Date: 20040227
Docket: IMM-4382-03
Citation: 2004 FC 302
BETWEEN:
VINOD ANAND
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HARRINGTON J.
[1] Fundamental rights can never be sacrificed at the altar of administrative efficiency. Justice must not only be done but must be seen to be done which is why I granted Mr. Anand's application for judicial review when he was present in the Courtroom at Montreal yesterday. Here are my reasons.
[2] Mr. Anand comes to us from India. He was a Hindu living in the Punjab where the majority are Sikhs. He was a shopkeeper. He hired a Kashmiri worker whom he also housed in the room above his store. That was the source of his trouble.
[3] While the employee was away the police raided Mr. Anand's house on suspicion that the employee was a member of a Kashmiri terrorist group. Mr. Anand was suspected of aiding and abetting, and was mistreated by the police. He fled to Canada and seeks the status of a Convention refugee or a person otherwise in need of protection within the meaning of sections 96 and 97 of the Immigration and Refugee Protection Act, S.C. 2001, c. 27.
[4] Shortly before the scheduled hearing of his application his lawyer wrote to say he could no longer act. Mr. Anand appointed a new lawyer who asked for a postponement at the hearing as she was not fully prepared not only because of the freshness of the appointment but also because she was only able to obtain some of the documentation from his former lawyer a few days earlier. The Board refused to grant an adjournment.
[5] Mr. Anand had asked for a Hindi interpreter. The proceedings were in English. The questioning was in English, with Hindi translation. After a while Mr. Anand switched to Punjabi. The interpreter did not object and said he was perfectly able to translate from either Hindi or Punjabi into English and vice versa. Not so.
[6] The Board determined that Mr. Anand was neither a Convention refugee nor a person in need of protection.
[7] Mr. Anand, who is now represented by another lawyer, asks that the decision be set aside because of procedural unfairness and, if necessary, on the grounds that the decision was also flawed on its merits.
[8] The Board takes the position it is master of its own procedure and was perfectly within its rights in not granting the postponement. As to the faulty interpretation, and even though the uncontradicted evidence before me is that the interpretation was often wrong or incomplete, it submitted that the errors could not have made any difference in the result.
[9] As I mentioned at the end of the hearing the procedure was so flawed it was not necessary for me to reach any conclusion as to whether the Board made a patently unreasonable error in a relevant finding of fact. Mr. Anand literally was not heard. He was denied the natural justice of which we are so proud and so must be heard again.
[10] Mr. Anand was entitled to be represented by counsel. It happens that a rift develops in the solicitor-client relationship resulting in the dismissal of the solicitor or, as in this case, a request by the solicitor to withdraw from the record. New counsel needs time to adequately prepare and sometimes has difficulty obtaining documents from the previous solicitor. The exercise of a solicitor's lien comes to mind.
[11] There was no evidence that Mr. Anand was abandoning his claim, quite the contrary. There was no pattern of abuse of process. This was his first request for a postponement. The refusal to grant the postponement was unreasonable. In Mangat v. Canada (Minister of Citizenship and Immigration), [2000] FCJ No. 1301 Gibson J. said:
...The intention of the applicant to proceed was unquestionable. Here, the applicant's questioning of the reliability of his counsel developed over a period of time, only culminating after the notice of the hearing had been received. Here, there had been no earlier adjournment. Likewise here, the CRDD did not enquire as to the length of the adjournment being sought nor offer the applicant a short adjournment to enable new counsel to become familiar with the applicant and the facts of the applicant's claim, and to further consider joinder. As in Siloch, there was no indication here that a short adjournment would affect the immigration system or needlessly delay, impede or paralyse the conduct of this particular claim, thus bringing into play subsection 69(6) of the Act. As in Siloch, the impact of the denial of the adjournment here was to deprive the applicant of his right to a fair hearing.
Siloch is a reference to the decision of the Federal Court of Appeal in Siloch v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 10.
[12] Mangat also stands for the proposition that the standard of review of such a discretionary decision is reasonableness simpliciter.
[13] No doubt the Board has a heavy workload and tight scheduling. So does this Court. However, the right to a full and fair hearing cannot be compromised.
[14] As to the quality of the interpretation, the hearing was tape recorded. Mr. Anand was given leave to file a portion of the transcript which he arranged to have prepared by Daljit Singh. The Minister did not challenge the accuracy of the transcript or Mr. Singh's knowledge of the languages in issue. The transcript is riddled with comments such as "wrong translation" and "no translation done". There cannot be any burden upon Mr. Anand to show that the decision of the Board would have been different had the interpretation been correct. Mr. Anand was not heard in any proper sense of the word and that is all there is to it. In Mohammadian v. Canada (Minister of Citizenship and Immigration), [2001] 4 F.C. 85, Stone J.A., speaking for the Federal Court of Appeal, held that the interpretation provided to applicants must be continuous, precise, competent, impartial and contemporaneous; that it is not necessary for applicants to show they have suffered actual prejudice as a result of the breach of the standard of interpretation before the Court can interfere with the Board's decision, and that it is reasonable to expect an applicant, when he or she has difficulty understanding the interpreter, to object to the quality thereof at that time as a condition of being able to raise the quality of interpretation as a ground of judicial review.
[15] In this case there is no indication that there was anything wrong with the interpreter's Hindi or Punjabi. The problem was in the translation, or lack thereof, to and from English. The applicant could not have reasonably known of the mistranslation at the time of hearing. (Iantbelidze v. Canada (Minister of Citizenship and Immigration), [2002] FCJ No. 1143, 2002 FCT 932.)
[16] The Board cannot be faulted for providing a Hindi interpreter, as that is what Mr. Anand had requested. It was only during the course of the hearing that he switched to Punjabi. This is why to keep confusion at the new hearing at a minimum I ordered that, unless the parties agree otherwise, interpretation be between English and Punjabi.
[17] There is no question of general importance to certify for the Federal Court of Appeal.
"Sean Harrington"
Judge
Ottawa, Ontario
February 27, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-4382-03
STYLE OF CAUSE: VINOD ANAND
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: MONTREAL, QUEBEC
DATE OF HEARING: FEBRUARY 26, 2004
REASONS FOR ORDER : HARRINGTON J.
DATED: FEBRUARY 27, 2004
APPEARANCES:
Me Viken G. Artinian FOR APPLICANT
Me Nadia Sabik
Me Daniel Latulippe FOR RESPONDENT
SOLICITORS OF RECORD:
Me Viken G. Artinian FOR APPLICANT
Montreal, Quebec
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General for Canada
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