Docket: IMM-12692-12
Citation:
2014 FC 667
Ottawa, Ontario, July 8, 2014
PRESENT: The
Honourable Mr. Justice Roy
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BETWEEN:
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ALEXANDRA VAKULENKO
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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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JUDGMENT AND REASONS
[1]
In this application for judicial review pursuant
to section 72 of the Immigration and Refugee Protection Act, SC
2001, c 27 [IRPA], the sole issue for disposition is whether the duty of
fairness owed to the applicant has been breached by the Refugee Protection
Division [RPD] in the treatment given to the concerns about the interpretation
made available to the applicant at the hearing.
[2]
The applicant has raised some other issues but
they are, in my view, devoid of any merit. There was not in this case a
reasonable apprehension of bias: on the contrary the RPD sought to be fair to
the applicant, including attempting to satisfy concerns about the quality of
the translation when the matter was raised at the hearing. Similarly the
alleged failure to consider the so-called “gender guidelines”, issued by the
Chairperson of the Immigration and Refugee Board of Canada pursuant to
paragraph 159(1)(h) of the IRPA, did not have an air of reality. Not only no
such failure was shown, but it is not clear whether such failure could
constitute an error in law giving rise to a reviewable error. Guidelines are
issued for the purpose of assisting members in carrying out their duties.
Without more specificity, the argument around the use of guidelines fails.
[3]
The central issue in this case was the credibility
of the applicant. She was a woman of 73 years of age at the time the
application for judicial review was made. She came to Canada from her country of nationality, Russia, on a temporary resident visa. It was not completely
clear what her purpose was in coming to Canada: one purpose was to attend a wedding;
the other was an attempt to get away from an abusive partner and to live with
her relatives in Canada.
[4]
It appears that her stepson considered ways to
allow her to stay in Canada. She eventually made an application based on
sections 96 and 97 of the IRPA. It is from the refusal of the RPD to grant that
application that judicial review is sought.
[5]
The RPD found that a number of credibility
issues rendered her application unsupportable (Reasons, at para 18). However,
the applicant states that difficulties with the interpretation before the RPD
generated confusion that was held against the applicant as affecting her
credibility.
[6]
The matter of the quality of interpretation was
raised at the hearing by the applicant’s granddaughter. A discussion ensued between
counsel for the applicant (who is not counsel for the applicant on the judicial
review application) and the RPD panel. The upshot of the discussion was that a
“spot audit” would be done for the purpose of ascertaining the quality of the
interpretation.
[7]
As I understand it, a spot audit consists of
increments of testimonies, of a few minutes each, picked at random, and reviewed
by another interpreter with a view to rating the interpretation. In this case,
the RPD chose to require such a spot audit.
[8]
However, once it had received the results of the
spot audit, the RPD also chose to satisfy itself that the interpretation was
adequate in the circumstances and proceeded to decide against the applicant
without seeking observations or comments from her or her counsel. In other
words, the RPD never shared with the applicant the results of the spot audit
before making its decision on the merits, including findings on the credibility
of the applicant. The applicant was not heard by the decision-maker on the
results of the audit it was agreed on at the hearing.
[9]
Since the interpretation was deemed adequate by
the decision-maker, it was not necessary to consider further if some of the
credibility issues were due to confusion created by the interpretation.
[10]
In my view, there is one determinative issue
here and it relates to procedural fairness, which carries a standard of review
of correctness (Sketchley v Canada (Attorney General), 2005 FCA 404,
[2006] 3 FCR 392). As put by Bastarache and Lebel JJ in Dunsmuir v New
Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190:
[50] … When applying the correctness
standard, a reviewing court will not show deference to the decision maker’s reasoning
process; it will rather undertake its own analysis of the question. The
analysis will bring the court to decide whether it agrees with the
determination of the decision maker; if not, the court will substitute its own
view and provide the correct answer. From the outset, the court must ask
whether the tribunal’s decision was correct.
[11]
The issue is whether or not it was incumbent on
the RPD to allow the applicant to comment on the results of the audit before a
decision was to be made on the adequacy of the audit. Was the RPD right in
finding the interpretation to be adequate without having afforded the applicant
an opportunity to comment on the audit and the conclusion that it was adequate?
[12]
The Crown was largely silent on the issues
raised in this judicial review application. The respondent seems to argue that
the interpretation was adequate. But nothing is offered on the right to
participate in the hearing and to be offered an opportunity to present
observations on the audit that was obviously deemed to be necessary in view of
the allegation that the translation was deficient, which could have had an
impact on the ability of the applicant to testify credibly.
[13]
The law on interpretation is not in dispute.
Following in the footsteps of the Supreme Court of Canada in R v Tran,
[1994] 2 S.C.R. 951 [Tran], the Federal Court of Appeal confirmed in Mohammadian
v Canada (Minister of Citizenship and Immigration), 2001 FCA 191, [2001] 4
FC 85 [Mohammadian], that the same framework as described in Tran
applies in refugee cases. Thus, “the interpretation
provided to applicants before the Refugee Division must be continuous, precise,
competent, impartial and contemporaneous.” Furthermore, the Court of
Appeal agreed with the trial judge in that case that no proof of actual
prejudice is required in order to obtain relief. Specifically, the Court
endorsed fully in the context of refugee claims this passage of Tran: “it would be wrong to introduce into the assessment of whether
the right has been breached any consideration of whether or not the accused
actually suffered prejudice when being denied his or her s. 14 rights.”
[14]
However, it is also acknowledged that the
standard of perfection is not the one to be attained. The Supreme Court spoke
in terms of “linguistic understanding” and the standard was adopted in refugee
cases. Some have encapsulated the standard in one word: adequate (Singh v Canada (Citizenship and Immigration), 2010 FC 1161 [Singh]).
[15]
Once the quality of the interpretation has been
raised at the hearing, which was not late and is in due course according to Mohammadian,
supra, and it is decided that an audit would assist in determining
whether it meets the standard of linguistic understanding, the question is
whether the audit ought to be shared before a decision can be made. It was
certainly shared in Singh, supra, and, in my view, it is a
requirement of procedural fairness that the applicant be given an opportunity
to comment. That was not done in this case as the results of the audit were not
made available to the applicant in order to afford an opportunity to be heard.
[16]
The content of the duty of fairness will vary in
any administrative decision-making situation: the requirements have to vary in
view of the diversity of administrative action. It can be minimal, as in Canada (Attorney General) v Mavi, 2011 SCC 30, [2011] 2 S.C.R. 504, or it may be
much more extensive. Brown and Evans, in Judicial Review of Administrative
Action in Canada (Brown and Evans, Judicial Review of Administrative
Action in Canada (Toronto, On: Carswell, 2013) (loose-leaf updated 2014,
release 1)) identify what they call “a common core to the
participatory rights.” They wrote at paragraph 7:3110:
Despite the diversity of content, however, it
is possible to identify a common core to the participatory rights that the duty
of fairness requires. Its principal purpose is to provide a meaningful
opportunity for those interested to bring evidence and arguments that are
relevant to the decision to be made to the attention of the decision-maker, and
correlatively, to ensure that the decision-maker fairly and impartially
considers them.
[17]
It is of course in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817 [Baker], that
the Court enumerates five factors in determining the content of the duty of
fairness. They are usefully summarized in Congrégation
des témoins de Jéhovah de St-Jérôme-Lafontaine v Lafontaine (Village),
2004 SCC 48, [2004] 2 S.C.R. 650 :
5 The content of the duty of fairness
on a public body varies according to five factors: (1) the nature of the
decision and the decision-making process employed by the public organ; (2) the
nature of the statutory scheme and the precise statutory provisions pursuant to
which the public body operates; (3) the importance of the decision to the
individuals affected; (4) the legitimate expectations of the party challenging
the decision; and (5) the nature of the deference accorded to the body: Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817.
In my view and having regard to the facts and legislation in this appeal, these
considerations require the Municipality to articulate reasons for refusing the
Congregation’s second and third rezoning applications.
[18]
In my view, the requirements of procedural
fairness in a case like this fall closer to the judicial end of the range than
the legislative one. As put by L’Heureux-Dubé J in Baker, “the closeness of the administrative process to the judicial
process should indicate how much of those governing principles should be
imported into the realm of administrative decision making.” (para 23)
[19]
Here, the RPD conducts hearings, makes findings
of fact, applies legislation and the facts to that legislation in cases where
the stakes are vey high for the applicants. It is evidently important that they
be able to participate fully in hearings that may well determine their fate.
Thus the law on interpretation at those hearings is the same as that in
criminal trials, that is it must be continuous, precise, competent, impartial
and contemporaneous.
[20]
Once it has been determined that there is an
issue around the quality of the interpretation requiring some verification, the
process has to be completed by allowing the applicant to comment on the results
of the audit. Such would be a reasonable expectation of someone directly
affected by the interpretation. The right to participate fully in the hearing
of that importance carries the right to see the results of the audit and to be
able to comment on them.
[21]
Furthermore, in the case at hand, the quality of
interpretation was somewhat equivocal. As acknowledged by the audit itself, the
interpretation was less than perfect.
[22]
The respondent’s argument that the audit shows
that the interpretation was adequate seems to me to miss the point. The
adequacy of interpretation issue is not reached if procedural fairness is not
itself adequate. Administrative tribunals are owed a large measure of
deference, through the standard of review of reasonableness, when deciding the
merits of cases. However, the law requires that they follow the rules of
procedural fairness in the process leading to that decision on the merits. As I
see it, procedural fairness is a condition precedent to a valid consideration
of the merits of the case.
[23]
Persons affected by those decisions have the
right to participate. Brown and Evans, supra, put it this way: “In particular, many public decision-makers are under a legal
duty to afford to interested persons a fair opportunity to participate in the
decision-making process before any action is taken that is detrimental to their
interests.” (para 7:1100) Once the quality of the interpretation is
considered sufficiently doubtful that an audit is ordered, the fairness of the
process commands that it include the opportunity to comment on the results. The
participation, which “tend[s] to enhance the
acceptability of administrative action” (Brown and Evans, para 7:1212)
is at the heart of the duty to act fairly (see Baker, supra, at
page 831; also Suresh v Canada (Minister of Citizenship and
Immigration), 2002 SCC 1, [2002] 1 S.C.R. 3). If the
duty to act fairly has been deficient, one never reaches the merits of the case
which is reviewable on a reasonableness standard.
[24]
As a result, the application for judicial review
is granted. The matter is sent back for redetermination by a differently
constituted panel in view of the fact that the panel, in this case, had already
determined the merits of the claim in spite of the procedural fairness
infringement. The acceptability of administrative action comes at that price.
There is no question for certification.
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