JUDGMENT AND REASONS

[1] The Applicants are a family from Colombia who seek judicial review of the Refugee Protection Division (RPD) decision refusing their claim on credibility grounds. I am granting this judicial review, solely on the procedural fairness issues that arose from translation errors that were consequential to the RPD’s overall credibility findings.

I. Background

[2] The Applicants are citizens of Colombia, who claim to fear the National Liberation Army (ELN). Their fear arose following the killing of a cousin in prison by three ELN members on July 6, 2015. As a result, the Applicants filed a complaint and initiated a lawsuit against the ELN members. They claim to have received death threats after taking this action.

[3] In January 2020, an attack by men on motorcycles forced the Applicants to relocate. After this event, the Applicants claim that, in October 2021, ELN members threatened a relative in her home, and she later died of a heart attack.

[4] The Applicants left Colombia in November 2021 and travelled to the United States (US) where they remained for 22 months.

[5] They entered Canada in September 2023 and made a refugee claim.

II. Decision under review

[6] The RPD rejected the Applicants’ refugee claim, finding several aspects of the Applicants’ narrative lacked credibility. First, the RPD found their testimony regarding the alleged attack in January 2020 lacked credibility because of inconsistencies regarding the date. The Applicants’ Basis of Claim (BOC) indicated that the attack occurred on April 28, 2020, but the Applicants’ supporting letters indicated that the attack occurred on January 28, 2020. The Applicants amended their BOC to match the January 28, 2020 date in the letters.

[7] In oral testimony, the Applicant Mr. Paez Barahona allegedly stated that the attack occurred on January 18, 2020, which contradicts his amended BOC and supporting letters. He also allegedly stated that he was attacked by three men, whereas the supporting letters indicated that they were attacked by four men. Finally, the letters indicated that Mr. Paez Barahona, his aunt, and her husband were attacked, but Mr. Paez Barahona originally testified that only he and his aunt were attacked. Based on these inconsistencies, the RPD concluded that the alleged attack did not occur and that the Applicants’ overall credibility was challenged.

[8] The RPD also identified inconsistencies between the Applicants’ narrative during the interview when they entered Canada, their narrative in their BOC and at the RPD hearing.

[9] The RPD also made negative credibility findings on the Applicants’ intention to come to Canada and their subjective fear of harm, as they had been in the US for 22 months without seeking refugee protection.

[10] Finally, the RPD raised credibility issues with the Applicants’ supporting documentation. This evidence included supporting letters regarding the January 2020 attack. The RPD rejected these letters, based on the inconsistencies in the Applicants’ testimony about the attack and concerns with their independence.

[11] The RPD found the Applicants were not credible, and their refugee claim was dismissed.

III. Issues

[12] On this judicial review, the Applicants raise procedural fairness arguments, and they argue that the RPD decision is not reasonable. As the procedural fairness issue relating to the interpretation errors is determinative, I will not address the other issues raised.

[13] Procedural fairness is considered on a correctness-like standard, where the Court asks “whether the procedure was fair having regard to all of the circumstances” (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at para 54).

IV. Analysis

[14] The Applicants argue that they were denied procedural fairness due to translation errors. In support, they filed an Affidavit from another interpreter who listened to the RPD hearing recording and identified the following errors:

1. The Board member asked the claimant to describe a 2020 incident mentioned in the narrative. The claimant begins by stating the date was 28 January 2020. The interpreter omitted the date in the interpretation.

2. The claimant described an incident of men attacking his aunt and himself. The interpreter asks the claimant to clarify how many men, the claimant says “several” which was then interpreted as “three” men.

3. The Board member asked when this occurred. The claimant answered 28 January 2020 which was interpreted as 18 January 2020.

4. At times the interpreter correctly interprets in the first person and at other times interprets the response in the third person saying “he” or “they”.

[15] The Respondent does not dispute that these errors occurred in translation but argues that the errors are not consequential to the RPD decision, as there were other credibility findings sufficient to uphold the overall findings of the RPD.

[16] For the translation errors to amount to a breach of procedural fairness, the Applicants must demonstrate that the translation errors were: (1) consequential, in that the errors are real, significant, serious or non-trivial; (2) related to the applicant’s ability to answer questions or present their refugee claim; and (3) material to the decision-maker’s findings (Paulo v Canada (Citizenship and Immigration), 2020 FC 990 at para 32 [Paulo]; Baloch v Canada (Citizenship and Immigration), 2022 FC 1373 at para 26; Ferrera v Canada (Citizenship and Immigration), 2022 FC 547 at para 28).

[17] To consider if the translation errors impacted the RPD analysis, I turn to the findings of the RPD. In its analysis of the January 2020 attack, the RPD states that “[t]he claimants were inconsistent on a major event in their narrative which causes the panel to doubt their allegations and credibility overall.” The RPD cited inconsistencies arising from the translation of “January 28” as “January 18” and “several” as “three”:

[7] …When asked about the event in testimony, the PC [Principal Claimant] stated that three men attacked him and his aunt on January 18, 2020. Both letters of support, however, indicate that four men attacked the PC, his aunt and her husband. The claimant evolved his response to indicate that the three (PC [Principal Claimant], Aunt & Husband) of them were attacked when confronted with the discrepancy. The PC also changed his response to four attackers when confronted with the discrepancy about the number of men who allegedly attacked them.

[8] The panel cannot ignore that the narrative amendment with date change was tendered simultaneously with the supporting documents and that the claimant was not consistent with that date in testimony. Further that the PC evolved multiple answers to be consistent only after he was confronted with the inconsistencies in his documents and testimony. The panel also cannot ignore that the notarized letter from H.D. states ‘THIRD: She declared under oath that on January 28, 2020, two motorcyclists…’. The panel would reasonably expect the claimant to be consistent on the dates of a central event to the allegations. … The panel draws an adverse inference from the evolving and inconsistent responses of the PC and the inconsistent supporting documentation. The panel finds that the inconsistencies and evolving testimony undermine the PC’s credibility and overall allegations. Additionally, the panel finds that the allegations of an attack on January 28, 2020, are undermined. [Emphasis added.]

[18] The Applicants were not asked about the discrepancy between the testified date of January 18, 2020, and the documentation date of January 28, 2020. If the RPD had addressed the discrepancy, the translation error may have been exposed. Instead, the RPD made a negative credibility findings against them and determined that the Applicants had failed to establish that the January 2020 attack occurred. In my view, the translation errors clearly contributed to this conclusion as the January event was considered a core event to their refugee claim. Further, the credibility concerns from the Applicants’ testimony surrounding the January event were used to discredit supporting letters from affiants who claim to have witnessed the January 2020 attack .

[19] Although the Applicants had an opportunity to correct the translation of “several” and “three” during the hearing, this was not identified as an error arising from the translation, and this correction caused the RPD to make a negative credibility finding on the grounds that the Applicants’ evidence shifted during their testimony.

[20] I am satisfied that the translation errors prevented the Applicants from fairly presenting their claim, resulting in negative credibility findings against them. This was contrary to the requirement that interpretation before the RPD be “precise” (Mohammadian v Canada (Minister of Citizenship and Immigration), 2001 FCA 191 at para 4).

[21] The Applicants must also demonstrate the translation errors were material to the RPD’s credibility findings. However, the Applicants do not need to demonstrate that the error underpinned a key finding in the RPD decision (Paulo at para 29).

[22] In the RPD’s finding on credibility, it explicitly notes that the Applicants failed to establish that the alleged attack occurred. At the beginning of its analysis on the January 2020 attack, the RPD states that the claimants were inconsistent on this event, which was a central event in their narrative, causing the RPD to doubt their allegations and overall credibility. These inconsistencies were also used to undermine the credibility of the supporting letters. Based on these findings, I am satisfied that the translation errors were material to the RPD’s credibility findings.

V. Conclusion

[23] Overall, I am satisfied that the Applicants have demonstrated that the translation errors were material (Paulo at para 29).

[24] This judicial review is granted. There is no question for certification.

JUDGMENT IN IMM-6314-25

THIS COURT’S JUDGMENT is that :

1. This judicial review is granted and the Applicants’ RPD claim shall be redetermined by a different decision maker.

2. There is no question for certification.

FEDERAL COURT

SOLICITORS OF RECORD

APPEARANCES :

SOLICITORS OF RECORD: