Date: 20060928
Docket: IMM-7494-05
Citation: 2006 FC 1157
Ottawa, Ontario, September 28,
2006
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
QI ZHAO and
YIXIAO ZHANG
Applicants
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Background
[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.
“Michael
L. Phelan”
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