Docket: IMM-4987-13
Citation:
2015 FC 235
Ottawa, Ontario, February 24, 2015
PRESENT: The Honourable Madam Justice Simpson
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BETWEEN:
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KHOSROW BIDGOLI
AND
SOHEILA POUZESHI
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Applicants
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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ORDER AND REASONS
[1]
Khosrow Bidgoli [the Male Applicant] and Soheila
Pouzeshi [the Female Applicant] are a husband and wife from Iran. They have applied for judicial review of a decision of the Refugee Protection
Division of the Immigration and Refugee Board [the Board] dated June 28, 2013
[the Decision]. Their application, which was made pursuant to subsection 72(1)
of the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA],
alleges that there was a failure to provide them with adequate interpretation
services.
[2]
For the following reasons, the application will
be allowed.
The Facts
[3]
In Islamic year 1350, while the Male Applicant
was returning home from his military base, he rescued a woman who was being beaten
by two Hezbollahis. As a result, he was detained for 10 days and given three
months extra military service.
[4]
In June 2008, the Male Applicant helped copy
flyers for Hamid, the son of a friend. Thereafter, Hamid was arrested and
detained for four months.
[5]
In 2009, the Male Applicant actively campaigned
for progressive candidates and he participated in demonstrations. On June 16,
2009, Hezbollahis beat him with electric cables. However, he continued to
attend more demonstrations.
[6]
In June 2011, the Applicants applied for visas
to Canada to visit. In October 2011, the visas were issued and the Female Applicant
left Iran. One month later, the Male Applicant joined his wife in Canada. Both Applicants testified that they intended to return to Iran when they came to Canada as visitors even though the Female Applicant had secretly worshipped
as a Christian in 2004 and 2005.
[7]
In January 2012, while the Applicants were in Canada, the Male Applicant received a call from his brother informing him that Hamid had again
been arrested and had implicated the Male Applicant. His brother informed him
that regime agents had come to both the Applicants’ house and to the Male
Applicant’s mother’s house looking for the Applicants.
The Decision
[8]
The Decision was based on numerous negative
credibility findings which are not challenged in this application.
The Issues
[9]
Against this background, the issues are:
1.
Must the Applicants show that errors in
interpretation were material or prejudicial in the sense the Board relied on
them to their detriment?
2.
Were there non-trivial errors in interpretation?
3.
Can the Applicants be said to have waived their
rights?
Issue 1 – Must the Applicants show that errors in
interpretation were material or prejudicial in the sense that Board relied on
them to their detriment?
[10]
In her decision in Huang v. Canada (Minister of Citizenship and Immigration), [2003] F.C.J. No. 456, Madam Justice Snider
found that errors in interpretation had been made. In this regard, she said at
paragraph 16:
16. …These
errors are not trivial or immaterial; they go to the very essence of the
rejection of the [refugee] claim. In this case, the Board relied, at least in
part, on the errors of translation to support its conclusion that the Applicant
was not credible. The main reason why the Board rejected the Applicant's claim
was this negative credibility finding.
[11]
In her decision at paragraph 8, Madam Justice
Snider noted that in R. v. Tran, [1994] 2 S.C.R. 951 and in Mohammadian
v. Canada (Minister of Citizenship and Immigration), [2001] F.C.J. No. 916,
the Supreme Court of Canada and the Federal Court of Appeal had decided that an
applicant was not required to show that an interpretation error had caused
actual prejudice. Nevertheless, as the above passage shows, she appeared to
base her decision on the fact that prejudice had been established.
[12]
The difficulty is that Madam Justice Snider’s
decision has subsequently been used as authority for the proposition that,
although actual prejudice need not be shown, errors in interpretation must be material.
In my view, this is a questionable proposition because, in the context of
interpretation errors, “material” and “prejudicial” appear to have been given
the same meaning; that is, a negative impact on the Board’s decision. The line
of cases which have adopted this proposition include: Roy v. Canada (Minister of Citizenship and Immigration), 2013 FC 768; Yousif v. Canada (Minister of Citizenship and Immigration), 2013 FC 753; Sherpa v. Canada (Minister of Citizenship and Immigration), 2009 FC 267; and Batres v. Canada (Minister of Citizenship and Immigration), 2013 FC 981.
[13]
However, in Mah v. Canada (Minister of Citizenship and Immigration), [2013] F.C.J. No. 907, Madam Justice Gleason
concluded at paragraph 26, correctly in my view, that “once
an applicant establishes that there was a real and significant translation
errors, he or she is not required to also demonstrate that the error
underpinned a key finding before the RPD decision can be set aside”.
[14]
The Supreme Court of Canada’s decision in Tran
discussed the Charter right to interpretation at paragraph 74. There,
the Court says:
74 Section
14 guarantees the right to interpreter assistance without qualification.
Therefore, 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. The
Charter in effect proclaims that being denied proper interpretation while the
case is being advanced is in itself prejudicial and is a violation of s. 14.
Actual resulting prejudice is a matter to be assessed and accommodated under s.
24(1) of the Charter when fashioning an appropriate and just remedy for the
violation in question. In other words, the "prejudice" is in being
denied the right to which one is entitled, nothing more.
[15]
The Supreme Court does indicate at paragraph 11
of its Decision that it is speaking only of a Criminal law context. It says:
11 At the
outset, I would like to make it very clear that the discussion of s. 14 of the
Charter which follows relates specifically to the right of an accused in
criminal proceedings, and must not be taken as necessarily having any broader
application. In other words, I leave open for future consideration the
possibility that different rules may have to be developed and applied to other
situations which properly arise under s. 14 of the Charter -- for instance,
where the proceedings in question are civil or administrative in nature.
[16]
However, the application of Tran in the
immigration context has been considered. In Mohammadian, the Federal
Court of Appeal made it clear in paragraph 4 that prejudice need not be shown
when translation errors are considered in the context of hearings before the
Immigration and Refugee Board.
Issue 2 – Where there non-trivial errors in
interpretation?
[17]
The Applicants have filed an affidavit, dated
August 22, 2013, and sworn by Leila Heidari-Faroughi. She is a certified
translator. Her affidavit appends the entire transcript of the hearing before
the Board but focuses on the following errors:
•
In answering the Board’s question about her
fear, the Female Applicant said that she is afraid because her husband is being
sought and because that means the authorities are looking for her as
well. However, the translation was that the authorities were looking for him
as well. As interpreted, the answer made no sense.
•
The Male Applicant testified that an event
occurred in 1981. However, the interpreter translated the year as 1980.
•
While the Male Applicant was testifying about a
contrast between demonstrations in Iran and Canada, the interpreter failed to
provide accurate translations about whether the Applicants took pictures of
themselves at demonstrations in Iran.
[18]
In my view, these errors were serious in the
sense that the Applicants’ versions of events and the information they wished
to convey were not accurately communicated to the Board.
[19]
In contrast, other errors were not serious; for
example, the Male Applicant said someone had a “stroke”
and the interpretation was “heart attack”.
[20]
However, my review of the entire transcript
shows that the Applicants did not receive the continuous, precise and competent
translation to which they were entitled.
Issue 3 – Can the Applicants be said to have waived their rights?
[21]
The Male Applicant spoke limited English and his
counsel spoke limited Farsi. The transcript shows that, although the Male
Applicant said he needed the translation, he was able to answer simple
questions without waiting for the interpretation. However, I am satisfied that
he required translation for the more complex questions, and the Female
Applicant required translation throughout.
[22]
There were times when the Male Applicant and his
counsel were aware that the interpreter had calculated dates incorrectly when
moving from the Islamic to the Gregorian calendar.
[23]
In addition, it is clear that the Applicants’
counsel identified some issues with interpretation. At page 52 of the
transcript, Counsel refers in closing submissions to “…problems
in interpretation…” as a reason for asking the Board not to conclude
that the Applicants were untruthful. Nevertheless, the Board in paragraph 11
of the Decision, incorrectly states that “no objections
were raised about the quality of the interpretation”. In these circumstances,
the Applicants cannot be said to have waived their right to interpretation as
the issue was raised before the Board.
Conclusions
[24]
The interpretation errors were serious in that
the meaning of the Applicants’ evidence was distorted. As well, the right to interpretation
was not waived. Although the errors were not material/prejudicial in the sense
that they caused the Board to reach the negative credibility determinations
which resulted in the refusal of the Applicants’ refugee claims, there is no
requirement for such materiality or prejudice. Accordingly, the application
will be allowed.
Certified Question
[25]
The Applicants proposed a question for appeal
but, in view of their success on this application, it need not be addressed.
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