Adibi v. Canada (Minister of Citizenship and Immigration), docket IMM-4906-97

Date: 19980625

Docket: IMM-4906-97

OTTAWA, ONTARIO, JUNE 25, 1998.

PRESENT:    THE HONOURABLE MADAME JUSTICE TREMBLAY-LAMER

BETWEEN:

                                              ABDOL MOHAMMAD ADIBI,

                                                                                                                             Applicant,

                                                                  - and -

                      THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

                                                                                                                        Respondent.

                                                                 ORDER

The application for judicial review is granted. The decision of the Board is set aside and the matter is referred back for rehearing by a differently constituted panel.

                                                                                                 "Danièle Tremblay-Lamer"

JUDGE

Date: 19980625

Docket: IMM-4906-97

BETWEEN:

                            ABDOL MOHAMMAD ADIBI,

Applicant,

                                                - and -

    THE MINISTER OF CITIZENSHIP AND IMMIGRATION,

Respondent.

                                REASONS FOR ORDER

TREMBLAY-LAMER J.:

This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("Board") wherein the Applicant was determined not to be a Convention refugee.

Prior to fleeing his home country of Iran, the Applicant worked at the National Steel Company assembling machinery used in the manufacturing of steel products for the construction industry. He and four other workers were allegedly selected for this job because of their history of problems with the government authorities. He explained that the plant managers conspired to install defective machinery and used their workers' troubled past as a means to force them to collaborate. The workers would also serve as scapegoats if and when the plan was discovered.    

To avoid being accused of sabotage, the workers decided to write a letter to the President of Iran explaining the situation. The Applicant attempted to give the President the letter on his visit to the plant but was stopped by security officers. Eventually, the production on the assembly line was halted as a result of the defects in the machinery and the workers were accused of sabotage. On June 1, 1996, the authorities came to the factory to arrest them. He managed to escape.

The Applicant submits that the Board breached the rules of natural justice by failing to address the issue of the interpreter's competence after it was raised by his counsel. He contends that it was the Tribunal's duty to hold an inquiry.

Although the competency of an interpreter takes on a very important dimension when dealing with questions of credibility,^[1] I am not convinced that there was a breach of natural justice in the present case.    As I previously stated in Varaich v. Minister of Employment and Immigration:^[2]

[T]he controlling element with respect to the nature and content of the inquiry is the requirement of fairness.

In Xie, MacGuigan, J., states clearly that it is the responsibility of the adjudicator to ensure that the interpreter is competent. Being the master of his or her proceeding, the adjudicator may call a witness if it is necessary to determine the competence of the interpreter and ensure a fair hearing, but this is not obligatory.

In the case at bar, counsel for the Applicant sought a resumption of the hearing which was granted by the Board. At the resumption, the evidence submitted indicated one error in the translation. Counsel for the Applicant requested that the panel members disregard the portion of the testimony where the error was made and where the Applicant appeared evasive.

I am satisfied that the Tribunal acted fairly in the present circumstances. It conducted an inquiry into the adequacy of the interpretation and it did not base its finding of credibility on the Applicant's evasiveness in giving his testimony in regard of the names of his colleagues. It is obvious that it did not rely on the impugned error in rejecting the claim. Thus, the Applicant did not establish that he was prejudiced by this error in the translation.^[3]

However, the Board did commit a reviewable error of law in ignoring relevant corroborative evidence which was specific to the Applicant's claim and which clearly supported his position. Indeed, no mention was made in the reasons for decision of the arrest warrant. While it is not necessary for the Board to mention all the evidence that was before it, it should have acknowledged this document which corroborated the Applicant's story and directly contradicts its findings.^[4]

In the circumstances, the application for judicial review is granted. The decision of the Board is set aside and the matter is referred back for rehearing by a differently constituted panel.

Counsel recommended certification of the following question:

Once an issue of interpretation has been raised by the tribunal, despite any specific remedy sought by counsel is the tribunal under an obligation to conduct an inquiry into the competence of the interpreter?

Considering that the Board did conduct an inquiry, I see no need to certify the question.

                                                             "Danièle Tremblay-Lamer"

JUDGE

OTTAWA, ONTARIO

June 25, 1998.

FEDERAL COURT OF CANADA TRIAL DIVISION

NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD

COURT FILE NO.:                      IMM-4906-97

STYLE OF CAUSE:                   ABDOL MOHAMMAD ADIBI v. MCI

PLACE OF HEARING:              Toronto, Ontario

DATE OF HEARING:                 June 22, 1998

REASONS FOR ORDER OF The Honourable Madame Justice Tremblay-Lamer

DATED:                                       June 25, 1998

APPEARANCES:

Ms. Wendy Lack                                                                           FOR THE APPLICANT

Ms. Lori Hendriks                                                                      FOR THE RESPONDENT

SOLICITORS ON THE RECORD:

Ms. Wendy Lack                                                                    FOR THE APPLICANT Toronto, Ontario

Mr. George Thomson                                                            FOR THE RESPONDENT Deputy Attorney General of Canada