Date: 19981126
Docket: IMM-5440-97
BETWEEN:
AKBAR MOKHTARI ABADI
REIHANEH MIRZABOLAND
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
REED J.
[1] The applicants seek to have a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board set aside on the ground that : (1) the Board did not ensure that the applicants were provided with adequate translation services; (2) the applicants were denied natural justice because their counsel abandoned them and neglected to make written submissions on their behalf; (3) the Board did not properly assess the female applicant's written evidence (her Personal Information Form); (4) the Board took into account information available as a result of its expertise without giving the applicants notice as required by subsection 68(5) of the Immigration Act.
[2] It is necessary, first, to set out the facts relevant to the first two grounds. The hearing of the applicants' claims was held on June 26, 1997. At the beginning of the hearing the Board asked the interpreter whether he had spoken with the applicants and whether he understood them. He responded affirmatively. The Board asked the applicants whether they understood the interpreter. They answered affirmatively. At the end of the hearing counsel for the applicants asked that an audit be done of the quality of the translation that had been provided. Written submissions on the applicants' claim were to be filed by counsel within two weeks after the audit was completed.
[3] On July 29, 1997 the audit was completed. It disclosed no significant difficulties with the translation. The audit was sent to counsel on August 1, 1997 and she was told she could have until August 18, 1997 to provide written submissions on her clients' behalf. On August 27, 1997, counsel wrote to the Board referring to a telephone conversation her assistant had had with the Board the previous week, advising that counsel had been on holidays, and requesting an extension of time to September 5, 1997 for the filing of the written submissions. That request was granted. On September 9, 1997, counsel wrote again stating that the audit had not identified some of the passages that counsel thought, from her notes, must clearly have been mistranslations because the syntax was tortured, and the translation hesitant and imprecise. She asked for a second audit and committed herself to filing the written submissions concerning the applicants' claim within two days after the second audit was completed.
[4] The Board granted the request for a further extension of time for written submissions, to await a second audit, but stated that the costs of the second audit were to be borne by the applicants. Counsel for the applicants wrote to the Board on October 8, 1997, stating that the second audit would be available by October 10, 1997. Counsel provided neither the results of a second audit nor written submissions to the Board. On October 20, 1997, the Board telephoned counsel to remind her that written submissions were still outstanding. None were provided. On November 18, 1997, the Board rendered its decision.
[5] In its decision the Board referred to the request for an audit. It noted that the first audit had consisted of an analysis of three randomly selected fifteen minute segments of the tape of the hearing. It noted that the Board had not seen the need for a second audit but left it up to counsel to arrange a second audit and to forward any additional information obtained therefrom together with her written submissions on behalf of the applicants. The Board noted that since neither a report of a second audit nor written submissions had been received, it had proceeded to make its decision on the basis of the evidence that it had before it.
[6] The Board, in assessing the interpretation, noted that it was "at times awkward with evidence of distortions of syntax in the English language in several places." It noted that this had been observed and discussed by counsel and members of the Board in a mid-hearing conference on the day of the hearing. The Board stated, however, that in its opinion the audit "did not reveal that the interpretation was faulty or incorrect insofar as it concerned the substance of the male claimant's responses." The Board stated that it was satisfied that the interpretation was "intelligible and reliable; notwithstanding its periodic awkwardness" and that "it did not cause the panel to misunderstand the details of the claimants' testimony and the tenor of their story."
[7] Counsel for the applicants argues that the Board applied the wrong test, that it is required to apply the test set out in Tran v. The Queen (1994), 92 C.C.C. (3d) 218 (S.C.C.), and that that test requires a translation that has the characteristics of "continuity, precision, impartiality, competency and contemporaneousness" (page 250). That decision stated that the question should always be whether there is a possibility that the concerned individual misunderstood a part of the proceedings by virtue of his or her difficulty with the language.
[8] I am prepared to assume for present purposes that the Tran test is applicable to Board hearings. It cannot be concluded, however, that it was not met in the present case. The evidence does not establish that the Board failed to adequately evaluate the translation. There was no evidence placed before the Board attesting to any misunderstanding by the applicants, nor was there any evidence of actual mistranslation, except for some awkward English syntax, that may or may not have reflected awkwardness in the applicants' original expression in their own language. No evidence was put before the Board (other than that relating to the first audit) analysing the quality of the translation. No evidence was filed with this Court analysing the translation in order to support an allegation that the translation did not meet the Tran test. The Board cannot in the absence of evidence from the applicants, or an expert on their behalf attesting to mistranslations, speculate that such occurred merely because of an awkwardness of syntax or even seemingly nonsensical statement by the translator. As noted, the awkwardness of syntax may be a result of what the witness actually said, as may nonsensical statements. The first ground on which the decision is challenged is not supported by the evidence.
[9] With respect to the alleged failure of natural justice arising because written submissions were never submitted by counsel, I recognize that there have been occasions when judges of this Court have found counsel's behaviour to be so egregious that they have been forced to find that the client suffered a breach of natural justice. The non-filing of written submissions, however, does not fall into that category. If the claimants have been badly served by counsel, their recourse is to the Law Society. There is no reason, for example, to conclude that the failure to file written submissions was an abandonment of the applicants by counsel, rather than simply a joint decision by counsel and her clients not to exert further efforts in what they decided was a meritless claim. For the Court to allow applicants to have a CRDD decision set aside because their counsel neglected to file written submissions on their behalf would open the door to rampant abuse. The situation in which counsel's action will be characterized as leading to a breach of natural justice for the client, in my view is rare indeed.
[10] I turn then to the argument that the Board did not adequately assess the female applicant's evidence because it did not explicitly analyse her written evidence set out in her Personal Information Form. The female applicant arrived in Canada before her husband. She made a claim for refugee status and in her P.I.F. set out the experiences that underpin both her and her husband's claim. The husband relied on her P.I.F. as the basis for his claim. He gave most of the oral evidence at the Board hearing; she said comparatively little. The Board set out detailed reasons why it did not believe the male applicant. Implicit in that analysis was a rejection of the female applicant's story as set out in her P.I.F. It would be nit-picking for me to set aside the Board's decision because of a failure to expressly refer to her P.I.F. One has to read the Board's decision in the context in which it is written.
[11] With respect to the last argument, the Board in writing its reasons referred to letters from the President of the "Iranian Monarchist Council of Canada and Front Line: The Constitutionalist Movement of Iran in Eastern Canada." The Board gave no probative value to these letters, stating that they were form letters containing no specifics of the applicants' alleged activities. It concluded that the letters were obtained for no other purpose than to bolster the applicants' refugee claim. In a footnote the Board commented "the presiding Member has seen at least a dozen of such letters from the same source in previous hearings, indeed in precisely the same manner." I think counsel is correct in saying that if the Board is going to use expertise it has developed as a result of hearing a large number of similar cases, as information relevant to deciding the applicants' case, the applicants should be given notice and an opportunity to respond to that information. In the overall context of this case, however, this is not a significant enough defect to justify setting aside the Board's decision.
[12] Counsel for the applicants asked that the following question be certified:
| |
Are the Tran criteria as to the standard of interpretation applicable at hearings of refugee claims at the Refugee Division? |
|
That question would not be determinative of this application, however, since the disposition of the application, insofar as it relates to the quality of the translation, is based on the lack of evidence to support an argument that the translation was of such poor quality as to raise the possibility that the applicants misunderstood some part of the proceeding. An argument that the wrong principle was applied when evaluating the translation is not available on the evidence.
[13] For the reasons given the application is dismissed.
"B. Reed"
Judge
TORONTO, ONTARIO
November 26, 1998
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-5440-97
| STYLE OF CAUSE: AKBAR MOKHTARI ABADI |
REIHANEH MIRZABOLAND
and -
| THE MINISTER OF CITIZENSHIP AND |
IMMIGRATION
DATE OF HEARING: WEDNESDAY, NOVEMBER 25, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: REED, J.
DATED: THURSDAY, NOVEMBER 26, 1998
APPEARANCES: Mr. Micheal Crane
For the Applicants
Mr. Kevin Lunney
For the Respondent
SOLICITORS OF RECORD: Micheal Crane
Barrister & Solicitor
200 - 166 Pearl Street
Toronto, Ontario
M5H 1L3
For the Applicants
Morris Rosenberg
Deputy Attorney General
of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 19981126
Docket: IMM-5440-97
Between:
REIHANEH MIRZABOLAND
Applicant
- and -
| THE MINISTER OF CITIZENSHIP AND IMMIGRATION |
Respondent
REASONS FOR ORDER
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