Date: 20070309
Docket: IMM-2318-06
Citation: 2007 FC 274
Ottawa, Ontario, March 9,
2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
JINHUAN
XU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND
IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicant was denied refugee status. The Immigration and Refugee Board (IRB) decision
was based upon credibility and plausibility findings. A critical aspect of the
credibility finding was the alleged discrepancy between the notes of her
interview at Citizenship and Immigration Canada (CIC) and the testimony before
the Board. This judicial review raises, amongst other grounds, the issue of
proper translation and the appropriateness of plausibility findings.
II. BACKGROUND
[2]
The
Applicant, a Chinese national, was persuaded to attend at a house church on
a regular basis. The group had eleven
members, two of whom would act as lookouts at each meeting.
[3]
The
Applicant’s evidence was that the religious services were discovered by the Chinese
Public Security Bureau (PSB) but that as a result of the lookout’s warnings,
she escaped. She then escaped from China with the assistance of
“snakeheads” using her own passport.
[4]
The
Board found the Applicant not to be a credible witness and not a member of an
underground church. The Board noted that there were inconsistencies between her
CIC interview, her PIF narrative and her evidence at the Board hearing.
[5]
The
Board also noted in their submissions that there was confusion in her evidence
because the translator at the CIC interview was a native Cantonese speaker
translating from Mandarin to English. The Board went so far as to acknowledge
the possibility of problems, even to extending the benefit of the doubt on
credibility findings due to possible translation problems in the similarity in
numbers. It also went on to make plausibility findings in areas where there
were discrepancies.
[6]
The
Applicant filed an affidavit from a Chinese language expert attesting to the
possible difficulties a native Cantonese speaker would have with Mandarin and
translation from Mandarin to English.
[7]
The
Board also made a finding that the Applicant’s story about escaping the church
was not plausible because the PSB would have surrounded the church before
raiding it. The Board was of the view that escape would have been impossible.
[8]
The
Board made a number of other implausibility findings which need not be
discussed here.
III. ANALYSIS
A. Translation
Issues
[9]
One
of the sources of the translation issues is at the CIC interview. The interview
is not recorded in its original form. What exists are the notes of the English
translated version of the Applicant’s testimony. Therefore, any difficulties
would not be apparent to the Applicant if there was a misunderstanding in the
translation. CIC does not take the step of reading back the interview notes to
ensure their accuracy.
[10]
The
Applicant raised the discrepancy between what she said and what was noted down
in the interview at the first opportunity – the IRB proceedings.
[11]
The
right to proper interpretation is an essential right recognized in s. 14 of the
Charter. Justice Snider has captured its importance in Huang v. Canada (Minister of
Citizenship and Immigration), [2003] F.C.J. No. 456 (QL) in the
following quote:
8. The Applicant has a
right, under section 14 of the Charter, to continuous, precise,
competent, impartial and contemporaneous interpretation. The Applicant is not
required to show that he has suffered actual prejudice as a result of the
breach of the standard of interpretation in order for this Court to interfere
with the decision of the Board (Mohammadian v. Canada (Minister of
Citizenship and Immigration), [2001] 4 F.C. 85 (C.A.), leave to appeal
dismissed, [2001] S.C.C.A. No. 435 (QL); R. v. Tran, [1994] 2 S.C.R.
951).
[12]
As
important as this right is, the burden on a person raising interpretation
issues is significant. Such a claim must overcome the presumption that a
translator, who has taken an oath to provide faithful translation, has acted in
a manner contrary to the oath. Simply alleging mis‑translation will not
be sufficient – the burden is to show that on a balance of probabilities mis‑translation
occurred.
[13]
In
this instance the Applicant has met this burden through a combination of
factors including expert but circumstantial evidence and, most importantly, the
Board’s own acknowledgement and concession as to the relevance of the problem
to its credibility findings.
[14]
I
will not conclude that the CIC has an absolute obligation to read back
interview notes to ensure accuracy. There may be good reason for not doing so
including having spontaneous rather than tailored responses. However, in not
having some form of objective record of what was actually said in the
interview, the process is open to attack. In a world of digitalized recording,
it might be possible to avoid these types of issues completely.
B. Plausibility
Finding
[15]
In
addition to the translation, the Court has concern about one plausibility
finding in particular. The Board found the story about escaping the church
implausible because the PSB would have surrounded the building and therefore
prevented escape.
[16]
This
conclusion fails to address the role of the lookouts and the reasonable
possibility that they could report on the PSB’s movements in sufficient time to
permit escape.
[17]
The
Board must proceed with caution in making plausibility findings. It is to be
done in the clearest of cases, such as where the facts are so far outside the
realm of what could reasonably be expected that it could not happen as described,
or where there is documentary or other evidence which demonstrates that events
could not happen as described.
[18]
There
is an equally plausible explanation to support the Applicant’s version of the
events. The Board’s plausibility finding cannot stand without a clear rationale
for rejecting the equally plausible other explanation.
IV. CONCLUSION
[19]
These
two issues taken together require that the Applicant succeed in this judicial
review. The Court makes no comment on the other findings as this matter will be
reheard by a different panel making a fresh determination.
[20]
There
is no question for certification. The legal principles are well established and
they have simply been applied to these specific facts.
JUDGMENT
IT IS ORDERED THAT this
application for judicial review is granted. The decision of the IRB is quashed
and the matter is to be referred back to a different panel for redetermination.
“Michael
L. Phelan”
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