Upadhaya v. Canada (Minister of Citizenship and Immigration), 2003 FCT 622

Date: 20030521

Docket: IMM-382-02

Citation: 2003 FCT 622

Montreal, Quebec, this 21^st day of May, 2003

PRESENT: THE HONOURABLE MADAM JUSTICE GAUTHIER

BETWEEN:

                                                              PABITRA UPADHAYA

                                                                                                                                                       Applicant

                                                                              - and -

                                                  THE MINISTER OF CITIZENSHIP

                                                              AND IMMIGRATION

                                                                                                                                                   Respondent

                                               REASONS FOR ORDER AND ORDER

[1]                 Mr. Upadhaya seeks judicial review of the decision of the Refugee Division of the Immigration and Refugee Board (the Board) dated January 15, 2002, which held that he was not a Convention refugee.

[2]                 Mr. Upadhaya is a 40 year old citizen of Nepal. His application is based on his alleged persecution by the Maoists by reason of his political opinion. The particular facts put forth by Mr. Upadhaya can be briefly summarized as follows:

·          On November 7, 1999, the Maoists came to the school where he taught in the village of RamKot to demand that he join them or give them 35% of his salary. He refused and was told that his family would pay a price for this denial.

·          On November 16, 1999, his father received a letter advising him of a People's Court judgment declaring that Mr. Upadhaya should hand over his land and other valuables to the Maoists within 3 days. Mr. Upadhaya immediately sought the help of the village police; they did nothing.

·          On November 19, 1999, a group (between 35-45) of Maoists raided Mr. Upadhaya's house, tied up his entire family (his parents, his wife and his son) and demanded the keys to the safe in the house.

·          His wife who had those keys refused to release them; she was raped and killed. The house was put on fire and Mr. Upadhaya was left unconscious. Later that day, a neighbour took him to his house. Mr. Upadhaya did not know where his son and parents were.

·          He left the next day for Kathmandu. He proceeded by foot and by truck. Upon his arrival, he immediately made arrangements to leave for Canada.

[3]                 The hearing before the Board went over three sessions, in part because of problems of interpretation.

[4]                 In its decision, the Board concluded that the claimant was not a Convention refugee because he is not credible and because "it has not been demonstrated by credible evidence that the Maoists persecuted him, raped and killed his wife as alleged and that he would be at risk of persecution if he returned to Nepal".

Issues

[5]                 Mr. Upadhaya submits firstly that the Board failed to provide a fair hearing due to the poor interpretation at the first session. He further argues that the Board based its decision on erroneous findings and refused to properly consider some of the evidence before it.

Analysis

[6]                 The applicable standard of review was recently described in the decision of the Federal Court of Appeal in Harb v. Canada (M.C.I.) (2003) F.C.A. 108, (QL) at para. 14:

In so far as these are findings of fact, they can only be reviewed if they are erroneous and made in a perverse or capricious manner or without regard for the material before the Refugee Division (this standard of review is laid down in s. 18.1(4)(d) of the Federal Court Act, and is defined in other jurisdictions by the phrase "patently unreasonable"). These findings, in so far as they apply the law to the facts of the case, can only be reviewed if they are unreasonable. In so far as they interpret the meaning of the exclusion clause, the findings can be reviewed if they are erroneous. (On the standard of review, see Shrestha v. The Minister of Citizenship and Immigration, 2002 FCT 886, Lemieux J. at paras. 10, 11 and 12.)

[7]                 Mr. Upadhaya submits that the interpretation given at the first session was substandard and interfered with his ability to present his testimony in a fair manner.

[8]                 An analysis of the quality of interpretation (partial or spot verification) was performed by the interpretation service of the Board after the first session. It confirmed that there had been difficulties with the translation from Nepalese into English. But this was recognized by the Board who decided to continue the proceeding with a different interpreter via video conference.

[9]                 In R. v. Tran , [1994] 2 S.C.R. 951, Lamer C.J., as he then was, stated at 987 and 978 that:

...It is important to keep in mind that interpretation in an inherently human endeavour which often takes place in less than ideal circumstances. Therefore, it would not be realistic or sensible to require even a constitutionally guarantee standard of interpretation to be one of perfection...

...Ultimately, the purpose of the right to interpreter assistance is to create a level and fair playing field, not to provide some individuals with more rights than others.

[10]            The analysis in Tran, supra, was held to apply to a proceeding before the Board by the Federal Court of Appeal in Mohammadian v. Canada (Minister of Citizenship and Immigration), [2001] 4 F.C. 85, [2001] F.C.J. No. 916 (QL),

[11]            The Court finds that by providing improved interpretation assistance for the second and third sessions and by allowing counsel to revisit some of the issues addressed in the first session, the Board ensured that the requirement for a fair hearing under the Canadian Charter of Rights and Freedoms, Schedule B, Part I to the Canada Act 1982 (U.K.) 1982, c. 11, (the Charter) were met.

[12]            However, having conceded that there were problems with the interpretation during the first session, the Board had to be careful how it treated the evidence given at that session.

[13]            In Tran, supra, the Supreme Court of Canada said at para. 60: "The courts have cautioned that interpreted evidence should not be examined microscopically for inconsistencies. The benefit of the doubt should be given to the witness." This warning was intended to apply to properly interpreted evidence not evidence that has been tainted by inadequate or faulty interpretation for it would indeed be unfair to use such tainted evidence to find inconsistency in the testimony of a witness. Tainted evidence should simply be put aside.

[14]            This is exactly what the Board did not do in this case.

[15]            In its analysis of the evidence, the very first point raised by the Board is that:

...At the last sitting, under the guise of redirect questions, counsel revisited this issue as well as several others. The claimant gave details about committees of different levels in the various components of his political party.... The generalities offered originally by the claimant appear to be an avoidance of the questions for which the claimant had no clear answers;.... The details on the NPD given by the claimant when his counsel revisited the issue would have been far more persuasive had they been given when the claimant was asked about political activities at the first sitting. Because of the claimant's originally vague and general testimony and the contrast with the several details he offered at the last sitting when his counsel revisited the issue, the panel finds little to affirm to the claimant's credibility. When the claimant, therefore, alleges that the Maoists targeted him especially because of his political activities, his credibility is certainly put into question.

[16]            The respondent argues that there is no evidence that the quality of the interpretation had anything to do with the finding that the testimony of Mr. Upadhaya was vague and general in the first session.

[17]            The Court notes that the report on the quality of the interpretation reviewed only 15 minutes of transcript (i.e. it is described as a random review of 5 minutes at 3 separate locations on the tape) found that the quality and completeness of the translation from English to Nepalese was good whereas it was lacking from Nepalese to English. Mr. Upadhaya gave the example of a lengthy passage in Nepalese which was simply translated as "yes" in English. The Court finds that in the circumstances, the faulty interpretation was relevant to the findings of the Board and that, in any event, Mr. Upadhaya should benefit from any doubt in that respect.

[18]            Finally, the Court notes that the Board did not find any real contradictions between the testimony of the two sessions but simply that the testimony was more detailed in the second one. The Board also gave a close scrutiny to the testimony down to assessing the potential implication use of the plural or singular first pronoun without considering the potential effect of the interpretation on the applicant's testimony. This repeated use of the tainted evidence constitutes a reviewable error.

[19]            Considering the above conclusion, the Court does not find it necessary to review all of the arguments raised by Mr. Upadhaya with respect to the other reasons included in the Board's decision.

[20]            However, it is important to note again that although the Board is entitled to disregard or give no probative value to the documentary evidence produced by an applicant, it must state its reason for doing so, when the document corroborates the applicant's claim on an important point. (Cepada-Guticare v. Canada (M.C.I.) 1998 F.C.J. No. 1425 (QL).) Obviously, those reasons must not be patently unreasonable.

[21]            Probably the most significant documentary evidence presented by Mr. Upadhaya were copies of an article from the Sadhana Weekly published in both Engligh and Nepalese. This article entitled "Maoist guerillas kill 10 in Rolpa and Ramkot" refers to a Maoist guerilla attack on a police post that killed nine policemen. It gives the name of those policemen and refers to what they call a similar incident two days before where the Maoist guerillas raped and killed Kalpana Upadhaya (the wife of Mr. Upadhaya).

[22]            The Board does refer to the article in the Sadhana Weekly stating that they confronted the applicant with the list of publications in Nepal that they had obtained through the internet. The list refers to a newspaper called the Sadhana Monthly. The claimant explained that there are over 400 weeklies in Nepal and they are not all listed on the internet. The Board found:

The panel accepts that all newspapers are not listed on the internet but Sadhana is. It is significant that the story concerning the claimant did not appear in the evidently more important issues of the newspaper, those listed on the internet. His story should have been a major story; yet it appears in the copies of a minor newspaper provided for the hearing, but it is not corroborated in any of the other more known and more reliable newspapers of Nepal. The newspapers adduced list an Editor/Publisher only with a registration number. The panel, therefore, having considered the claimant's lack of credibility, does not assign any probative value to the claimant's copies of the Sadhana, whether it be the Nepalese or the English version.

                                                                                                                                                                                                   (My emphasis)                                      

[23]            The Court finds that the reasons given for putting aside this evidence are patently unreasonable. There was absolutely no evidence that the "Sadhana Monthly" found on the internet was indeed the same newspaper as the "Sadhana Weekly" the originals of which were produced to the Court. The Board cannot simply assume because of the similarities in the name that they were one and the same. Also, it appears that the Board did not consider that in fact the story was corroborated in a third document found at page 173 of the Certified Record and entitled "Newsflash".

[24]            The two reviewable errors referred to above are sufficiently serious and central to Mr. Upadhaya's claim to viciate the decision of the Board. Therefore this application for judicial review is granted.

[25]            During the hearing, Mr. Upadhaya submitted the following question for certification.

Is the admission into evidence of a document protected under the Privacy Act (i.e. the application for permanent residence) lawful in the absence of consent and in the absence of any weighing of the public interest of the Minister of Citizenship and Immigration before providing such a document to the Refugee Board?

[26]            In Liyanagamage v. Canada (M.C.I.), [1994] 176 N.R. 4 (F.C.A.), the Federal Court of Appeal clearly indicated that in order to be certified, a question must not only transcend the interest of the immediate party to the litigation but it must also be determinative of the appeal. Given the decision of the Court in the present matter, it would not be so. I will not certify this question.

                                                                            ORDER

           THIS COURT ORDERS that:

1.          The motion for judicial review is granted.

2.         The matter is sent back to the Board for redetermination by a differently constituted panel.

3.         No question of general interest is certified.

                                                                                                                                   "Johanne Gauthier"                    

                                                                                                                                                               Judge                                

                                                       FEDERAL COURT OF CANADA

                                                                    TRIAL DIVISION

                                NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                           IMM-382-02

STYLE OF CAUSE:                                           Pabitra Upadhaya v. MCI

PLACE OF HEARING:                                     Montreal, Quebec

DATE OF HEARING:                                       February 18, 2003

REASONS FOR ORDER AND ORDER:        GAUTHIER J.

DATED                                                                May 21, 2003

APPEARANCES:

Me Sarah Piven                                                    FOR APPLICANT

Me Guy M. Lamb                                                FOR RESPONDENT

SOLICITORS OF RECORD:

Me Sarah Piven                                                    FOR APPLICANT

Montreal, Quebec

Morris Rosenberg                                                 FOR RESPONDENT

Deputy Attorney General of Canada

Montreal, Quebec

                                                                 FEDERAL COURT OF CANADA

                                                                              TRIAL DIVISION

Date: 20030521

Docket: IMM-382-02

BETWEEN:

                                                                           PABITRA UPADHAYA

                                                                                                                                                                                 Applicant

                                                                                           - and -

                                                               THE MINISTER OF CITIZENSHIP

                                                                           AND IMMIGRATION

                                                                                                                                                                             Respondent

                                                            REASONS FOR ORDER AND ORDER