Date: 20020627
Docket: IMM-4003-01
Neutral citation: 2002 FCT 723
Toronto, Ontario, Thursday, the 27th day of June, 2002
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
YUSUF KAYA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
- [1] This is an application for judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board (the "CRDD"), dated July 24, 2001, wherein the Applicant was determined not to be a Convention refugee.
- [2] The Applicant is a citizen of Turkey who claimed Convention refugee status because of a well-founded fear of persecution based on his ethnicity and religion as an Alevi Kurd, his political opinion as a member of the HADEP political party, and as a member of a particular social group, namely his family which allegedly is also very active in HADEP.
- [3] The CRDD determined that the Applicant was not a Convention refugee because there was no persuasive or trustworthy evidence indicating that the Applicant would face persecution in Turkey on the basis of his political profile or his membership in the family group.
- [4] The Applicant brings this judicial review on numerous grounds. The first issue raised is whether the hearing was in breach of procedural fairness as a result of an incompetent interpreter. In my opinion, this submission has merit and the faulty interpretation led to a material error of fact upon which the CRDD based its credibility finding. In light of the seriousness of this error, I find it unnecessary to address the other issues raised.
- [5] The right to an interpreter is part of the duty of fairness and is a right that also is enshrined in s.14 of the Canadian Charter of Rights and Freedoms, 1982. In Mohammadian v. M.C.I., [2001] F.C.J. No. 916, the Federal Court of Appeal confirmed the right to continuous, precise, competent, impartial contemporaneous interpretation in a hearing before the CRDD. In the present case, the Applicant has provided evidence that this standard was not met.
- [6] In his affidavit in support of this judicial review, the Applicant made the following statements regarding the translation:
During the course of my refugee hearing the interpreter often used many Turkish words intermixed with Kurdish words. I was able to understand what the interpreter was saying to me and I had no idea at the time that the interpreter was making mistakes in both his translation of the questions that were asked of me and my answers. I thought that he was translating correctly. It was only when I spoke with Suleyman Goven who had listened to the tapes that I became aware of the problem.
(Applicant's Record, p.85)
- [7] The affidavit of Suleyman Goven provided specific evidence of the faulty interpretation and translation as follows:
I am fluent in the Kurdish and English languages. I am also fluent in the Turkish language. I have acted as an interpreter for immigration counsel in many Kurdish and Turkish refugee claims.
I have listened to the tapes of the hearing involving the Applicant. The first tape was completely inaudible. I listened to the second tape and confirm that it was audible. From what I can gather from listening to the tapes, the interpreter is not a native Kurdish speaker. His native language would be Turkish. Throughout the hearing, he would speak in Kurdish and intermingle it with Turkish. At no time did he advise the Board that he was switching from Turkish to Kurdish. As a result, it was abundantly clear to me that during the course of the hearing there was a complete breakdown in communication between the Applicant and the interpreter which led to many misunderstandings and led to many misinterpretations.
It is impossible for me to give all of the examples of all the mistakes made by the interpreter during the course of the hearing however I should like to highlight a few.
One of the matters which caused a lot of concern for the Board members was the fact that the Applicant said he was involved in "public relations". Mr. Kaya used Turkish words to describe his activities which was "halka iliskiler". The proper translation for these words would be "dealing with people". It does not mean public relations.
As a result of this, when the Board member asked the interpreter to confirm that the Applicant had used the words "public relations", he confirmed this and further compounded the mistake and made it appear that the applicant was trying to embellish his activities in the eyes of the Board members.
(Applicant's Record, pp.137-8)
- [8] It is clear from this evidence that the Applicant was unaware of the errors and could not know of them until the interpreter's work was audited by a person fluent in all three languages. As a result, the Applicant's failure to object at the time of the hearing cannot be considered to be a waiver of his rights.
- [9] The Respondent does not challenge the accuracy of this translation, but instead submits that these errors are not material. I disagree. One of the key elements of the CRDD's credibility finding was the Applicant's use of the term "public relations" to describe his duties with HADEP. The CRDD found the use of this sophisticated term to be an embellishment and an indication that the Applicant was coached.
- [10] The failure in translation was in breach of the right to the assistance of a qualified interpreter, which in turn led to a material error in fact upon which the CRDD''s negative credibility finding was based. On the evidence provided by the Applicant the decision cannot stand.
ORDER
1. Accordingly, the CRDD's decision is set aside and the matter is referred back for redetermination by a different panel.
"Douglas R. Campbell"
Judge
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-4003-01
STYLE OF CAUSE: YUSUF KAYA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: THURSDAY, JUNE 27, 2002
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER
AND ORDER BY: CAMPBELL J.
DATED: THURSDAY, JUNE 27, 2002
APPEARANCES: Mr. Lorne Waldman
For the Applicant
Ms. Patricia MacPhee
For the Respondent
SOLICITORS OF RECORD: Jackman Waldman & Associates
Barristers & Solicitors
281 Eglinton Avenue East
Toronto, Ontario
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020627
Docket:IMM-4003-01
Between:
YUSUF KAYA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER
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