Docket: IMM-5056-10
Citation: 2011 FC 846
Ottawa, Ontario, July 8,
2011
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
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SAMIRAH MOHAMED NEHEID
SWALHA AMER SALMIN
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. INTRODUCTION
[1]
This
judicial review concerns serious erroneous translation of Swahili which led to adverse
credibility findings and the dismissal of the underlying refugee claim.
II. BACKGROUND
[2]
The
Applicant, a 50 year old citizen of Kenya, and her 22 year old
daughter claimed refugee protection based principally on fear of persecution
arising from the involvement of the Applicant’s son in a political opposition
group.
[3]
The
Immigration and Refugee Board’s (Board) negative decision turned on
credibility:
The
PC’s oral testimony was evasive and at times incoherent. The panel takes into
account the difficulty of testifying through an interpreter, the nervousness of
the claimants and the gender Guidelines in assessing the credibility of
both claimants. In the case of the PC’s testimony, the panel has considered
her oral testimony in the context of her low level of education and
sophistication. However, even by giving the benefit of the doubt to the PC
with regards to the manner in which she testified at the hearing, the panel
finds that, on a balance of probabilities, the PC would not be at risk if she
is to return to Kenya or that she had been targeted by the police because of
her son’s alleged involvement in the ODM.
[4]
The
Board made numerous references to the Applicant’s testimony and her failure to
provide coherent evidence or her failure to explain herself when questioned.
The Board likewise found the Applicant’s daughter lacking in credibility.
[5]
In
its conclusion the Board repeated that core elements of the claim lacked
credibility.
III. ANALYSIS
[6]
The
essential issue in this judicial review is denial of procedural fairness. That
issue is subject to the correctness standard of review and where breach of
fairness is found, except in the rarest of cases, the decision will be set
aside (Canadian Union of Public Employees (C.U.P.E.) v Ontario (Minister of
Labour), [2003] 1 S.C.R. 539).
[7]
In
Mohammadian v Canada (Minister of Citizenship and Immigration), 2001 FCA
191, the Court of Appeal set the requirement that interpretation must be
“continuous, precise, competent, impartial and contemporaneous”.
[8]
A
fair reading of the transcript of the hearing discloses that interpretation was
a problem. The Board was clearly frustrated by what they heard through the
interpreter. The Applicant and her daughter were likewise frustrated and
perplexed by the translation and the Board’s reaction.
[9]
Justice
Lemieux in Singh v Canada (Minister of Citizenship and Immigration),
2010 FC 1161 at para. 3, summarized the relevant principles applicable to
translation issues:
a. The
interpretation must be precise, continuous, competent, impartial and
contemporaneous.
b. No
proof of actual prejudice is required as a condition of obtaining relief.
c. The
right is to adequate translation not perfect translation. The fundamental value
is linguistic understanding.
d. Waiver
of the right results if an objection to the quality of the translation is not
raised by a claimant at the first opportunity in those cases where it is
reasonable to expect that a complaint be made.
e. It
is a question of fact in each case whether it is reasonable to expect that a
complaint be made about the inadequacy of interpretation.
f. If
the interpreter is having difficulty speaking an applicant's language and being
understood by him is a matter which should be raised at the earliest
opportunity.
[10]
The
Respondent’s position in this matter rests mainly on the failure of the
Applicant to raise the translation issue sufficiently. While waiver is a
principle applicable to translation rights, it is, as Justice Lemieux observed,
a question of fact in each case whether it is reasonable to raise a complaint
about the adequacy of translation.
[11]
In
this case there was clear indication that translation was a problem. The
daughter attempted to raise the issue twice and was ordered to be quiet. The
objection may not have been phrased as directly but given the dependent
position an applicant is in before the Board, and the total dependency of
counsel on the translation, it is not reasonable to expect the Applicant to
have done more.
[12]
The
Respondent’s procedural point cannot stand in the way of fairness and
established translation errors which were material to the decision.
[13]
The
Applicant provided an expert opinion of Hussein Tamini, an apparently highly
qualified English-Swahili translator and teacher, who outlined the full extent
of the discrepancies and problems of this translation. They are multiple and
significant.
The
Respondent has submitted no evidence to rebut the Tamini affidavit.
[14]
Therefore,
the Court finds that there was a breach of fairness by reason of unreasonable
translation which was material to the Board’s decision.
[15]
It
is impossible to know from this record whether the translator is generally not
sufficiently versed in the languages to be a translator. The Court would expect
the Board to consider that matter and if the translator is found not to be
qualified, the Board would consider what impact that matter would have had in
other cases.
IV. CONCLUSION
[16]
This
judicial review will be granted, the Board’s decision quashed and the matter
referred back for a new determination before a differently constituted panel.
There is no certified question.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is granted, the
Board’s decision is quashed and the matter is to be referred back for a new
determination before a differently constituted panel.
“Michael
L. Phelan”
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