Vergunov v. Canada (Minister of Citizenship and Immigration), docket IMM-4186-98

     DATE: 19990421

     Docket: IMM-4186-98

OTTAWA, ONTARIO, THIS 21^st DAY OF APRIL 1999

PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER

BETWEEN:

     VITALI VERGUNOV

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER AND ORDER

[1]      This is an application by Vitali Gergunov, for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board which held that the Applicant was not a Convention Refugee within the meaning of s.2(1) of the Immigration Act R.S.C. 1985 c. I-2. (as amended)

[2]      The Applicant is a citizen of Georgia. He bases his claim for refugee status upon the persecution which he felt as an ethnic Russian in Georgia in the post Soviet Union era.. The Notice of Application advances only one ground for judicial review, namely:

That the tribunal erred in law in that it misconstrued the definition of Convention refugee in that the Tribunal misapplied the burden of proof, and misconstrued the meaning of persecution;

[3]      At the hearing of the Application, the only ground argued was that the hearing of the Applicant"s claim before the Convention Refugee Determination Division (CCRD) was tainted by the inadequacy of the interpreter and that the Applicant"s right to a meaningful judicial review was prejudiced by the absence of a complete transcript of the proceedings. While the hearing itself extended over a period of a day and a half, the only tape recording of the hearing which could be located accounts for only 90 minutes of the hearing. The Respondent was prepared to deal with the matter on those grounds.

[4]      The Applicant speaks Russian and required the services of an interpreter at the CRDD hearing. The Applicant"s concerns about the quality of the interpreting at his hearing are set out in the Affidavit of the Applicant, at paragraphs 29 to 43, reproduced below:

29.      I had the impression from my hearing that my answers were not being properly translated by the interpreter. I speak a little [E]nglish but not enough to fully understand the interpreter.

30.      I told my new lawyer that I thought there might have been some things that were not expressed clearly by the interpreter and he had the tapes of my hearing reviewed by another interpreter.

31.      We could only hear clearly what was being said on the tapes for part of the hearing.

32.      The entire first part of my hearing was not taped by the Immigration and Refugee Board so I don"t know if there are any interpretation errors on that part of the tape.

33.      There were times when I gave a detailed answer that it seemed as if the interpreter was giving a much shorter answer.

34.      There were other times when I gave a short answer and interpreter appeared to be saying much more than I said.

35.      I was frustrated during my hearing because it appeared that the tribunal members did not understand my answers.

36.      When I reviewed the questions and answers that we could hear on the tape with another interpreter. It became obvious to me that the interpreter at my refugee claim did not properly interpret for me.

37.      There are a number of examples contained in my new interpreters affidavit where the interpreter actually said things that I did not say.

38.      There are statements by myself and my lawyer where the interpreter did not completely translate the entire question or answer.

39.      There are a number of examples where the interpreter did not translate my answers correctly.

40.      I do not believe that I had a fair hearing because my interpreter did not translate properly.

41.      I believe that if the hearing was recorded properly and I received a full record of my hearing, I would find many more errors in interpretation.

42.      My lawyer at the hearing did not speak Russian, neither did the Refugee Hearing Officer or the two tribunal members, so it was impossible for them to detect that the interpreter was not translating correctly.

43.      I believe that if the interpretation had been correct at my hearing, there is a reasonable chance that I would have been determined to be a Convention refugee.

    

[1]      Some of the deficiencies in the interpreter"s performance are set out in the Affidavit of Elena Konovalova who reviewed the tape recording of the hearing:

10.      I was informed by the Applicant that the hearing of his refugee claim took approximately 10 hours. It went from 9 am on May 6th until 12 noon. I started again at 130 pm and went until approximately 5 pm. Then the next day it started at 10 am and went until between 1-2 pm without a lunch break. However, there is less than 90 minutes of tape from this hearing and part of that tape cannot be made out. It is clear that the tapes are missing both the beginning and the end of the hearing.

11.      In the section of tape where I could decipher the conversation, I found that there were several sections where the interpreter did not interpret the expression that the Applicant said correctly.

12.      I found that there were several times that the interpreter did not fully interpret everything that the applicant or his counsel stated.

13.      I found that there were several times that the interpreter added words and phrases that were not the words or phrases that the applicant or the person speaking asked.

17.      When the applicant was questioned about the death of his father, he stated, "when I called to Tbilisi, I was trying to get through for several days in a row, and nobody picked up the phone, so I didn"t understand what was happening and called his neighbour." The interpreter added the lines, "I knew his telephone number, neighbour of my father." These words were not stated by the applicant.

18.      Later in the same answer of the applicant the interpreter again added a phrase that the applicant did not say. The applicant was describing the conversation he had with his father"s neighbour and they had the following interchange. Applicant: "Did you try to bring him down to the hospital?" Neighbour: "Well yeah, we tried, but they never took him in." Applicant:: "How come?" Neighbour: "Well, you"re Russian." The interpreter added the additional phrase: "so don"t ask these silly questions."

21.      There were some answers by the applicant that the Interpreter appeared to be totally lost. For example: the applicant answered a question in the following manner: "They can call you names or if your walking down the street they can say, Hey Russak, what did you forget here? I had a lot of conflicts on the ship, on my ship, I was hit on the head, but truthfully before that, Always Russian, you Russian..All in All, they can say such things. Later when I was attacked by thos[e] three pig faces downstairs, they were saying such things, only cursing that, "we will fuck you up the ass. We will do this, we will do that, we will kill you." What the interpreter said was: "The range of things that might happen to me as Russian is quite prone on the one hand they can just call you names could be just filthy Russian, Russian you know F in Russian and then there could be a threat of physical beating or the procedure is called lowering when they force you into oral intercourse, they could , I lost part of my teeth because of the fight which started because I was Russian, I was while on the ship I was trying to help a friend of mine who was an Armenian to get out of the fight with the Georgians and because I was Russian and I was helping an Armenian I got into fight as well, and I was thrown back and damaged my back and I had to visit medical professional here in Canada because of that so it is a vast range from the physical, from the threat of physical hurt to just verbal abuse."

28.      When the applicant was answering questions about his visit to the police to complain about the members of the Fast Reaction Detachment taking his apartment, the interpreter failed to interpret what I am told is a crucial piece of evidence. The interpreter omitted the phrase, "I saw he person who worked in the FRD coming from the office of the Chief of Police."

30.      While answering questions about his beating at the police. The Interpreter failed to translate the statement: "I was beaten with a baton on my heels and my kidneys."

31.      During another answer about his bearing the Interpreter said: "in his, in my understanding to hurt is to let blood." The Interpreter added the following to the applicants testimony: "no blood was let right? And if that"s the case I wasn"t hurt."

32.      The applicant was asked the question by his lawyer: Did you have injury, did you need medical attention?" The interpreter stated: "Even at requirement, I wouldn"t be given it if I asked for that they would give me a dose of medicine." What the applicant actually said: "From who the police? You can"t demand something from them, but if you do, they will "write our another dose of medicine" for you " This is actually slang for " they will beat you again" ".

[2]      The significance of the errors in translation is best appreciated by reference to the evidence presented to the CCRD. The Applicant"s evidence as recorded by the CCRD is as follows:

The claimant, born in 1963, in Tbilisi, Georgia, alleges a well founded fear of persecution on the basis of his Russian ethnicity. He alleges that Georgians have never liked ethnic Russians, and that the hostility has escalated after independence after 1991. He alleges that as an ethnic Russian, he was harassed and insulted on the streets, and that this could lead to physical mistreatment and the Georgians could force him into anal intercourse. He alleges that since independence, the police have been badgering him, repeatedly asking to see his passport, asking him to empty his pockets, and so on. He described several interactions with the police, including, in December 1996, when he was with a Russian girlfriend in the park, and the Georgian police shone a flashlight in his eyes and insulted his ethnicity.

These incidents of harassment culminated in August 1996, when the apartment he had inherited from his Grandmother, was taken over by a Georgian man who was a member of the military organization OBR, who worked at the White House in Georgia, and was involved in taking care of the personal protection of the President of Georgia. The claimant complained to the police, who said they would help him by verifying the facts , and taking care of the incident. Shortly afterward, the police advised the claimant that they had checked the facts and that the man who had occupied his apartment had a legal right to be there. The claimant alleges that the police made derogatory comments about his nationality. He said his treatment by the police was friendly with a touch of sarcasm. When the police failed to help him, he went to the prosecutor"s office. The prosecutor called the police. He advised the claimant to return to the police and indicated that he would be given help. The claimant returned to the police and the police advised him to return again the next day. That night, he stayed at his girlfriend"s apartment, where he was visited by three men, one of whom was the new occupant of his apartment. They started to beat him. The police approached, and his attackers told the police that he was an alcoholic who was harassing them. The claimant was arrested and spent 15 days in jail. While in jail, the claimant was twice beaten by the police, although not seriously. When he was released from jail, his girlfriend advised him that someone had broken the windows of her apartment and threatened that if they found the claimant they would kill him. The claimant then made arrangements to come to Canada, where he claimed refugee status. In addition, the claimant alleges that his sister was beaten on the street two times several years ago. As well, he alleges that his father died and because of his Russian ethnicity, never received appropriate attention at the hospital, which led to his death.

[3]      Counsel for the Applicant admitted at the hearing that there are no specific findings of fact in the CCRD"s decision which the Applicant says are obviously wrong due to incorrect translation. The substance of the Applicant"s complaint on this point is that interpreter"s errors may have and likely did influence the CCRD in its assessment of the Applicant"s credibility and that as a result he has been denied natural justice.

[4]      In Basyony v. Minister of Employment and Immigration, [1994] F.C.J. 427, Reed J. dealt with an Application for judicial review which raised the issue of inadequate interpretation. The Applicant filed an Affidavit showing a number of errors committed by the interpreter. After reviewing the errors in context, Reed J. held that:

"When those alleged errors are reviewed however, it is clear that even if they were errors, the total impact on the hearing and on the decision made by the C.C.R.D. was not significant. The cumulative result of the errors would not justify a quashing of the C.C.R.D. decision and ordering a new hearing. ...

One is mindful of the fact that translation is not an exact science. There is always room for differences in nuance between what is said in one language and its translation into another. This can occur without any malicious intent on the part of the translator. Such inexactitudes are to be expected. ..."

[5]      When one examines the CCRD"s findings, one notes the following:

1)      the Applicant alleged that his sister was beaten up on the street because she was Russian. The CCRD found that, on the basis of the documentary evidence before them and the lack of detail provided by the Applicant, they could not conclude that the fact of the beating had been established.

2)      the Applicant suggested that his father, a Russian military officer, was refused treatment at the hospital when he was critically ill and died as a result. The Panel concluded on the basis of the sparseness of the Applicant"s evidence that this fact was not proved.

3)      the Applicant testified that the incident which resulted in his leaving Georgia was the confiscation of his apartment by a member of the security establishment, the failure of the police to intercede on his behalf so as to protect him from reprisals, including death threats from the confiscator, and the active collusion of the police in persecuting him by jailing and beating him. The CCRD once again had difficulty giving credit to this recital due to the vagueness and lack of detail of the Applicant"s evidence.

4)      the CCRD then made a series of alternative findings, all of which were against the Applicant"s position. If the confiscation of the apartment was taken as proved, the Panel found that it lacked a nexus with the "Convention grounds" , the grounds on which a determination of refugee status is to be made. If "Convention grounds" were to be taken as established, the loss of an apartment did not amount to persecution and did not give rise to a well founded fear of persecution.

[6]      Some of the errors pointed out by Ms. Konovalova could scarcely have an effect on these findings. On the other hand, some of the omissions may have changed the complexion of the evidence. For example, if the CCRD had heard the evidence with respect to the Applicant being beaten with a baton, it may not have concluded that his beatings by the police were not serious. An accumulation of similar instances may well have had an effect upon the CCRD"s assessment of the Applicant"s evidence. On the other hand, even if the CCRD accepted the Applicant"s version of events in its entirety, the findings with respect to convention grounds would be fatal to the Applicant"s claim. On balance, I cannot say that errors which have been identified would have affected the ultimate result.

[7]      Counsel for the Respondent argues that I should take into account the fact that the complaint about translation was not made at the hearing. It is clear that the Applicant knew, at the time of the hearing, that he was uncomfortable with the translation. There is an appearance of hedging one"s bets when such a complaint is not made until after an unfavourable result has been received.

[8]      Whatever the merits of that argument, it is overtaken by the absence of a record of the proceedings before the CCRD.

[9]      It is clear from Canadian Union of Public Employees v Montreal, [1997] 1 S.C.R. 793 that the absence of a complete record is not per se a sufficient ground for sending a matter back for a new hearing. In coming to that conclusion, the Supreme Court of Canada implicitly overruled Tung v. Minister of Employment and Immigration (1991), 124 N.R. 388 (Fed. C.A.) which held that the absence of a record in and of itself deprived a litigant of a fair review or appeal. The Court held adopted the reasoning in two Federal Court of Appeal cases decided after Tung¹ which held that the effect of a gap in the record was to be determined on the basis of the availability of other means of putting the relevant information before the Court. In this case, there is no other means of putting the necessary information before the Court since the very matter in issue is the words spoken by the participants in the hearing.

[10]      To summarize:

(a)      a partial recording of the proceedings before the CCRD discloses errors in interpretation, some of which could have affected the CCRD"s appreciation of the evidence;

(b)      because there is no recording of the balance of the evidence, it is not possible to determine if there were other errors of interpretation;

(c)      it is therefore not possible to determine if, or to what extent, the view taken of the evidence, and of the Applicant"s credibility, were affected by either errors in interpretation.

(d)      while the errors which are known would not justify setting aside the CCRD decision, it is not possible to know if other errors coloured the CCRD"s view of the Applicant in such a way so as to affect the ultimate result.

In these circumstances, the absence of a complete recording deprives the Applicant of the opportunity for a meaningful review.

[11]      As a result, the decision of the CCRD must be set aside and the matter remitted to the Immigration and Refugee Board to be dealt with according to law before a differently constituted panel. Having been given the opportunity to suggest a question of general importance, the parties have indicated that, in their view, none arises here.

     "J.D. Denis Pelletier"

     Judge

__________________

¹      (Kandiah v. Minister of Employment and Immigration (1992), 141 N.R. 232 and Rheaume v. Canada (1992), 153 N.R. 270.