Docket: IMM-1089-11
Citation: 2011 FC 1424
Ottawa, Ontario, December 14, 2011
PRESENT: The Honourable Mr. Justice Rennie
BETWEEN:
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MOHAMMAD RATIB ABEER
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Applicant
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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
[1]
The
applicant seeks judicial review of a decision, dated January 19, 2011, of the Refugee
Protection Division of the Immigration and Refugee Board of Canada (the Board)
which found the applicant to be neither a Convention (United Nations’
Convention Relating to the Status of Refugees, [1969] Can TS No 6) refugee
nor a person in need of protection under section 97 of the Immigration and
Refugee Protection Act, 2001, c. 27 (IRPA).
[2]
The
application is founded on two grounds; a breach of procedural fairness arising
from the conduct of the hearing and, alternatively, that the findings of
credibility were unreasonable. For the reason that follows the application is
granted on the first ground. The second ground need not be addressed.
[3]
Courts
have long recognized a nexus between procedural fairness and the doctrine of
deference. Deference is predicated on an assumption that the proceedings below
have met the requisite standard of fairness. As Justice Binnie said in Canada (Citizenship
and Immigration) v Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para 59:
There might
be more than one reasonable outcome. However, as long as the process and the
outcome fit comfortably with the principles of justification, transparency and
intelligibility, it is not open to a reviewing court to substitute its own view
of a preferable outcome.
[4]
In
consequence, if the Court concludes that there has been a breach of natural
justice, no deference is paid and the Court will, save exceptional
circumstances, set aside the decision; see Thamotharem v Canada (Minister of
Citizenship and Immigration), 2006 FC 16, [2006] 3 FCR 168 per Justice Edmond
Blanchard; Benitez v Canada (Minister of Citizenship and Immigration),
2006 FC 461, [2007] 1 FCR 107 per Justice Richard Mosley for two examples of
the application of this principle.
[5]
In
this case the proceedings of the Board do not, to use the language of Khosa,
fit comfortably into the established practices and procedures essential to
ensure natural justice. While the breach of natural justice is, in and of
itself, sufficient to grant the application, it is also evident that the breach
had a material bearing on the second ground of argument, the unreasonable
findings of fact. In making this latter observation I do not detract from the
standard of review for natural justice in correctness and that the decision
here falls on that ground alone.
[6]
The
applicant is a citizen of Afghanistan who made a claim for
refugee protection upon arrival in Canada before the Refugee
Protection Division (RPD). At his hearing he was represented by Ms. Z. Khedri,
a lawyer licensed to practice in Ontario by the Law Society of
Upper Canada. The applicant had requested that a Dari interpreter be present
to assist him in giving evidence.
[7]
Despite the applicant’s
request for a Dari interpreter, a Farsi interpreter was provided by the Board. The
interpreter explained to the Board that Farsi, the language spoken in Iran, was
the umbrella language of which Dari, spoken in Afghanistan,
was a dialect. The interpreter explained that while there was a mutual
understanding between dialects, she did not speak the Dari dialect nor did she
enunciate her words in the Dari dialect.
[8]
The applicant
informed the Board that, in these circumstances, he would prefer to have his
hearing conducted in English. The interpreter was therefore to be used by the applicant
when he required additional assistance.
[9]
Before the formal
hearing began the Board member informed the applicant’s counsel that he found
her English to be very difficult to follow and asked her to speak in Dari and
to have the Farsi interpreter relay her representations and questions to the
Board in English. According to the Board, the applicant’s counsel “speaks
English with a very strong accent”, and “the Panel had difficulty comprehending
her English.” In the result, the translator was pressed into service in
interpreting counsel’s representations into English.
[10]
This
arrangement was reached between the Board member and counsel in a conversation
which was “off the record” and not in the presence of the applicant. It was in
fact, recorded.
COUNSEL FOR CLAIMANT: I try to speak slowly.
PRESIDING MEMBER: No I want to propose is
something […]
If and when it comes your turn to ask questions
maybe we could do it this way; you could ask the question in Dari and then
Madam Interpreter could translate your question…
COUNSEL FOR CLAIMANT: No problem, sure…
PRESIDING MEMBER: In English. Now the problem is
he is going to have a gap. You are going to ask the question in Dari and he
will understand it right away so you are translating back for me. Okay? As…he
is going to hear the question in your language, Dari, but there is going to be
a gap because there is going to be English in-between.
But instead of me interrupting you say I
am sorry, say it again please, I do not understand you…I hope you do not take offense
if we do that.
COUNSEL FOR CLAIMANT: No I do not. Sometimes I do
not understand you too so…
[11]
The
implementation of this entente between the Board and counsel was then
discussed:
COUNSEL FOR CLAIMANT: Sure. So you want me to ask
questions, ask him in Dari and the interpreter will translate to you in
English.
PRESIDING MEMBER: Wait, let me just repeat what
I said. Normally when it is your turn to ask questions you ask questions in
English…
COUNSEL FOR CLAIMANT: Yes.
PRESIDING MEMBER: Madam Interpreter translates
into Dari.
COUNSEL FOR CLAIMANT: Yes.
PRESIDING MEMBER: He answers in Dari, she speaks
in English. What I want to do is you speak in Dari. So instead of right away
your question being translated into Dari…I am getting confused.
It is simple. Look, you ask a question in
Dari…do you not speak, you speak Dari when you are questioning him and she will
translate your Dari back into English because I understand her English better
than I understand your English.
COUNSEL FOR CLAIMANT: Okay.
PRESIDING MEMBER: And on the other hand you
understand the question better coming straight from you because it is not by
interpreter.
[12]
As
foreshadowed here, the execution of this arrangement would be problematic. In
the end, the applicant would, despite his request for translation, respond in
English to the Board’s questions. In this regard, it was recognized that the
applicant, while by no means fluent, had a basic understanding in English. There
were, however, limitations to this, as reflected in the following extract from
the transcript:
PRESIDING MEMBER: Does
he speak better than you; does he speak better than you?
COUNSEL FOR CLAIMANT: Maybe same as me.
[13]
If
the Board member could not understand counsel’s English, it is a legitimate
question as to how the Board could understand the claimant’s testimony.
Indeed, the transcript of the applicant’s testimony is replete with broken and
disjointed phrases, leaving doubt, ambiguity and at times confusion as to the
substance of the applicant’s evidence.
[14]
The
applicant was then brought into the hearing room and the following exchange
took place between the Board member, the interpreter and the applicant:
PRESIDING MEMBER: Okay. You know what; I might
want to have him sit over there because his English is not perfect and maybe if
I am closer to him I will understand him a little better, because he is going
to be speaking more to me than to the interpreter, at least to start.
So you speak, Madam Interpreter, some
Farsi, is that what you are saying?
INTERPRETER: No, I speak Farsi…
PRESIDING MEMBER: Oh you speak Dari.
INTERPRETER: The name of the language is Farsi or
Persian whichever you choose to call it.
PRESIDING MEMBER: I understand.
INTERPRETER: Dari is a dialect of Farsi spoken in Afghanistan and we both speak Farsi but
different dialects. The dialect I speak is from Iran the dialect he speaks is from Afghanistan. We both speak the same
language.
PRESIDING MEMBER: Except he calls his dialect
Dari.
INTERPRETER: He calls it Dari, I call it…I call…refer
to it as the name of the language which is Farsi or Persian.
PRESIDING MEMBER: So you would say, even though
he says he is speaking Dari you would say he is speaking Farsi.
INTERPRETER: It is not what name you choose to call
it. Yes, he chooses to use the dialect as the name of the language. Like I am
being specific because my background is linguistics but Dari is a dialect of
Farsi, which is the global, like the umbrella language. Dari is one of the many
dialects of Farsi.
[15]
Problems
arose mid-way through the proceeding. Not so much by reason of the applicant’s
English, but by reason of the fact that the Board could not understand counsel
for the applicant:
PRESIDING
MEMBER: Say again; sorry counsel?
You know what; this time speak to the
interpreter because I am not understanding you.
COUNSEL FOR CLAIMANT: This evidence, I do not know
if I can give you this piece. The client spoke in front of me with his father,
he called. The father said that he has the documents but it is inside all the
papers he has to find.
PRESIDING MEMBER: I have to ask you to repeat
it. I am not understanding you counsel and it is my fault.
COUNSEL FOR CLAIMANT: Even not yet?
PRESIDING MEMBER: Can you speak through the
interpreter? Really, I do not understand you.
COUNSEL FOR CLAIMANT: Sure.
PRESIDING MEMBER: I just do not understand your
English.
COUNSEL FOR CLAIMANT: No problem.
PRESIDING MEMBER: Really and I go to understand
what you are saying. So can we try this now? Can you speak through the
interpreter?
COUNSEL FOR CLAIMANT: Sure.
PRESIDING MEMBER: Please.
COUNSEL FOR CLAIMANT: But could I ask the
interpreter if she understood what I told.
INTERPRETER: Well I completely understood.
PRESIDING MEMBER: Well you do, but I do not. You
understand English, but I just do not and I need to really understand every
word she says. Can you understand her…do you understand her when she speaks in
Dari?
…
INTERPRETER: It seems like you are not understanding
either. The day the client came to my office…
COUNSEL FOR CLAIMANT: I am sorry; I think you are
tired.
PRESIDING MEMBER: I am not tired. I just need to
understand you perfectly counsel.
[16]
In
my view, the proceeding adopted did not allow for the orderly and fair
presentation of the evidence, and, as such warrants the decision being set
aside.
[17]
Proceedings
before federal boards and tribunals are to be conducted in either of the official
languages. Translation is provided for the benefit of witnesses, not counsel.
The procedure that unfolded in this case wherein it required the applicant’s
counsel to speak in Dari, despite the interpreter being Farsi, and with the
balance of the proceeding being conducted in English created a situation which
undermined the seriousness of a claim under the Convention and was at best,
confusing. Lost in it all was the applicant who, despite his request for a Dari
translator, testified in English. While the Board member made the best he
could of a difficult situation, the fact remains that the proceedings did not
conform to the requirements of procedural fairness.
[18]
The
failings in the procedure also had a direct and material impact on the core
issue of credibility. The Board prefaced its findings on credibility with the
observation that it had:
… an issue with the demeanour of the
claimant. Frequently in the hearing he smiled broadly and laughed when
answering questions. While the Panel found the claimant to be a pleasant and likeable
young man, the Panel finds that his demeanour indicated that he took the
proceedings lightly, to some extent as a joke, or laughing matter. Given that
he alleged that he is in fear for his life in Afghanistan, the Panel would have expected a more serious
approach by the claimant.
[19]
On
this basis, the Board member drew a negative inference as to the applicant’s
credibility.
[20]
The
record indicates that the behaviour was consistent with his actual character,
and laughter may have been his response to a stressful situation. One example
of this arises during his testimony about his arrest and detention at the
Canadian border:
PRESIDING MEMBER: You stayed there about two
weeks or something like that. You made a thing about the interview, about your
interview at the border. Just to let you know that I am not that concerned with
that interview so I probably will not be asking you any questions on it, I do
not think. Except to the extent that if the Canadians gave you a hard time why
do you want to come to Canada?
CLAIMANT: This is also a question for me that I
mean when you see the reality, I do not know exactly…it is the job of the
officer to (inaudible) and although I gave my passport and I explained that I
do not have visa but I do have a passport and because of this reason I want to
claim.
PRESIDING MEMBER: So anyway the question was if
the Canadians gave you such a hard time why not turn around and go back to
Washington state and make your refugee claim in the United States?
CLAIMANT: The thing is the Canadian law and the
regulation and the reality of Canada is not to make hard for
people, this is the thing I decided. Me [ph] this is sort of problem with the
person, not the Canada.
PRESIDING MEMBER: Or the assistant [ph]. I am
sure the Americans could be just as difficult too if you enter their country
without a visa.
CLAIMANT: Yes but I explained that this is my
passport, I am a student I do not have visa. But the thing is in the
custom…custom service on the second night when they handcuffed me and I laughed.
PRESIDING MEMBER: Probably when you laugh to
policemen they probably are not too happy. In any event, okay, that is fine.
But more importantly is the USA has signed the 1967 protocol on refugees and
accepts, is known for accepting refugees and as a matter of fact I happen to
know they accept roughly the same percentage of…at the end, refugees as Canada does. So I am…I am stating
that unless you or counsel disagree the United States is as noted a refugee intake country as Canada is. So given that I want to
know why you did not stay in the USA
and make an asylum claim there. I am concerned about that.
[21]
Much
later in the proceeding, the applicant’s counsel returned to a the issue previously
explored by the Board member, the claimant’s arrest and detention upon entry
into Canada:
PRESIDING MEMBER: Were you like laughing and
smiling like you are now; were you doing it then? Could that be the
difference?
CLAIMANT: No, at that time I could not talk even,
even in the interview with the officer. You can see in my first interview,
even I could not able to talk in Dari. There is lots of mistakes on it and
when I am reading that interview it is really I think it is not me.
PRESIDING MEMBER: It is just… could it be that
you know your laughing and smiling makes people think you do not take things
seriously. Did that ever cross your mind?
CLAIMANT: Yes maybe but again it is my style of
talking. It is not possible I should cry. But at least I… because my life is
full of violence, I try to make… show myself happy, otherwise it is difficult
to…
[22]
This
was not an isolated exchange. There are other examples where the integrity of
the factual and credibility determinations are called into question by the lack
of precision in language. To choose but one example:
PRESIDING MEMBER: So anyway the question was
if the Canadians gave you such a hard time why not turn around and go back to
Washington state and make your refugee claim in the United States?
CLAIMANT: The thing is the Canadian law and the
regulation and the reality of Canada is not to make hard for
people, this is the thing that I decided. Me [ph] this is sort of problem with
the person, not the Canada.
PRESIDING MEMBER: Or the assistant [ph]. I am
sure the Americans could be just as difficult too if you enter their country
without a visa.
CLAIMANT: Yes but I explained that this is my
passport, I am a student I do not have visa. But the thing is in the custom…
custom service on the second night when they handcuffed me and I laughed.
PRESIDING MEMBER: You left?
CLAIMANT: I laughed, laughed. And officer ask me
why you laughing and I said because people is going… come and going without any
handcuff and you handcuff me and it is because I laugh to myself, that is why I
should be in this situation.
[23]
Two
observations flow from these exchanges. First, there were demonstrable and
serious issues with respect to the capacity of applicant’s counsel to conduct
the proceedings in English; secondly the applicant offered a plausible
explanation for his behaviour before the Board. Far short of suggesting a lack
of credibility, it reflected his anxiety, his manner of coping with stress and
the importance he placed on not showing fear or weakness. There was therefore
a credible explanation given for his behaviour, which was consistent with past
events.
[24]
The
nuances of the evidence and testimony were lost in the ill-conceived procedure
and no conclusion about credibility could safely be drawn. The Board member
was in no position to use the testimony as a basis to draw an over-reaching
negative inference as to the applicant’s credibility.
[25]
The
application for judicial review is granted. The matter is referred back to the
Immigration Refugee Board for reconsideration before a different member of
the Board’s Refugee Protection Division.
[26]
No
question for certification has been proposed and the Court finds that none
arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that
the application for judicial review is granted. The matter is referred back to
the Immigration Refugee Board for reconsideration before a
different member of the Board’s Refugee Protection Division. No question
for certification has been proposed and the Court finds that none arises.
"Donald
J. Rennie"
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