Date: 20020904
Docket: IMM-3335-01
Neutral Citation: 2002 FCT 932
BETWEEN:
DAVIT IANTBELIDZE
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
HENEGHAN J.
INTRODUCTION
[1] Mr. Davit Iantbelidze (the "Applicant") seeks judicial review of the decision of the Immigration and Refugee Board, Convention Refugee Determination Division (the "Board") dated June 6, 2001. In its decision, the Board declared the Applicant's claim to be abandoned.
FACTS
[2] The Applicant is a citizen of Georgia who claimed refugee status upon his entry to Canada on the basis of fear of persecution in Georgia on the grounds of his political opinion and alleged membership in a singing group that performed at rallies. His Personal Information Form ("PIF") alleged severe beatings at the hands of Georgian officials and includes documentary evidence supporting his claims of physical injuries.
[3] The Applicant's hearing before the Board was scheduled for February 12, 2001, pursuant to a Notice to Appear dated October 24, 2000. The Applicant did not appear for the hearing on February 12, 2001 but counsel appeared on his behalf and advised the Board that he was ill and unable to attend.
[4] The Board commenced abandonment proceedings and advised the Applicant's counsel that at the show cause hearing, the Applicant should appear with a medical certificate providing details as to the nature of the Applicant's illness, its duration, the treatment given, medication prescribed and the reason why the Applicant could not appear on February 12, 2001.
[5] The Applicant and his counsel appeared at the abandonment proceedings scheduled for April 5, 2001. At this hearing, the Applicant provided a note from his doctor, giving a reason for his non-attendance on February 12, 2001.
[6] The Board rejected the sufficiency of this note which was handwritten on a doctor's prescription pad, dated February 12, 2001 and stating "this letter is to confirm that the patient was treated in our office for medical reasons".
[7] The Board noted that on that date, when the Applicant was allegedly ill, he was able to walk to and from the doctor's office for twenty minutes each way, pick up bread, arrange to meet his interpreter to give her the medical note, take a bus ride to meet the interpreter, return home and call his lawyer.
[8] The Board drew a negative inference from the Applicant's failure to take the medication which was prescribed for him. It further drew a negative inference from the lack of consistency in certain answers given by the Applicant during his examination. The Board concluded that his evidence had become self-serving.
[9] The Board did not believe the Applicant when he said that he was unable to have a medical report concerning his condition on February 12, 2001 issued on February 15, 2001. It noted that he referred to the doctor in the masculine when she was a woman. It found that the Applicant had not been diligent in pursuing his claim and concluded that the claim had been abandoned.
APPLICANT'S SUBMISSIONS
[10] The Applicant relies on the Affidavit of Sofia Taboukachvili, filed as part of his Application Record, as evidence that the interpretation provided at the abandonment hearing was deficient, contrary to the principles of fairness and natural justice. He argues that the interpretation must meet the requirements of the Charter of Rights and Freedoms (the "Charter"), section 14 and that this requirement extends to hearings before the Refugee Division. In this regard, he relies on the decision in R. v. Tran (1994), 32 C.R. (4th) 34 (S.C.C.).
[11] He submits that section 14 of the Charter requires a continuous, precise, impartial, competent and contemporaneous translation. Any lapse of these requirements relative to a vital issue will constitute a reviewable error. In this regard, he relies on Mohammadian v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 371 (F.C.T.D.), aff'd. [2001] 4 F.C. 85 (F.C.A.).
[12] The Applicant argues that the interpretation of the words "abandonment", "hearing" and "doctor" were incorrectly translated and that the mistranslation of these words related to a critical element of the Applicant's case. The Applicant submits that the interpreter provided by the Board often did not translate what he said and provided her own answers.
[13] Secondly, the Applicant argues that the more complete medical report provided by Dr. Ina Roitberg dated July 3, 2001 is admissible evidence upon this application. In this regard, he relies on Stumf v. Canada (Minister of Citizenship and Immigration)(2000), 195 F.T.R. 313, rev'd on other grounds 2002 F.C.A. 148 and Ou v. Canada (Minister of Citizenship and Immigration) (1999), 48 Imm.L.R. (2d) 131 (F.C.T.D.).
[14] The Applicant argues that the Board has no medical expertise and erred in being over zealous in finding weaknesses in his evidence. He argues that the Board erred in drawing an adverse inference from his abilities to get around and his decision not to take the prescribed medications. He submits that the Board requires medical evidence to contradict the Applicant, in order to make these findings.
[15] Finally, he argues that these errors were errors in law and are reviewable upon a standard of correctness. On questions of mixed fact and law, the Applicant submits that standard is reasonableness.
RESPONDENT'S SUBMISSIONS
[16] The Respondent submits that the Applicant has waived his right to complain of a breach of natural justice relative to the interpretation services because he did not make this allegation at the earliest opportunity. The Respondent notes that the Applicant was asked about the adequacy of the translation during the hearing and no objection was raised.
[17] Secondly, the Respondent argues that the revised medical certificate from Dr. Roitberg was not before the Board at the hearing and is inadmissible on judicial review. The Respondent states that in this case, that evidence contradicts the evidence available at the hearing because at that time, the Applicant claimed he was unable to obtain better documentation.
[18] The Respondent argues that the decision in Ou, supra, was wrongly decided and submits that fresh evidence may only be admitted on judicial review of abandonment proceedings if the Applicant neither attended the refugee hearing nor the abandonment hearing.
[19] The Respondent argues that the Applicant gave contradictory evidence as to his understanding of the nature of the proceedings. In particular, he said that he understood the nature of the abandonment hearing when he received the notice dated February 14, 2001, advising him of the abandonment hearing, but later said that he did not understand the nature of those proceedings because of errors in translation.
ISSUES
[20] The following issues arise from this application:
1. Is the letter from Dr. Roitberg admissible?
2. Was there a breach of section 7 and 14 of the Charter or a breach of natural justice resulting from the alleged deficiencies in the interpretation provided at the abandonment hearing?
ANALYSIS
[21] In general, new evidence is inadmissible upon an application for judicial review. However, in Stumf, supra, Justice Simpson followed Ou, supra, and held that fresh evidence could be filed on an application for judicial review where the issue was the abandonment of the refugee claim and not the merits of such claim.
[22] In the present case, the Applicant is attempting to tender fresh evidence in an effort to justify his absence from the abandonment hearing. He argues that this brings his situation within the limits of Stumf, supra and Ou, supra.
[23] I am not persuaded by the Applicant's arguments in this regard. I agree with the submissions by the Respondent, to the effect that the introduction of Dr. Roitberg's more detailed medical certificate has the effect of inviting the court to review the decision of the Board on the basis of evidence which was not before it.
[24] In my opinion, the factual situation in Ou, supra, is unique and can be distinguished from the facts in this case. In Ou, supra, the supplementary affidavit explained that that applicant did not receive notice of the hearing because of an honest mistake, not for the lack of any diligence on his part. This explanation was brought forward at the earliest opportunity.
[25] That response did not occur in the present case. The letter which the Applicant now seeks to introduce is a medical certificate containing the detail that was originally sought by the Board. The letter does not state that such a medical certificate was not available at the time of the hearing. In these circumstances, the Applicant's factual situation is not parallel to that at issue in Ou, supra. I decline to accept the letter from Dr. Roitberg as admissible evidence in this proceeding.
[26] The second issue concerns the adequacy of the translation provided to the Applicant at his hearing before the Board. In this regard, he relies upon the Affidavit of Sonia Taboukachvili, a translator who is accredited with the Board for the Georgian and Russian languages. According to her affidavit, she listened to the tapes of the proceedings before the Board and noted various errors in the translation.
[27] In particular, she noted that throughout the hearing the words "abandonment", "hearing" and "doctor" were incorrectly translated. In my opinion, these errors in translation relate to crucial issues in the abandonment proceedings. They raise issues of procedural fairness and Charter concerns sufficient to warrant a new hearing.
[28] The Respondent argues that the Applicant waived his right to question the adequacy of the translation because he failed to raise this issue at the hearing. In Mohammadian, supra, at p. 383 Justice Pelletier said as follows:
The crucial element is the reasonableness of the expectation that the claimant complain at the first opportunity. In many cases, the applicant is aware that he/she is having difficulty communicating with the interpreter. The reasons may vary but the applicant is aware of the difficulty. In those circumstances, it is reasonable to expect the applicant to speak up. There are other cases where the defective interpretation is not known to the applicant because the errors occur in the language of the tribunal in which the applicant is not competent. Such errors may only be discoverable after the fact, and in those cases, it is not reasonable to expect the applicant to make a complaint at the time of the hearing.
[29] In my opinion, in the present case the Applicant could not have reasonably known that the proceedings were being mistranslated at the time of the hearing. He could not have been aware that the translator was erring in her translation of the masculine and feminine pronouns in English because he did not understand English.
[30] Furthermore, there were other errors where the sentences made sense to the Applicant because they were grammatically correct but they conveyed a different meaning than intended.
[31] Finally, I note from the transcript of the hearing before the Board that members of the Board themselves questioned the adequacy of the translation. There is no question that the Board members were familiar with the Georgian and Russian languages. Equally, there is no doubt as to their familiarity with the English language. In my opinion, the very fact that they raised questions about the adequacy of the translation raises a serious concern about the fairness of the hearing which was accorded to the Applicant.
[32] I note as well that this Board was over scrupulous in the manner in which it assessed the Applicant's activities on February 12, 2001, the day originally set for his Convention refugee hearing. In my opinion, the Board members placed themselves in the position of assessing the Applicant's medical condition. They were not qualified to do so and in this regard I refer to Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168 (F.C.A.) at 170 where Justice Hugessen noted:
1. One simply cannot take judicial notice of the extent to which a fractured knee makes it impossible to walk; everything will depend upon the nature and extent of the fracture and upon the circumstances of the injured person. Stories of battlefield heroics by persons with apparently disabling wounds are not uncommon.
[33] The Board committed the type of activity which was frowned upon by the Court in Attakora, supra.
[34] In the result, this application for judicial review is allowed and the matter is remitted to a differently constituted Board for reconsideration.
[35] Counsel for the Applicants submitted two questions for certification but in my opinion, this application does not raise a question of general importance. According to Liyanagamage v. Canada (Secretary of State) (1994), 176 N.R. 4 (F.C.T.D.), that is the criteria for the certification of a question. I am not persuaded that the present application gives rise to a question of general importance. No question will be certified.
ORDER
The application is allowed and the matter is remitted to a differently constituted Board for reconsideration.
No question will be certified.
"E. Heneghan"
_____________________________
J.F.C.C.
OTTAWA, Ontario
September 4, 2002
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-3335-01
STYLE OF CAUSE: Davit Iantbelidze v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: Thursday, May 30, 2002
REASONS FOR ORDER OF THE HONOURABLE MADAM JUSTICE HENEGHAN
DATED: September 4, 2002
APPEARANCES:
Mr. Micheal Crane FOR APPLICANT
Ms. Amina Riaz FOR RESPONDENT
SOLICITORS OF RECORD:
Mr. Micheal Crane FOR APPLICANT
Toronto, Ontario
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
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