |
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John H. Sims, Q.C. Deputy Attorney General of Canada
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