Docket: IMM-2680-19
Citation: 2020 FC 684
Ottawa, Ontario, June 11, 2020
PRESENT: The Honourable Madam Justice Elliott
| BETWEEN:
|
| CHUN SANG LO
|
| Applicant
|
| and
|
| THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
|
| Respondent
|
JUDGMENT AND REASONS
I.
Overview
[1]
This is an application for judicial review of the decision of the Immigration Appeal Division [IAD] of the Immigration and Refugee Board dated April 3, 2019 [Decision] denying the Applicant’s appeal of a visa officer’s decision in a spousal sponsorship application.
[2]
For the reasons that follow, this judicial review is dismissed.
II.
Background Facts
[3]
The Applicant, Chun Sang Lo, is a citizen of Canada. On December 14, 2016, he submitted a spousal sponsorship application on behalf of his wife, a citizen of China.
[4]
On June 15, 2017, the Applicant’s wife attended an interview at the Hong Kong visa office.
[5]
On June 21, 2017, a visa officer denied the sponsorship application on the basis that the marriage was not genuine. The officer found the Applicant’s wife provided vague information about how the relationship developed and could not provide any substantial details or specific examples to demonstrate her knowledge of her husband. The Applicant appealed this decision to the IAD.
[6]
On March 4, 2019, the Applicant and his wife testified at their IAD hearing with the assistance of an interpreter. On April 3, 2019, the IAD dismissed the appeal.
[7]
The IAD found the Applicant did not demonstrate on a balance of probabilities that the marriage was genuine and was not entered into for the primary purpose of acquiring status under the Immigration and Refugee Protection Act [IRPA]. The IAD found the Applicant and his wife gave vague and general answers about their relationship without any details or substance behind the generalizations. The IAD concluded that the evidence of the couple’s communication, financial support, and the Applicant’s visits to China could exist for a variety of reasons which would not necessarily include involvement in a genuine relationship.
[8]
Given the failure of the Applicant and his wife to establish the genesis and development of their relationship, the IAD was not satisfied that the concerns of the visa officer related to their compatibility and knowledge of each other had been addressed.
[9]
The IAD concluded, based on all the evidence, that there was insufficient persuasive evidence to establish, on a balance of probabilities, the genuineness of the marriage of the Applicant and his wife.
III.
Issues
[10]
The Applicant raises two issues in this application.
[11]
First, the Applicant argues that the IAD’s decision cannot stand because during the hearing inadequate interpretation from Cantonese to English led to a breach of procedural fairness. The Applicant argues that this inadequate interpretation caused the IAD to conclude erroneously that the Applicant and his wife were giving vague answers about their relationship. The Applicant argues that “[t]he issue of ‘vagueness’ undermines the entire decision and is the principal reason that the Board did not accept the genuineness of the marriage.”
[12]
Second, the Applicant argues that the IAD drew an unreasonable conclusion in the Decision. The Applicant argues that the IAD made contradictory statements about the communication between the couple, finding that there was “sufficient evidence establishing communication between the couple,”
but “a lack of evidence establishing that the communication was reflective of a genuine marriage.”
IV.
Standard of Review
[13]
In cases where the adequacy of the interpretation at a hearing is at issue no standard of review applies. It is up to the reviewing Court to determine whether the Applicant’s procedural fairness rights were violated: Mah v Canada (Citizenship and Immigration), 2013 FC 853 [Mah] at paragraph 9.
[14]
The ultimate question to be answered by a reviewing Court when considering an issue of procedural fairness, including the adequacy of interpretation, is whether the Applicant knew the case to be met and had a full and fair chance to respond: Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 [CPR] at paragraph 56.
[15]
Regarding the second issue, a decision is reasonable if the decision-making process is justified, transparent and intelligible resulting in a determination that falls within the range of possible, acceptable outcomes which are defensible on the facts and law: Dunsmuir v New Brunswick, 2008 SCC 9 at paragraph 47 [Dunsmuir].
[16]
In Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] the Dunsmuir hallmarks of a reasonable decision were not changed. The Supreme Court clarified the approach to reviewing reasons. It stated that a reasonable decision is “one that is based on an internally coherent and rational chain of analysis that is justified in relation to the facts and law that constrain the decision maker.”
When that exists, a reviewing Court is required to defer to such a decision: Vavilov at paragraphs 2 and 85.
V.
How Adequate Interpretation is Determined
[17]
The Applicant bears the burden of showing on a balance of probabilities that the interpretation provided at the IAD hearing fell below the standard established in the jurisprudence.
[18]
It is accepted that while interpretation must be continuous, precise, competent, impartial and contemporaneous it is not required to be perfect. Nor is proof of actual prejudice required to obtain relief: Mohammadian v Canada (Minister of Citizenship and Immigration), 2001 FCA 191 [Mohammadian] at paragraphs 4 and 6.
[19]
To ground a finding that there has been a breach of procedural fairness, the Applicant must show that there are serious, non-trivial, problems with the interpretation: Siddiqui v Canada (Citizenship and Immigration), 2015 FC 1028 [Siddiqui] at paragraph 72. The Applicant is not required to demonstrate that an interpretation error underpins a key finding if they can establish that there was a real and significant interpretation error: Mah at paragraph 26; Siddiqui at paragraph 68.
[20]
In Mohammadian, the principle or purpose of interpretation was acknowledged to be “linguistic understanding”
, based on statements made by Chief Justice Lamer in R v Tran, [1994] 2 S.C.R. 951.
[21]
An example of when linguistic understanding may be found, despite there being a variety of problems with the interpretation, is provided by Mr. Justice Boswell in Dhaliwal v. Canada (Public Safety and Emergency Preparedness), 2015 FC 157 at paragraph 67:
[67] In my view, the interpretation was not as precise as it could have been. The interpreter occasionally interpreted in the third person instead of the first person; she paraphrased a lot; she sometimes added information that was not said; and she was sometimes mistaken. However, as the Supreme Court has recognized, interpretation is “an inherently human endeavour which often takes place in less than ideal circumstances” (Tran at 987). Despite the imperfections in this case, I think the Applicant always understood what was being said and was herself understood. There was linguistic understanding between the parties on the essential issues before the IAD.
VI.
The Interpretation at the IAD Hearing
[22]
At the commencement of the hearing, the IAD advised the Applicant as follows:
-
remember to wait for full interpretation of all of the questions before answering any questions;
-
it is important to pause between all of your sentences to allow the interpreter to keep up with your testimony;
-
if you do not know the answer to a question just state that you do not know;
-
if you do not understand the question, please ask for clarification;
-
If you have any difficulties understanding or communicating with the interpreter, please speak up and let us know immediately.
[23]
The Applicant was asked whether he understood the interpreter. He said that he did.
[24]
When the Applicant’s counsel began questioning him, the IAD immediately had to intervene to tell the Applicant to pause and break up his testimony to allow the interpreter to keep up. At various times during the hearing the Applicant was reminded by the IAD or the interpreter to slow down or break his answers into shorter sentences, with pauses.
A.
The Unofficial Transcript
[25]
In support of the argument that the interpretation at the hearing was inadequate, the Applicant’s adult daughter, who speaks both Cantonese and English, created a 147-page transcript of the IAD hearing by listening to the recording. She set out, in English, the question asked, the answer given by the Appellant and the answer given by the interpreter. I will be referring to this document as the “unofficial transcript”
.
[26]
In her accompanying affidavit, the Applicant’s daughter stated that the interpreter struggled to interpret the IAD member’s questions and the testimony of the witnesses during the hearing. The interpreter also spoke in a low tone and said unintelligible sentence fragments before interpreting the testimony intelligibly. The interpreter was impatient, interrupted the Applicant, and shushed the Applicant when he was trying to explain himself.
[27]
Also in her affidavit, the Applicant’s daughter made comments about the style of questioning by the Respondent. She stated her belief that assumptions were made by the Respondent and that counsel misled the member when making a particular statement. These comments and statements are argumentative, unrelated to the question of the calibre of the interpretation and are subjective. They are not facts and will not be considered.
B.
The Applicant’s submissions
[28]
The Applicant argues that the interpretation concerns in this case are not the usual kind; they are not readily apparent. He says that the IAD did not appear to have any particular concerns with the interpretation, but there is a theme throughout the Decision that the answers he gave were vague. He lays this at the feet of the interpreter. He says that the way the interpreter translated what he was saying caused confusion for both the Respondent and the IAD. The result is that the interpretation wrongly caused the IAD to find that his testimony was vague. That in turn caused the IAD to find that: (1) there was a lack of evidence to support the genesis and development of his relationship with his wife and (2) the evidence failed to address the concerns raised by the visa officer.
[29]
The Applicant’s memorandum includes page references to, and excerpts from, the unofficial transcript. He argues the passages referred to demonstrate the inadequate interpretation provided during the hearing.
C.
The Respondent’s submissions
[30]
The Respondent says the interpretation was adequate but the answers provided by the Applicant were not. The Respondent also notes several instances where there was imprecise interpretation by the Applicant’s daughter, who is not a certified interpreter or transcriptionist.
[31]
The Respondent notes that the issues identified by the Applicant’s daughter such as the interpreter being impatient, interrupting the Applicant and shushing him, as well as appearing to be frustrated with the Applicant at times would all have been apparent during the hearing. However, the Applicant, who was represented by different counsel at the hearing, did not complain about the quality of interpretation in the hearing, nor after it, in a timely manner. It was first raised as an issue by new counsel in this application.
[32]
With respect to the alleged interpretation errors, the Respondent states that the interpretation either effectively conveyed the meaning of the answer, or the answer was provided after further questioning by the member or counsel.
[33]
In any event, the Respondent submits that any interpretation errors were only minor. They were not material to the outcome. They did not prevent the parties or the member from having a linguistic understanding of the questions or the answers given by the Applicant. The Respondent noted that the interpretation did not prevent the Applicant from providing more detailed testimony had he wished to.
D.
Analysis
[34]
I have reviewed both the official transcript and the unofficial transcript. I note that, as is common with transcripts, neither could be said to be perfect. Each contained errors. In my view, as explained below, any errors were not material, and the parties had a linguistic understanding of the proceeding, the questions and the evidence.
[35]
The Applicant stressed that because the interpretation was not accurate the IAD found the testimony to be vague. In addition, he says that the unofficial transcript indicates that the interpreter would ask questions rather than translate and would add extra words to questions asked by counsel or the member.
[36]
The Respondent points out that the IAD findings were unrelated to any interpretation issues identified by the Applicant. Also, and importantly, the Applicant’s answers were eventually clarified through further questioning.
[37]
The Respondent says that any issues were caused by the way the Applicant testified, in that the Applicant:
Spoke too fast, despite being told to slow down;
Gave long answers despite being told to give shorter ones; and
Talked over the interpreter.
[38]
Keeping in mind that adequacy, not perfection, is the required standard for interpretation I find that the interpretation was adequate. I also find that any errors were not material to the outcome, therefore it is not necessary to consider the question of waiver.
[39]
I will explain my findings with reference to some of the Applicant’s examples of problematic interpretation.
(1)
Rent
[40]
One of the interpretation issues that the Applicant raised was what he called a miscommunication of the evidence on how his wife spent the money he sent to her each month.
[41]
The Respondent established that the Applicant earned approximately $24,000 per year and sent his wife $500 per month, which was 25 percent of his income. The Respondent tried, without success, to pin down why the Applicant was sending that much money to his wife.
[42]
Eventually the IAD stepped in to ask “What is she doing with that money?”
The hearing transcript shows that the Applicant’s answer was “Oh, then I don’t know what she do of (sic) that money, but I would just like, regard she use that as the family, the expenses.”
The Applicant’s answer, as transcribed in the unofficial transcript, is “I don’t know what she is using it for, but it is provided as family expenses.”
There is little difference, if any, in the substance of the interpretations.
[43]
The IAD expressed concern that the Applicant had no idea what his wife was spending the money he was sending her on. The hearing transcript indicates the Applicant’s answer was “[t]he budgeting, yeah. So she used this amount should be for grocery shopping. She could be that for buying the clothes for the children, and so she doesn’t have to pay for the rent.”
[44]
The unofficial transcript shows that the Applicant told the IAD “[o]ur finances are like this now. I continue to provide her with $500.00 a month, to buy groceries, if her kid needs new clothing and stuff like that. As she doesn’t need to pay rent.”
[45]
The IAD expressed concern that the Applicant had changed his answer from not knowing what his wife spent the money he sent on to saying that she spent it on groceries, clothes and rent. The unofficial transcript shows that the Applicant said it was “used for daily life expenses. But what rent? There is no rent.”
The official transcript shows the answer was “no, no, not the rent. No rent, yeah.”
[46]
Both versions of the transcribed evidence make it clear that the money was not used to pay rent. There was linguistic understanding of that evidence.
[47]
The IAD indicated it did not understand the Applicant’s answer so it re-stated the question concluding with “[s]o why are your answers changing?”
The unofficial transcript indicates the interpreter said that the IAD’s question began with “the question is why did you change your answer”
otherwise, the content in each version was the same. Nothing can turn on whether the question began or ended with that reference.
[48]
The Applicant gave further answers but he never addressed the critical question put to him by the IAD which was why did he change his answer?
[49]
The Applicant suggests that the money/rent discussion is an example of how the interpretation contributed to the IAD finding that the Applicant’s answers were vague.
[50]
I disagree.
[51]
For one thing, the quality of the interpretation meets the standard of imparting linguistic understanding. Equally important is that the Applicant’s answers were vague and superficial in both versions of the transcript. In the Decision, the IAD acknowledged that money transfers occurred but found they did not demonstrate a genuine relationship given that the Applicant and his wife had not established the genesis and development of their relationship on a balance of probabilities.
[52]
The Decision also found that the Applicant was not aware of whether the source of his wife’s investment capital was from an inheritance or from her former husband. His reason for that was that he and his wife did not talk about finances together.
[53]
The Applicant has not shown that this series of questions and answers, or lack of answers, was impacted by any interpretation issue throughout the hearing. The Applicant’s manner of testifying was to speak superficially without any meaningful detail. When that was coupled with his interruptions, speaking over others and answering evasively or obtusely, his answers were of very poor quality. I have no hesitation, after reviewing the record, in finding that it was the Applicant’s answers that were vague and confusing, not the interpretation.
(2)
Compatibility
[54]
The Applicant submits that there were a lot of pauses by the interpreter when she was interpreting and that she was confused by simple English phrases. He says that the interpreter would cut him off because she could only translate short sentences. This behaviour by the interpreter was said to cause confusion for the IAD and for counsel. The Applicant says that this confusion fed the notion that his testimony was vague.
[55]
One of the examples provided to illustrate the creation of confusion by improper interpretation is the questioning by the IAD when it was seeking specific examples of how the Applicant and his wife are compatible.
[56]
In the unofficial transcript the answers provided include the word “um”
and a number of ellipses indicating, presumably, a pause. While it is therefore somewhat stilted and difficult to read, there are nonetheless very clear, coherent statements that convey linguistic understanding. The example pointed to by the Applicant is this passage at page 543 of the Certified Tribunal Record in which the Applicant was asked to explain how he and his wife were compatible:
The hearing transcript states:
APPELLANT: Like I say, that because sometimes she could – if I want something and she let me to have this, and sometimes if she like to do these things and I will let her to do that thing. So we have the pretty much the same opinion. We don’t really have, like, different point of wills.
The unofficial transcript states:
Interpreter: So um....l could say that um....because sometimes when she could, um .... if l want something and she let me to have this...sometimes if she likes to do this thing and I let her to do that thing. So…..um....we have the pretty much the um……same opinion...we don’t really have different point of views. FFF
FFF refers to a footnote that states: Can not understand the interpreter, and she didn’t quite translate what Mr. Lo said.
[57]
Beginning with the footnote, if Mr. Lo’s daughter could not understand the interpreter it is not clear how she could say that what Mr. Lo said was not quite translated.
[58]
Ignoring the insertion of ‘ums’ and presumed pauses, which add no substance to the meaning of the testimony, the two interpretations convey virtually the same information. Any difference, such as whether the last word is “wills”
or “views”
does not affect the linguistic understanding of the evidence. As the Respondent previously pointed out, neither did it prevent the Applicant from providing a more detailed answer in response.
[59]
The IAD is in the best position to consider whether any “ums”
or “pauses”
by the interpreter impacted the Applicant’s testimony. The member heard the tone, rhythm and cadence of the answers by the Applicant and of the interpretation by the interpreter. The IAD was also able to observe the participants. The only comment made by the member after the answer above, was to note that the answer was very general. To rectify that, the member asked if the Applicant could say specifically how he and his wife were compatible.
[60]
The Applicant’s subsequent answers on compatibility included that he painted a room for his wife and for her neighbours and that when she states an opinion or suggests something he agrees with her (unofficial transcript) or the two of them fit to a compromise (hearing transcript).
[61]
The IAD had no trouble understanding the evidence as translated in the hearing transcript. It was referred to in the Decision together with other examples such as the wife’s evidence of compatibility being that they both liked to drink wine and the Applicant helps her clean the house.
[62]
The member’s conclusion was that there was a lack of sufficient and meaningful evidence from the couple of each other’s likes, dislikes, hobbies, interests, and character that establishes why and how [they] fell in love and married.
[63]
The lack of specifics from the Applicant or his wife when explaining how their relationship developed so quickly was a key finding made by both the visa officer and the IAD. The IAD found the statements given were generalized, without any details or substance behind the generalizations. As such, they were found to be insufficient to establish an understanding of how the relationship developed.
[64]
The Applicant has not persuaded me that the interpretation was inadequate or that it contributed to the IAD finding that his answers were vague. The IAD explains the finding that the answers were vague by saying, amongst other things, that they “were lacking in details”
and they had made “very general statements without any details and substance behind the generalizations”
.
[65]
The Applicant has not shown how the interpretation, regardless of which transcript is used, contributed to the lack of details or substance in the answers. My review of the transcripts indicates that a linguistic understanding was conveyed. The problem was that the Applicant provided no specific details which would be consistent with the level of knowledge that would arise in a genuine marital relationship. At the same time, the Applicant’s counsel did not use their opportunity on re-direct to try to clarify any of the Applicant’s answers with additional detail.
[66]
Throughout his testimony the Applicant failed to provide specific details when pressed for examples. The Applicant has not shown how the interpretation of his testimony was related to him only providing general statements. The conclusion by the IAD, that the Applicant and his wife had not shown, with sufficient evidence, that they are compatible is consistent with that of the visa officer, and is supported by the evidence in the record. It is reasonable.
(3)
The Applicant’s stepson
[67]
One of the lines of questioning by the IAD concerned the Applicant’s stepson. Questions were put to the Applicant concerning both the living arrangements for his stepson in China as well as his current schooling and future schooling should the application be approved and he comes to Canada.
[68]
The Applicant raises the concern that the interpreter caused confusion by being mixed up about who the stepson was living with when he moved in with his wife. In addition, the Applicant says the interpreter’s interpretation that he considered his wife’s 14 year old son to be “half my son”
was imprecise and caused confusion which contributed to the IAD finding his answers were vague.
[69]
Regarding where the stepson was living when the Applicant moved in with his now wife, the Respondent had established that she was working full time so the question was “who was watching her child”
. The Applicant asked “when?”
and the Respondent clarified “when you first moved in with her”.
[70]
The two transcripts each show there was then a continuing dialogue between the Respondent and the Applicant to make sure the time-frame of the question was understood. At one point the Respondent asked the Applicant to focus on the time when his wife was working and the time period of October 2015. At that point, the Applicant answered that the child was with his father. The Respondent confirmed with the Applicant that he meant the child was living with his father. There was linguistic understanding after that exchange.
[71]
In terms of the way the Applicant viewed his wife’s son the Respondent asked what the Applicant’s relationship was like with him. The unofficial transcript indicates the answer was “I treat him as half my son”
and the interpreter said it was “So now I treat him as..like…um…half of my son.”
The member indicated that she did not know what that meant. The Applicant’s response, which he also repeated, was that he takes care of him and treats him like his son.
[72]
That answer provided linguistic clarity. This was confirmed in the Decision when the IAD acknowledged that the Applicant testified that his wife’s son was like his own son. The problem the IAD identified was that the Applicant did not display any meaningful knowledge of the child or take on any significant parental role in his life.
VII.
The IAD did not make an unreasonable finding on the evidence
[73]
The Applicant notes that the IAD found that “there is sufficient evidence establishing communication between the couple”
followed by “however, I find there is a lack of evidence establishing that communication between the appellant and the applicant is reflective of a genuine marriage”
. He submits that these two statements are contradictory. As a result, he says the finding is unreasonable.
[74]
The Respondent says the Applicant is engaging in circular reasoning. He assumes he and his wife have a genuine marriage therefore the communication reflects their marriage. Daily communication can occur for reasons other than a marital relationship. For example, business partners, close friends, parents and children may all communicate daily.
[75]
The Respondent also points out that the WeChat records were not translated. In the Decision the IAD said that because the WeChat records were not translated it was not possible to discern who was chatting or the context of the conversations.
[76]
The IAD reconciled the apparently contradictory statements by saying there was a lack of evidence establishing that the communication reflected a genuine marriage given the concerns that had arisen from the lack of knowledge of each other by the Applicant and his wife, and the insufficiency of evidence establishing the genesis and the development of their relationship.
[77]
The IAD reasoning is based on the evidence. The finding was reasonable.
[78]
If the WeChat records or any part of them had been translated they might have provided the missing evidentiary support for the genuineness of the marriage. Without that evidence, the finding by the IAD was reasonable. The mere fact of communicating every day, without evidence of the nature of the communications, or proof of who was engaged in the communication, and without being translated into English or French, is not proof of anything.
[79]
The Applicant failed to meet his onus to provide sufficient evidence to the IAD that his marriage was genuine.
VIII.
Summary and Conclusion
[80]
The Applicant has failed to show that inadequate interpretation caused the IAD hearing to be conducted in a manner that was procedurally unfair to him. He has not satisfied me that any interpretation errors were serious or non-trivial or they affected his ability to understand and answer questions. He has not shown that any errors were material to the findings by the IAD: Siddiqui at paragraphs 71 and 72.
[81]
When the Applicant and his wife were asked questions such as what attracted them to each other, why they decided to live together so soon after meeting, and how their relationship developed so quickly, their answers were that they were compatible and communicated well with each other, “they could talk about anything”
.
[82]
This kind of vague, non-specific answer permeated the evidence. Both the visa officer and the IAD identified that the testimony was vague and lacking in details. It was too generalized.
[83]
The Applicant blames the interpretation for those findings. The Decision sets out the specific reasons relied upon by the IAD and the visa officer: the Applicant and his wife made only very general statements. For example they were happy, could communicate and were compatible. When pressed, neither the Applicant nor his wife were able to provide details of what they spoke about or what interests they shared.
[84]
The Applicant argued that this inadequate interpretation case was not like other cases where an error just “jumps out”
of the Decision. His overwhelming concern was his belief that the various references by the IAD in the Decision to his evidence being vague undermined his testimony. He urges that the Decision be set aside not because his answers were vague, or not, but because faulty and incomplete interpretation of his evidence caused the perception that he was confused and lacked precision. This then resulted in the findings that his evidence was vague.
[85]
I understand that argument as well as counsel’s submissions that it was the cumulative effect of the poor interpretation, not individual instances, which tainted the hearing to the point that it was procedurally unfair.
[86]
As I have set out in these reasons, I am unable to agree that any interpretation errors were material or that they prevented the Applicant from having a linguistic understanding of the hearing or his ability to express himself. The interpretation at the hearing was not perfect but it was adequate.
[87]
The Applicant contributed to the difficulties experienced by the interpreter. The transcripts show that at several times during the hearing the IAD and the interpreter each had to caution the Applicant and remind him: (1) not to interrupt whoever was speaking; (2) wait for a question to be completed before answering and (3) use short sentences, with pauses between them.
[88]
The Decision was based on the Applicant’s answers. When an answer was not clear or was not detailed, either the Respondent or the IAD persisted with questions to clarify the answer or obtain more detail. By that process, any uncertainty or interpretation error that might have left a wrong impression was corrected. The Applicant’s failure to provide sufficient detail cannot be traced back to the quality of the interpretation at the hearing.
[89]
Notwithstanding the able and clear arguments of counsel for the Applicant, I am unable to conclude that the IAD hearing was procedurally unfair to the Applicant or that an unreasonable finding was made about the genuineness of his marriage.
[90]
For all the foregoing reasons, this application is dismissed, without costs.
[91]
Neither party proposed a serious question of general importance for certification nor does one exist on these facts.
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