Date: 20070627
Docket: IMM-6174-06
Citation: 2007 FC 684
Ottawa, Ontario, the 27th day of June 2007
PRESENT: THE HONOURABLE MR. JUSTICE
HARRINGTON
BETWEEN:
MAHAMAT KHALIT AHAMAT DJALABI
MAHAMAT OUMAR DJAZOULI
Applicants
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND
ORDER
[1]
The applicants are
half-brothers. They are both citizens of the Republic of Chad and the claim for
refugee status they filed in Canada is based on the fact that their elder
brother, Djamal Ahamat Djalabi, was an active member of the Association
estudiantine at Cotonou in Benin and supported the Mouvement pour la démocratie
et la justice au Tchad (MDJT). The latter was recognized as a “Convention
refugee” by the Canadian authorities after arriving in Canada in 2001, since it
was found that this foreign national rightly feared being persecuted for his
political opinions. In fact, on his return to Chad after spending some time in
Benin, Djamal feared the worst and fled his native land to seek refuge in a safe
place because of the threats made against him and his imprisonment by the
forces of the Agence nationale de sécurité (ANS).
[2]
However, since the
elder brother left the Republic of Chad in 2001, the ANS has not ceased to
apply pressure and is now targeting his family, which is regarded as being
close to the MDJT. Consequently, the actions and doings of the younger brothers
are closely followed by the ANS. In fact, the applicants had to continually
live in hiding in their country of origin in view of the many threats made
against them, and that is why they in turn arrived in Canada in 2005 seeking
refugee protection.
[3]
Following their
arrival in Canada, their claim was dismissed since it was found that the
applicants were not credible and that, in view of the evidence adduced, their
testimony was not trustworthy.
[4]
In connection with
this application for judicial review, a number of questions were submitted to
the Court. However, the principal question was whether the applicants’ right to
a fair hearing before the Refugee Protection Division was observed and, in
particular, whether the right to the assistance of an interpreter was observed.
On this question, the Court feels that the applicants’ right was infringed and
that justice was therefore denied. Consequently, it is not necessary for the
Court to consider further the other questions submitted, since the infringement
of a principle of natural justice involving fairness, as in the case at bar, is
in itself a sufficient ground to justify allowing this application for judicial
review.
[5]
For the purposes of
the hearing, the applicants indicated in their Personal Information Form that
they required the assistance of an interpreter competent in Chad Arabic and in
French, as their knowledge of French is only rudimentary. The transcript of the
hearing held before the Refugee Protection Division on October 2, 2006 clearly
indicates that at the hearing there were problems with the interpretation given
to the applicants’ testimony, and so to their account. In fact, the quality of
the interpretation was so poor that the panel member felt the need to speak a
number of times directly to the principal applicant, Khalit, suggesting he
answer directly in French when possible. He did this to the best of his
ability.
ISSUES
[6]
The issues for
consideration in this application for judicial review are the following:
a.
Did the assistance of
an interpreter at the hearing held before the Refugee Protection Division meet
the tests set out in case law with respect to quality?
b.
If not, did the
applicants waive their right to the assistance of an interpreter by making no
objection at the hearing to the quality of the interpretation given?
c.
How should the
affidavit by the applicants’ elder brother, Djamal Ahmat Djalabi, be viewed by
the Court, given that the latter testified at the hearing involving his two
younger brothers but was not present when they were questioned on various
aspects of their story, and given that he found major problems in the
interpretation after listening to the audio tapes of the hearing?
ANALYSIS
[7]
The questions raised
by the questionable quality of the interpretation at a hearing as in the case
at bar are closely related to the principle of procedural fairness. Moreover,
it must be recalled that the right to the assistance of an interpreter is
entrenched in section 14 of the Canadian Charter of Rights and Freedoms,
which raises it to the level of a constitutional right:
|
14. A party or witness in any proceedings who does
not understand or speak the language in which the proceedings are conducted
or who is deaf has the right to the assistance of an interpreter.
|
14. La
partie ou le témoin qui ne peuvent suivre les procédures, soit parce qu'ils
ne comprennent pas ou ne parlent pas la langue employée, soit parce qu'ils
sont atteints de surdité, ont droit à l'assistance d'un interprète.
|
In
this case, the applicable standard of judicial review is that of correctness.
[8]
In the case at bar,
the fact that the applicants have only an imperfect knowledge of French is not
in dispute. Under Rules 16 and 17 of the Immigration Division Rules, an
applicant must choose French or English as the language of proceedings,
including that in which he or she wishes the hearing to take place, and if an
interpreter’s services are required, as in the case at bar, he or she must
notify the Immigration Division, specifying the language or dialect of the
interpreter whose assistance is required. At that point, an interpreter
appointed on the basis of his or her skills takes an oath or makes a solemn affirmation
to interpret accurately.
[9]
As already mentioned,
in view of the languages most familiar to the applicants, the hearing in the
case at bar took place in French and in Chad Arabic. As requested, an
interpreter was appointed to assist them. However, at the hearing, the panel
member evidently noticed that there were discrepancies in the translation
services provided by the interpreter in question and that the applicants had
only a rudimentary understanding of French. At one point during the hearing,
the member questioned Khalit about the members of his family to determine who
were the children of his mother and father respectively. This question
presented problems, and that was when she asked the interpreter [TRANSLATION] “
. . . Do you understand, sir? . . .”. This communication problem continued, and
after a time the member spoke directly to Khalit, asking him [TRANSLATION] “ .
. . Can you tell it to me in French, sir? How many boys and how many girls are
there in your family? . . .”.
[10]
Somewhat later in the
hearing, when Khalit was testifying that his problems had begun when he had to
move and that he subsequently feared for his life, the member once again spoke
directly to him in French: [TRANSLATION] “ . . . Tell it to me . . . in French,
please? . . .”. It is worth noting here that the adverse findings of the
Refugee Protection Division as to the applicants’ credibility in the impugned
decision are based on this series of events in their story, that is, when they
had to hide in order to protect themselves, and the transcript of the hearing
in this regard is faulty.
[11]
In his affidavit, the
applicants’ elder brother, Djamal, said: [TRANSLATION] “ . . . I speak,
understand and write Chad Arabic and French with ease, and so I was able to
check the quality of the interpreter’s translation at the hearing”. Djamal, who
has a better mastery of French than his brothers, reviewed the interpretation
discrepancies raised following the hearing and identified the mistakes
allegedly committed in great detail. Should errors of interpretation in fact
exist, everything indicates that what the applicants may have wanted to explain
or communicate to the panel member as information supporting their refugee
claim could not really be taken into account and, consequently, the decision of
the Refugee Protection Division that the applicants lacked credibility cannot
be based on the applicants’ testimony at the hearing, as was the case here.
[12]
In R. v. Tran,
[1994] 2 S.C.R. 951, Chief Justice Lamer, dealing with the application of section
14 of the Canadian Charter of Rights and Freedoms in criminal
proceedings, held that an interpretation provided at a court hearing must be “
. . . continuous, precise, impartial, competent and contemporaneous . . .”. In Mohammadian
v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 371, Mr.
Justice Pelletier wondered whether such tests could also be applied to
proceedings before the Refugee Protection Division, and certified the question.
On appeal, this case allowed the Federal Court of Appeal to rule, in the
reasons of Mr. Justice Stone, that the interpretation provided to applicants as
part of a refugee claim must, as with criminal proceedings, be continuous,
precise, competent, impartial and contemporaneous (see Mohammadian v. Canada
(Minister of Citizenship and Immigration), 2001 FCA 191).
[13]
Based on the evidence involving the elder brother Djamal, and
considering the tests developed by the courts regarding the applicants’
entitlement to full enjoyment of their right to the assistance of an
interpreter, the Court finds that the interpretation given at the hearing in
the case at bar was not precise.
WAIVER OF THE RIGHT TO ASSISTANCE BY AN INTERPRETER
[14]
At trial, Pelletier
J. in Mohammadian also considered the following question:
Where it is reasonable to expect an applicant to
do so, such as when an applicant has difficulty understanding the interpreter,
must the applicant object to the quality of interpretation before the CRDD as a
condition of being able to raise the quality of interpretation as a ground of
judicial review?
In
the appeal judgment in that case, Stone J.A. answered in the affirmative.
[15]
In the case at bar,
the applicants had a joint hearing. The Minister considers that the applicants
should have raised the problems regarding the quality of the interpretation at
the hearing and that it was not unreasonable to expect them to do so since they
had some knowledge of French. The Minister further considers that since the
applicants made no objection to this effect during the hearing they could not
now, in an application for judicial review, require that the impugned decision
be the subject of a rehearing before the Refugee Protection Division solely on
this ground, namely, the poor quality of the interpretation. In short, the Minister
alleges that, by their actions, the applicants had waived their right to the
assistance of an interpreter. This is what the Trial Judge, Pelletier J., wrote
at paragraphs 22, 23 and 24 of Mohammadian regarding the waiver of the
right to the assistance of an interpreter by refugee status claimants:
[22] This review, which is
far from exhaustive, shows that in some cases applicants have been allowed to
raise issues of defective translation as grounds for judicial review when it
may not have been raised before the CRDD. It is clear that counsel have
not been allowed to let manifestly poor interpretation pass without objection
and then raise poor interpretation as a ground for judicial review. Aquino
v. Minister of Employment and Immigration, supra. There is an
obligation on the part of counsel to draw such matters to the attention of the
tribunal so that it can be remedied at the hearing itself. Counsel and
their clients cannot hedge their bets by ignoring the issue and then raising it
in the event of an unfavourable result.
[23] In general terms, the
cases reviewed appear to suggest that where problems of interpretation could be
reasonably addressed at the time of the hearing, there is an obligation to
address them then and not later, in judicial review proceedings. There is
an obligation on both the tribunal (see Ming v. Canada (Minister of
Employment and Immigration), [1990] 2 F.C. 336 (C.A.)) and counsel (see Aquino)
to take steps to see that interpretation is adequately addressed. Where
the error cannot be detected until after the hearing (Mosa), the lack of
prior complaint has not been held against the applicant.
[24] There does not appear
to be anything in these cases which would preclude a requirement that a
complaint about the quality of interpretation be made at the first opportunity
where it is reasonable to expect such a complaint to be made.
[16]
It would be wrong to
say that, in all cases where the quality of interpretation is questioned, it
should first be the subject of an objection at the hearing by the party raising
it. As Pelletier J. mentioned, this is a question of fact which must be
determined on a case-by-case basis. Was it reasonable in the particular
circumstances of the case at bar for no objection to be made at the hearing,
raising the poor quality of the interpretation?
[17]
In the instant case,
the Court considers that the applicants testified duly and properly and that it
is too heavy a burden to ask each one to act as a watchdog, being both
“interpreter” of the questions put and “arbiter” of the quality of the answers
interpreted. Both the applicants and the Refugee Protection Division were aware
that the conduct of the hearing was being affected by interpretation problems.
However, it was not until after the hearing, once the audio tape of the hearing
was closely examined, that the applicants were aware of the interpretation
errors which had occurred at the hearing and that the result of those
interpretation errors was to alter the content of their testimony. It is clear
that this was not a specific case in which counsel and their clients hedged
their bets by ignoring the issue of interpretation quality at the hearing and
then raising it in the event of an unfavourable result through an application
for judicial review.
AFFIDAVIT OF DJAMAL AHAMAT DJALABI
[18]
The Minister argues
that it was never demonstrated that the elder brother Djamal was a qualified
person who was competent in the knowledge of French and Chad Arabic. He simply
said that he was. Despite these allegations, it should be noted that the
Minister did not exercise his right to cross-examine Djamal on his affidavit.
Further, when the panel member questioned Djamal at the hearing she said the
following: [TRANSLATION] “ . . . You speak French well, you can do it in
French. . .”. “A. Yes . . .”.
[19]
The Minister
maintains that Djamal is not impartial and clearly has a bias toward one of the
parties in question, since he testified for the applicants at the hearing and
visibly wanted his two brothers to join him and settle in Canada as he had
done. However, it has been consistently held that having an interest in the
outcome of a case does not necessarily make a witness’s testimony inadmissible.
Only the value to be attached to such testimony at the time the evidence in the
record is assessed can be determined by taking this interest into account (see Microsoft
Corporation v. 9038-3746 Québec Inc., 2006 FC 1509, [2006] F.C.J. No. 1965
(QL), at paragraph 50; Gordon D. Cudmore, Civil Evidence Handbook,
loose-leaf, Carswell, 1999, at section 1.2; and Alan W. Mewett et al., Witnesses,
loose-leaf, Carswell, 1998, at page 11-101).
[20]
It must be borne in
mind that Djamal was not the interpreter assisting his brothers at the hearing
and, so far as the case is concerned, he was only an ordinary witness. In any
event, all he did was to examine physical evidence which was also available to
the Minister for examination. It was then up to the Minister, if he wanted to
object to Djamal’s conclusions on the poor quality of the interpretation after
the hearing, to have the audio tape of the hearing examined by an expert of his
own choosing.
[21]
In the circumstances,
the Court accepts the evidence involving Djamal in the record and thereby takes
it into account in reviewing the application at bar.
[22]
For the aforementioned
reasons, the Court considers that the application must be allowed.
CONCLUSION
[23]
In fact, the case at
bar is somewhat similar to Faiva, decided by the Federal Court of Appeal
(see Faiva v. Canada (Minister of Employment and Immigration), [1983] 2
F.C. 3, [1983] F.C.J. No. 41 (QL)). In that case, the appointment of a
competent interpreter had caused problems. Despite the fact that the
appointment was not exemplary, the panel nonetheless decided to proceed with
the hearing in English since the applicant had some knowledge of that language.
As a result, the hearing was found to be unfair and so ultimately had to be
voided.
[24]
Although the Court
quite understands the frustration which the panel member may have felt at the
time of the hearing at having to adjourn the hearing of the case in order to
have a new interpreter appointed, that is nonetheless what should have been
done in order to ensure that the applicants’ right to the assistance of an
interpreter was observed. Since that is not what was done in the case at bar,
it must be concluded that the applicants did not have a fair hearing and the
Court must accordingly intervene. At the hearing, the parties agreed that there
was no question for certification.
ORDER
THE COURT ORDERS that the application for judicial review be
allowed and the matter referred back to a differently constituted panel of the
Immigration and Refugee Board’s Refugee Protection Division for
redetermination.
No
serious question of general importance is certified.
“Sean Harrington”
Certified
true translation
Susan
Deichert, Reviser
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