Date: 20000920
Docket: IMM-4818-99
BETWEEN:
JAZXHIU, ILIR
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
HANSEN J.
[1] The applicant seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("Board") dated September 13, 1999, wherein the Board determined the applicant was not a Convention refugee.
[2] The applicant is a citizen of Albania and a member of the country's Roman Catholic minority. His claim was based on his fear of persecution by the police and Muslim fundamentalists on the grounds of his political opinion and religion.
[3] The following facts are taken from the applicant's Personal Information Form, the transcript of the hearing and the reasons for the decision. In 1990, the applicant fled Albania for Germany. Following an unsuccessful refugee claim in Germany, he returned to Albania in February of 1998. While living in Korce, the applicant helped two friends build a church in return for food and shelter. While he was working on this project, members of the Muslim faith openly insulted the claimant and his friends. In May 1998, the unfinished church was burned and the applicant was injured. No help was provided by the police. The applicant and his friends sent out a flyer requesting support for the church and the Democratic Party.
[4] During this period of time the applicant also attended public meetings and spoke out against the Socialist Party.
[5] On July 1, 1998, the applicants and his friends attended a meeting of the Socialist Party where they criticized the party. The next day the applicant was arrested and charged with "hostile activity to the national interest". According to the applicant he was tortured and detained in jail until August 25, 1998. While in a hospital for medical treatment, he escaped and later left Albania for Canada.
[6] It appears from the Personal Information Form, that immediately prior to this latter incident, the applicant was involved in a conflict which resulted in his arrest. He apparently gave a false name to the police and was released 20 hours later.
[7] The applicant first submits he was denied the right to a fair hearing due to faulty interpretation and excessive interruptions by the Board members.
[8] The hearing was conducted in the English language with the assistance of a German interpreter. It is apparent from the transcript one of the panel members and counsel for the applicant understood the German language. A reading of the transcript reveals that through out the hearing there were problems with the interpretation. Initially, the interpreter had considerable difficulty maintaining the pace of the proceedings. As well, in a number of instances the panel member or counsel for the applicant assisted the interpreter when he did not understand the applicant. At times, counsel for the applicant interjected to correct a perceived error in the interpretation.
[9] Counsel for the applicant submits that having regard to the obvious difficulties with the interpretation and because one of the panel members had the advantage of being able to listen to the evidence in the language in which it was spoken, this effectively excluded the other panel member from the hearing.
[10] In this case, although there were obvious difficulties with the interpretation, given the clarifications and corrections made at the time of the hearing and in the absence of evidence which would point to any other errors, I am not persuaded that these difficulties alone contributed to a misapprehension of the evidence by either Board member.
[11] The main concern, however, centres around the applicant's understanding of the proceedings. In particular, his comprehension of the questions being posed. The applicant filed an affidavit on this judicial review stating at paragraph 8:
| During the course of my hearing, during the break, I complained to my solicitor that I was having difficulty understanding the interpreter during and that the interpreter was very loud. My solicitor told me that the interpreter was "doing the best he could" and that, in any event, one of the Tribunal members spoke German as did the RCO. |
[12] In Ming v. The Minister of Immigration and Citizenship (1990) 107 N.R. 296 at 300 MacGuigan J.A. adopting Wilson J.'s statement, stated: "It is common ground that, as Wilson J., put it in Société des Acadiens du Nouveau-Brunswick Inc. and Association des conseillers scolaires francophones du Nouveau-Brunswick v. Minority Language School Board No. 50 and Association of Parents for Fairness in Education, Grand Falls District 50 Branch, [1986] 1 S.C.R. 549 at page 622: "the ability to understand and be understood is a minimal requirement of the process"...
[13] Here, the fact the applicant complained of the difficulties he was having at the first opportunity and immediately following a particularly difficult exchange where there were obvious problems lends credibility to this assertion. As well, the applicant's lack of comprehension is evidenced by the number of instances found in the transcript where the applicant's answers were not responsive to the questions being posed. It was not a matter of evasiveness on the part of the applicant but rather a complete lack of coherence between the questions and the answers.
[14] The evident frustration and impatience of the panel members led to numerous interruptions in an attempt to have questions answered. In the end, some of the questions were lost and never answered.
[15] The applicant also submits that the Board misapprehended the evidence and ignored relevant evidence. In its reasons, the Board stated "the claimant tried, in vain, to portray himself as a high-profile, politically motivated person", however there is nothing in the evidence to support this finding. Further, with reference to the incident where the applicant gave a false name to the police, the Board questioned why he wasn't punished for the incident because "impersonation is a serious indictable offence and in spite of this he was not sentenced or punished in any way". Here, the Board assumes the authorities were aware of the use of the false name, however there is no evidence to support this assumption.
[16] The Board also questions the applicant's credibility regarding his arrest for "hostile activities against the national interest" because he was never sentenced. However, the evidence is that the applicant escaped. As well, the Board ignored the corroborating documentary evidence submitted by the applicant in the form of a certificate from the District Court of Korce which states:
| We hereby certify that Ilir Bardhyl Jazxhiu was arrested in the 2nd of July 1998 for his democratic activity and for his anti-islamic position. |
| Ilir Bardhyl Jazxhiu fled the country in the 27th of August 1998. |
| Prosecution of Ilir Bardhyl Jazxhiu continues according to the act 57364/23 since the 2nd of July 1998. |
[17] The cumulative effect of the interruptions for clarification, correction, attempts to have the applicant address the question being posed is such that the applicant simply did not have a fair opportunity to put forward the basis of his claim. This, coupled with the misapprehension of the evidence requires that this claim should be remitted back for a rehearing.
[18] Accordingly, the decision, dated September 13, 1999 is set aside and the matter is remitted back for rehearing by a differently constituted panel.
[19] Counsel for the applicant suggested a question for certification should the Court make a ruling with respect to a particular issue raised at the hearing. As it was not necessary for the purpose of these reasons to deal with this issue, no question will be certified.
"Dolores M. Hansen"
J.F.C.C.
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