Docket: IMM-1017-14
Citation:
2014 FC 1029
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, October 30, 2014
PRESENT: The Honourable Mr. Justice Martineau
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BETWEEN:
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ANTOINETTE GOMA BOUANGA
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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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JUDGMENT AND REASONS
[1]
The applicant is a citizen of the Republic of Congo [Congo]. In the affidavit produced in support of this application for
judicial review, she reiterates the principal facts that were related in
greater detail in the Basis of Claim form and accompanying letter.
[2]
Essentially, the applicant claims to have worked
in the Congo for several years for General Jean François Ndeuguet [General],
Director-General of the Congolese police. In early 2012, she purportedly
witnessed the General rape her husband’s niece. After having promptly told the
General’s wife what she had seen, she states that the following day she was
taken to a police station where she was tortured and raped. She would remain in
detention in a residence [translation]
“guarded by Zairians” for four months before being transferred to the Mandibou
police station, where she suffered mistreatment. Fortunately, the following day
she met an officer who was a friend of her uncle who would help her escape. Later,
she went into hiding in her hometown of Nkengue, while during this period her
uncle made plans to help her leave the country. At the end of January 2013, they
travelled to the Democratic Republic of the Congo [DRC] so that the applicant
could obtain a visa from the U.S. embassy. The two returned to Nkengue, where
four months elapsed before her departure for the United States, on June 4, 2013.
It was on September 20, 2013, that the applicant arrived in Canada, where her half-sister lives, and claimed refugee protection.
[3]
The applicant is currently challenging the
legality of a decision by the Refugee Protection Division [panel] of the
Immigration and Refugee Board, dated January 16, 2014, which rejected her claim
for refugee protection by reason of various issues related to credibility and
to the existence of subjective fear that were noted by the panel in its decision.
[4]
Before me, the applicant reiterated the
complaints expressed in her written memorandum regarding the poor quality of
the translation provided by the interpreter at the hearing before the panel. The
issue as to whether such a failure is fatal and whether it resulted in the
denial of her right to a full hearing must be determined on a correctness
standard of review, as it is a matter of procedural fairness (Dunsmuir v New
Brunswick, 2008 SCC 9; Canada (Citizenship and Immigration) v Khosa,
2009 SCC 12 at para 43).
[5]
It should be recalled that the hearing before
the panel was held by videoconference in Edmonton and Calgary. Proceedings were
conducted in English – a language the applicant does not understand. The
applicant was represented at the hearing by an Anglophone counsel who did not
understand French. He had been assigned the case only a few days prior to the
hearing, because up to that point she had not been able to obtain counsel from
Legal Aid to assist her with her claim for refugee protection. Nevertheless,
all of the applicant’s previous proceedings before the panel (including the
refugee protection claim) had been in French: this was because the applicant’s
half-sister – who speaks and understands French – had helped the applicant file
her claim for refugee protection. The panel retained the services of an
interpreter who translated, over the telephone, from Kikongo to English and
vice versa. After the decision was issued, the applicant retained another
counsel – Mylène Barrière, who has since been replaced by Annick Legault – to
represent her in this application for judicial review.
[6]
Efforts were undertaken to obtain an audit
report of the interpretation of the hearing by Ms. Barrière from numerous
translation firms and from the offices of Citizenship and Immigration Canada
[CIC]. As it turned out, the only professional interpreter qualified to
translate from Kikongo to English that she was able to find was the same
interpreter who had provided translation at the hearing. Ms. Barrière thus
turned to the services of Jean-Daniel Mboungou – who is an accredited
interpreter with both the panel and CIC – to translate into French everything
that was said at the hearing that was not in French. Given that Mr. Mboungou is
not fluent in English, Ms. Barrière also enlisted the services of Wilfried
Mayala, who is not an accredited interpreter but who is fluent in English and Kikongo,
to verify the content of a preliminary transcript. Ms. Barrière, Mr. Mboungou
and Mr. Mayala met later to revise the transcript and interpretation audit
report; the applicant filed the audit report with the Court as Exhibit C of the
affidavit of Wilfried Mayala.
[7]
At the hearing before me, counsel for the
respondent did not reiterate the arguments in his written memorandum to the
effect that the Court should assign no probative force to the translation audit
report (allegedly because Mr. Mayala is not a qualified interpreter or because the
manner in which the report was prepared could raise doubts about the
independence of the translator and accuracy of the report). Regardless, after
examining the affidavits produced by the applicant, I find that the audit
report must be admitted into evidence – the undersigned being also satisfied
that the circumstances surrounding the fashioning of the report do not pose a
problem in this matter. Moreover, I assign considerable weight to its contents.
In this case, the respondent produced no evidence refuting the audit report. As
such, I have reviewed the entire hearing transcript reproduced in the certified
tribunal record in light of the audit report to determine whether, in fact, the
interpretation provided at the hearing on November 19, 2013, was adequate under
the circumstances.
[8]
First, it should be noted that the right to the
assistance of an interpreter for a party or witness in any proceedings who does
not understand or speak the language in which the proceedings are
conducted, is constitutionally protected under section
14 of the Canadian Charter of Rights and Freedoms (Part I of The Constitution Act, 1982, being Schedule
B to the Canada Act 1982 (U.K.), 1982, c. 11). The case law of
this Court recognizes that the translation provided by the interpreter need not
be “perfect’; it must, however, be “adequate”. It should be said in passing
that no proof of actual prejudice is required for the Court to return the
matter for redetermination. What is important is that the judge is satisfied
that the claimant did not benefit from “precise,
continuous, competent, impartial and contemporaneous interpretation” at
the hearing, and that they did not waive their right to receive the assistance
of an interpreter (Mohammadian v Canada (Minister of Citizenship and Immigration),
2001 FCA 191). See also: Sayavong v Canada (Minister of Citizenship and Immigration),
2005 FC 275 at para 1 (Lutfy C.J.); Singh v Canada (Citizenship and
Immigration), 2010 FC 1161 at para 3 (Lemieux J.); Mohamed Neheid v
Canada (Citizenship and Immigration), 2011 FC 846 at para 9 (Phelan J.); Zaree
v Canada (Citizenship and Immigration), 2011 FC 889 at paras 8 and 11 [Zaree]
(Martineau J.); Mah v Canada (Citizenship and Immigration), 2013 FC 853
at paras 22-23 (Gleason J.); Batres v Canada (Citizenship and Immigration),
2013 FC 981 at para 13 (McVeigh J.).
[9]
Second, the Immigration
and Refugee Board of Canada
Code of Conduct for Interpreter Service Contractors,
to which all interpreters who work for the Immigration and Refugee Board must
adhere, clearly sets out at Rule 2 that if an interpreter believes that he or
she is unable to competently interpret or translate what was stated in the
source language into the target language, the interpreter must inform the panel
without delay. In addition, Rule 3 provides that interpreters must: “faithfully and accurately interpret or translate what is
stated in the source language into the target language, having regard primarily
to meaning and secondarily to style, without any paraphrasing, embellishment,
omission, explanation, or expression or opinion, using the same person as in
the source language and the closest natural equivalent to the source language”.
The Board’s Interpreter Handbook adds that interpreters have a responsibility
to interpret accurately, which means interpreting exactly what has been stated
and to correct any errors immediately. The interpreter must also inform the
panel if the person who is the subject of the proceeding does not understand a
question asked during the hearing.
[10]
In this case, it is clear from the audit report
and the panel’s decision that the numerous issues with the translation at the
hearing may have had an overall influence on the applicant’s credibility. For
the present purposes, it is not necessary to quote at length all of the
examples found in the audit report. Suffice it to say that there are numerous instances
in which the interpretation was neither faithful to the Kikongo, nor to the
English. Moreover, on occasion, and without any indication to the panel, the
interpreter – who was from the DRC – had to resort to a language other than
Kikongo in order to communicate with the applicant. That language was Lingala,
which was used at various times, given that the applicant did not always
understand him. Indeed, it should be understood that the Kikongo in Brazzaville (Congo) is not exactly the same as the Kikongo from the DRC. Furthermore, the
interpreter was summarizing, paraphrasing, condensing and exaggerating what was
said, in addition to concealing the errors and omissions in his translation. If
we compare the hearing transcript with the audit report submitted by the
applicant, one can clearly see that the words used by the interpreter did not
adequately reflect what was stated by either side at the hearing.
[11]
Before me, counsel for the respondent
acknowledged that the interpreter’s translation had not always been adequate
and that this may have negatively influenced the assessment of the applicant’s
credibility and subjective fear. Still, she argues today that the lack of an
adequate translation is not determinative because the applicant failed to
complain about the poor quality of the interpretation at the earliest possible
opportunity, which the applicant obviously disputes. Armed with evidence in
hand, the applicant’s learned counsel argues that one need only read the audit
report to see that her client stated that she could not understand the
interpreter on numerous occasions. The problem lies with the fact that he would
often inaccurately translate what she had stated. Moreover, the applicant did
in fact try to tell the panel that perhaps the interpreter was having difficulty
understanding her story, but the panel decided to stop her. When the applicant
was later able to make comments, the interpreter changed the meaning, the
result being that the panel never knew that the applicant had raised the
interpretation issues.
[12]
There is one constant that emerges from the case
law cited by both parties. What is paramount in a hearing – the consequences of
which affect the life and safety of a refugee claimant – is to ensure that
there is mutual linguistic understanding. In this regard, the issue as to
whether it was reasonable to expect that a complaint be filed before the panel
is a question of fact which must be assessed on a case-by-case basis. In Zaree,
above, this Court stated:
[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.
[13]
In this case, I am satisfied that a serious
breach of procedural fairness has occurred. At the same time, I dismiss any
claim on the respondent’s part to the effect that the applicant failed to raise
a timely objection to the poor quality of the translation at the hearing. Not
to belabour the point, but consider that it is apparent that throughout the
hearing not only did the applicant have difficulty understanding the
interpreter, and sought to raise the issue, but the panel itself did not always
seem to understand what the applicant was trying to say. This was demonstrated
by the fact that on several occasions the panel or the applicant noticed
translation errors, including the instance in which the interpreter added the
month of November to a date (when the applicant had only indicated the day) (interpretation
audit report at pages 282 and 283 of the applicant’s record) and another
instance in which he had failed to translate everything the applicant had
stated and the panel had to ask him to translate her full response (interpretation
audit report at page 296 of the applicant’s record). One cannot attribute any
fault to either the applicant or her counsel, who did not understand Kikongo or
Lingala. Lastly, the extent of the translation errors was not always apparent,
and it was only after the hearing that the applicant was able to see that the
interpreter had made major errors in translating both her testimony as well as
the questions of the panel.
[14]
In conclusion, the applicant was denied her
right to a full hearing before the panel. The application for judicial review
shall therefore be allowed and the matter referred back for redetermination by
a different decision-maker. Both counsel agree that this matter raises no
serious question of law.
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