Date: 20110714
Docket: IMM-6476-10
Citation: 2011 FC 889
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa,
Ontario, July 14, 2011
PRESENT: The
Honourable Mr. Justice Martineau
BETWEEN:
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ALI ZAREE
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Applicant
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and
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THE MINISTER OF CITIZENSHIP
AND IMMIGRATION CANADA
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Respondent
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REASONS
FOR JUDGMENT AND JUDGMENT
[1]
This
is an application to consider the lawfulness of a decision dated October 13,
2010, by the Refugee Protection Division of the Immigration and Refugee Board (panel),
that the applicant is not a “Convention Refugee” or a “person in need of
protection” in accordance with sections 96 and 97 of the Immigration and Refugee
Protection Act,
S.C. 2001, c. 27 (Act).
[2]
For
the following reasons, the application for judicial review must be allowed.
[3]
The
applicant, an Iranian citizen, fears persecution in his country because of his
participation, in both Iran and in Canada, in political activities against the
government in power.
[4]
In
support of his refugee claim, the applicant states that he was introduced, in
2005, to the Communist Party of Iran (WPI) (party) through his friend, Vahid. He
became a member of the party and distributed pamphlets to people, including a
friend, Amir, who was also interested in the party. On April 17, 2007,
Amir was arrested. Two days later, the Iranian authorities appeared at the home
of the applicant, who was absent at the time, and arrested his father and
detained him for three days. It was apparently Amir who had turned him in. After
leaving his country in May 2007, the applicant claimed refugee protection a
month later. He has since been involved with the Worker-communist Party–Hekmatist, a political
party working in Canada against the Iranian regime and, in 2009, after the
presidential elections, he participated in demonstrations in Montréal against
the Iranian regime; his photo is on the internet on the YouTube site.
[5]
The
panel’s rejection of the refugee claim is based on both a lack of credibility in
the applicant’s account and the nature and the extent of his political
activities in Canada, which do not objectively establish, according to the
panel, that there would be a risk to his life or a risk of persecution if he
were to return to Iran. However, in this case, while disputing the reasonableness
of the panel’s findings, the applicant is focusing mainly on the fact that the poor
quality of translation during the hearing before the panel had a negative
impact on his credibility assessment in such a way that the decision should be
set aside and the matter should be referred back to another decision‑maker.
[6]
It
goes without saying that assessing the claimant’s credibility is at the heart
of the panel’s expertise and that the Court owes substantial deference to such
determinations (Zheng v. Canada (Minister of Citizenship and Immigration),
2007 FC 673 at paragraph 1). Namely, the question to be asked is whether
the panel’s finding that the applicant is not a refugee because of his political
activities in Iran, and then Canada (refugee “sur place”), constitutes an
acceptable outcome in respect of the evidence in the record and the applicable
law (Dunsmuir v. New Brunswick, 2008 SCC 9 at paragraph 47).
[7]
However,
it is also necessary for the refugee claimant to be heard and for his account
to be understood by the panel in the first place. Therefore, the quality of the
translation before the panel on its own can raise an issue of procedural
fairness, and it is the standard of correctness that applies in such cases (Canada
(Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12 at
paragraph 43). On this point, as it was decided in Mohammadian v. Canada
(Minister of Citizenship and Immigration), [2000] 3 F.C. 371, affirmed on
appeal 2001 FCA 191, a refugee claimant is entitled to a continuous, precise,
competent, impartial and contemporaneous interpretation.
[8]
According
to Mohammadian, where problems of interpretation could be reasonably addressed
by the refugee claimant at the time of the hearing, there is an obligation to address
them then and not later, in judicial review proceedings. However, if they can
only be addressed during judicial review, the refugee claimant is not required
to show that he or she has suffered actual prejudice as a result of the breach
of that right. Moreover, I do not consider myself bound by any decision of this
Court that departs from what was clearly decided by the Federal Court of Appeal
in 2001 in Mohammadian, above. See also Nsengiyumva v. Canada (Minister
of Citizenship and Immigration), 2005 FC 190 at paragraph 16; Sherpa v.
Canada (Minister of Citizenship and Immigration), 2009 FC 267 at paragraph
57; Umubyeyi v. Canada (Minister of Citizenship and Immigration), 2011 FC
69 at paragraph 9.
[9]
In
practice, translation problems may be apparent and easily detectable during the
hearing; this is the case when the errors committed occur initially, meaning that
they appear in the refugee claimant’s mother tongue, which the refugee claimant
can detect when he or she is communicating with the interpreter. However,
translation problems may also occur later on: the interpreter may fully understand
and speak the refugee claimant’s mother tongue, but may improperly translate
his or her account into the language of the hearing. This situation is more harmful
and translation problems may not be detected at the hearing by a refugee
claimant who does not speak, or who understands very little of, the language of
the hearing (English or French). In such cases, it is unreasonable to expect
him or her to have complained of flawed translation at the hearing.
[10]
This
case is a classic example of the second situation described above. Let us note
at this point that the language of the hearing was English and that the refugee
claimant was speaking Farsi with the interpreter. The interpreter understood
and spoke Farsi even if, at times, she lacked some vocabulary in Farsi. Of
course, the interpreter was certified to translate from Farsi into English and from
Farsi into French, but even the applicant, who speaks no French, and
understands very little English, noticed that her English was not very good. To
remedy the situation, the applicant asked the panel whether the hearing could
be held in French instead of English so that the interpreter could better
translate. However, the panel refused because the file had been prepared in
English, but reassured the applicant with the following: “We are aware of your
concern. If we feel that there is an issue at one point, we will address it.
Now, I don’t want you to feel worry for the continuation. We will see if there
is an issue, we will intervene. Okay?”.
[11]
Further
to the concerns expressed and the assurances given on both sides, the applicant
had no other choice but to proceed with his refugee claim; this would have otherwise
led to the abandonment of the claim. In this case, it was only on receiving the
decision under review that the applicant was able to determine to what point
the translation at the hearing was not always continuous, precise or
contemporaneous. As evidence, the detailed affidavit of the certified
interpreter, Abdol Razzagh Goadri, which contains 15 paragraphs as well as Annex
A, a comparative table containing some 918 questions or answers, is conclusive
and demonstrates several significant differences in terms of what the applicant
said in Farsi (translated into English in the comparative table for our
understanding) and what the interpreter translated into English at the hearing.
That being said, even if this was not required in the Court’s view, the
applicant, in this case, demonstrated that the translation errors in question
also had a negative impact on his credibility.
[12]
To
illustrate the above point, the panel found, in its decision, that the
applicant was not credible in terms of his political involvement in Iran within
the party, certainly a key aspect of his claim. There appeared to be contradictions
between the notes taken at the point of entry (POE) and the applicant’s
Personal Information Form (PIF). The applicant’s testimony at the hearing also appeared
to be inconsistent with Exhibit P-5, a letter by the party supporting his
account. The confusion revolved around the applicant’s level of involvement (member
or supporter) in the party and the relevant dates of this involvement (2005,
2006 or 2007). Nevertheless, the table prepared by the interpreter, Abdol
Razzagh Goadri, notes that the Farsi word for “member” in English, used by the
applicant, was mistranslated at the hearing by “supporter”, that the year 2005 was
mistranslated as 2007, and that “active member” was translated by “started
activities”. It is therefore clear that this had a negative impact on the
applicant’s credibility, not to mention the fact that the poor quality of, or
the many approximations in, the translation at the hearing compromised the flow
of exchanges between the refugee claimant and the panel.
[13]
The
above-mentioned problems with regard to the translation at the hearing are
sufficient in themselves to set aside the decision under review and to refer
the matter back for rehearing by a differently constituted panel. In passing, I
would also add that the panel’s very cursory analysis of the refugee “sur place”
issue (two short paragraphs only) demonstrates a great lack of thoroughness and
depth, which goes directly against the standards of transparency and
intelligibility that must be met in the panel’s reasons in every refugee status
determination matter where the issues affect the lives and safety of
individuals.
[14]
On
this last point (political activities in Canada), it should be noted that the
applicant’s credibility was not at issue. However, according to the documentary
evidence in the record, Iranians involved abroad in political activities
against the Iranian regime risk being persecuted upon returning to Iran. The
documentation on Iran by the Immigration and Refugee Board indicates that the
families of Iranian demonstrators abroad are threatened in Iran and that no leniency
is given to demonstrators and their families (Document 2.5, pages 1 and 3). Moreover,
the documentation also indicates that the Iranian authorities monitor web sites
like Facebook, Twitter and YouTube (Document 2.1, page 21). In this case, the
panel cannot simply suggest, without going on to analyze the documentary
evidence in light of the personal situation of the applicant and his family in
Iran, that the applicant’s political involvement in Canada is not sufficient to
attract the attention of the Iranian regime, either towards him if he were to
return to Iran or towards his family, while the letter by the applicant’s
father dated August 17, 2010, states quite the opposite.
[15]
For
all of these reasons, this application must be allowed. At the hearing, counsel
agreed that this matter does not raise any serious question of general
importance.
JUDGMENT
THE COURT ORDERS
AND ADJUDGES that:
1. The
application for judicial review is allowed;
2. The panel’s
decision is set aside and the matter is referred back to the Immigration and
Refugee Board for rehearing by another decision-maker;
3. No question
is certified.
“Luc Martineau”
Certified true
translation
Janine Anderson,
Translator
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