Date: 20101119
Docket: IMM-2300-10
Citation: 2010
FC 1161
Ottawa, Ontario, November 19, 2010
PRESENT: The Honourable Mr. Justice Lemieux
BETWEEN:
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RESHAM SINGH
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Applicant
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and
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THE MINISTER OF CITIZENSHIP AND IMMIGRATION
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
I. Introduction
and standard of review
[1]
Resham
Singh is a citizen of India born in the Punjab and a
baptized Sikh. He raises two grounds in his challenge to the April 9, 2010 decision
of the Refugee Protection Division (the tribunal) who determined he was
neither a Convention Refugee nor a person in need of protection on account of
his fear at the hands of the police in the Punjab who suspect him of supporting
Sikh extremists and Kashmiri militants as a result of two March 2007
visits at his home by an acquaintance, a member of the Khalistan Commando Force,
accompanied by two other persons, members of the Laskare Tobia, whom he was
forced to provide food.
[2]
The two
grounds of challenge are:
a.
The
tribunal breached a principle of natural justice or procedural fairness when it
refused to grant his counsel’s motion for a de novo hearing made at the
start of the tribunal’s second session on October 13, 2009, arguing Mr.
Singh did not understand the interpreter at the first session held on August
14, 2009 and there was a manifest conflict between his client and the
interpreter. The standard of review in respect of this ground is correctness.
b.
The
tribunal erred when it dismissed Mr. Singh’s claim on the merits finding he had
a viable Internal Flight Alternative (IFA) in New Delhi. The standard of review for this finding
is reasonableness it being a mixed question of fact and law. Since his
challenge here is to the tribunal’s findings of fact regarding the
availability of an IFA and police practices in India a high degree of deference is owned the
decision-maker. See Canada (MCI) v. Khosa, 2009 SCC 12, [2009] S.C.J.
No. 12 at paras. 3, 46 and 63. In short, section 18.1(4)(b) of the Federal
Courts Act provides legislative guidance to the tribunal’s fact finding.
The tribunal’s IFA finding must stand unless it is demonstrated by the
applicant it was reached in a perverse or capricious manner or without regard
to the evidence before it. Since the tribunal made no adverse credibility
finding against Mr. Singh, his story must be accepted as true.
II. The
Interpretation question
[3]
Both
counsel agree the question of the quality of the interpretation is governed by
the Federal Court of Appeal’s decision in Mohammadian v. Canada (MCI), 2001
FCA 191, [2001] F.C.J. No. 916, applying the Supreme Court of Canada’s decision
in R. v. Tran, [1994] 2 S.C.R. 951. In my view, the principles
enunciated in Mohammadian may be briefly summarized as follows:
a.
The
interpretation must be precise, continuous, competent, impartial and
contemporaneous.
b.
No proof
of actual prejudice is required as a condition of obtaining relief.
c.
The right
is to adequate translation not perfect translation. The fundamental value is linguistic
understanding.
d.
Waiver of
the right results if an objection to the quality of the translation is not
raised by a claimant at the first opportunity in those cases where it is
reasonable to expect that a complaint be made.
e.
It is a
question of fact in each case whether it is reasonable to expect that a
complaint be made about the inadequacy of interpretation.
f.
If the
interpreter is having difficulty speaking an applicant’s language and being
understood by him is a matter which should be raised at the earliest opportunity.
[4]
In its
reasons, the tribunal found:
a.
The
hearing on August 14, 2009 was adjourned because there was insufficient time to
complete hearing the evidence, not because of any interpretation problem.
b.
When she
adjourned the hearing the presiding member “indicated that I would request a
different Punjabi interpreter for the second sitting due to an apparent
personality conflict between the claimant and the interpreter, which surfaced at
the conclusion of the first sitting”.
c.
At the
beginning of the second sitting on October 13, 2009, counsel for the Applicant
made his application for a de novo hearing on the basis Mr. Singh had
not been able to understand the interpreter at the first hearing.
d.
Since his
motion was not made until all the parties were already assembled for the second
sitting, the tribunal proceeded hearing the balance of the evidence that day
with the new interpreter.
e.
However,
she deferred making a decision on the application “in order to secure an IRB
audit of the interpretation quality of the first sitting, allowing, time for
counsel to provide submissions on the audit results”.
f.
After
reviewing the proceeding of the first sitting, the results of the
interpretation audit, the Applicant’s comments, the Tribunal Officer’s comments,
the submissions regarding interpretation made in the course of the hearing and
the written submissions, the tribunal refused Mr. Singh’s application for a de
novo hearing.
[5]
The
tribunal dismissed the de novo hearing application on two grounds:
a.
The member
determined the application had not been made in a timely manner in that the
Applicant did not express his concerns at the first available opportunity (the
procedural ground);
b.
On the
merits of the issue relating to the quality of the interpretation, the tribunal
determined the Applicant “was served by interpretation that fulfilled the
appropriate standards of quality” (the substantive ground).
[6]
In support
of the procedural ground, the tribunal took into account the following
elements:
a.
During the
first hour of the first sitting “the claimant occasionally answered questions
in a confusing manner, and at one point he said-apparently to the interpreter-“you
don’t understand Punjabi””.
b.
His counsel
also told the tribunal he understood Punjabi. Counsel intervened at three
points in the first hour of testimony to clarify specific Punjabi wording.
c.
Appreciating
what transpired during the first hour, at the first break, the tribunal spoke
to Counsel for the Applicant asking if he had any concerns about the
interpretation. Counsel replied the interpreter “may have had a slightly
different dialect, as the claimant was from a rural area of the Punjab”.
d.
Counsel
agreed to speak to Mr. Singh during the break and ensure that the claimant
would indicate to the presiding member if he had any trouble understanding the
interpreter. Counsel did not request a new interpreter or express any concerns
about its quality either during that mid-hearing conference or after he and the
claimant returned from the break.
e.
She
disagreed with Counsel’s statement in his written submissions that “it was
pointed out many times during the hearing of this claim that the claimant did
not understand the interpreter”. The tribunal said her review of the
proceedings did not indicate this to be the case. The tribunal noted, however,
in several instances his Counsel “encouraged the claimant to ask for clarification
if he did not understand a word”. She also noted the claimant made some
comments directly to the interpreter, adding:
[…] The claimant seemed to be disparaging
the interpreter, and on one occasion stated that she spoke Hindi and not Punjabi.
However, neither he nor counsel stated any concerns directly to me. Having
already invited counsel to indicate if there were interpretation concerns, and
considering that counsel is experienced in refugee hearings, I do not find that
comments that are not directed to the member constitute a contention
about the inadequacy of interpretation.
[Emphasis added]
f.
Towards
the end of the first sitting the interpreter expressed frustration when the
claimant did not pause to enable her to interpret portions of his longer
answers. The tribunal wrote:
[…] Both the claimant and the interpreter
appeared to feel irritation with the interpretation relationship. The
claimant had to be reminded not to speak directly to the interpreter as a party
in the hearing, and the interpreter had to be reminded to use patience in
dealing with the claimant’s outburst against her. When I proposed that I
request a different interpreter for the second sitting, I indicated that
the reason was not a reflection on the adequacy of the interpretation but
only because of the apparent personality conflict between the claimant
and the interpreter. Counsel agreed with the proposal to request a
different interpreter and he did not make any comments about the quality
of interpretation.
[Emphasis added]
[7]
In support
of her finding on the substantive ground, the tribunal said it had carefully
reviewed the proceeding of the hearing. She acknowledged “there were occasions”
in which the claimant did not seem to reply to questions with a logical answer.
She found there were only isolated instances Mr. Singh was unable to understand
the interpreter in respect of certain words. She was of the view his inability
to understand certain words was not because of the inadequacy of
interpretation but because of Mr. Singh’s limited vocabulary and his reluctance
to say he could not understand. On this point, she concluded that the parties
in the hearing were more than willing to explain terminology in simpler terms,
if asked.
[8]
On other
occasions, the tribunal found Mr. Singh’s confusing answers were likely due
either to evasiveness or to a tendency to listen to the English question and
provide an answer, rather than to listen to the interpreter and then answering.
This tendency was demonstrated also in the second sitting where no
interpretation concerns were expressed.
[9]
The
tribunal referred to an additional element –the audit review. That review,
according to the decision-maker, indicates:
[…] that the interpretation was
accurate and complete, that the fluency of delivery was good, without
hesitation, the diction was clear, and the interpreter demonstrated
impartiality. When the grammar was not completely correct or the
interpreter used unusual vocabulary, the meaning was clear and not altered in
any way.
[Emphasis added]
[10]
As to the
quality of the audit, the tribunal observed that Counsel for Mr. Singh
expressed concerns about the certificate of interpretation analysis, a point
which she dismissed, noting in addition, Counsel had not submitted or asked
time to submit his own independent audit of the hearing although he was well
aware that recordings of the hearings were available to him.
[11]
The tribunal
also dismissed Counsel’s submission the audit was completely silent on whether
the interpretation was precise, impartial, competent, continuous and contemporary.
The tribunal found the certification notes certified the interpretation “was
accurate and the meaning is clear and not altered in any way” demonstrated the
interpretation was precise, competent and complete and specifically certified
it was impartial. In the tribunal’s mind, the continuous and contemporary standards
were not questioned by Counsel.
[12]
Finally,
the tribunal commented on counsel’s submission the interpreter was rude to Mr.
Singh. She noted Mr. Singh during the second sitting had indicated to the
tribunal that the interpreter at the first sitting had “looked at him in a
frowning manner, was rude, and he did not like the way she asked questions”.
[13]
She found
Mr. Singh’s view was based on the fact he attributed to the interpreter comments
or suggestions made by the tribunal, the Tribunal Officer and Counsel. The
tribunal conceded there were occasions where the interpreter expressed her own
surprise at an answer the claimant gave or let her annoyance show through when
Mr. Singh made a comment directly at her. The tribunal said this behaviour was
inappropriate and when it occurred the tribunal intervened and asked the
interpreter to continue to provide her interpretation in a professional manner.
In the tribunal’s view “the isolated instances of rudeness or the fraying of
nerves at the end of the first session” did not lead to any impediment to Mr.
Singh being able to provide his evidence.
[14]
She
concluded the principles of national justice were upheld for Mr. Singh and that
“the interpretation at the hearing achieved the high standard expected”.
IV. The IFA question
[15]
The
tribunal noted the IFA test had two prongs, namely, that it must be satisfied
on the balance of probabilities (1) there is no serious possibility of Mr.
Singh being persecuted or, on the balance of probabilities, in danger of
torture or subjected to a risk to life or cruel and unusual treatment or
punishment in the IFA area and (2) conditions in New Delhi are such that it
would not be unreasonable, in all of the circumstances, including those
particular to the claimant, for him to seek refuge there.
[16]
On the
first prong, the tribunal was satisfied Mr. Singh could find safety in New
Delhi since she had no reason to believe that either the police forces or the
militants would seek or harm him in Delhi.
[17]
Mr.
Singh’s fear sprung from his belief his name was on a list of people wanted by
the police, a list which he believes is circulated throughout all of India. The tribunal found if he was on such a
list, the documentary evidence shows he would have been caught at the airport
when he left the country.
[18]
Mr. Singh
also stated he would be found in New Delhi
because the names and locations of all residences are maintained by
authorities. The tribunal found the documentary evidence contradicted Mr. Singh’s
concerns. There is no system of registration of citizens and local police
forces have neither the resources nor the language abilities to perform
background checks on people arriving from other parts of India.
[19]
Finally on
this point, the tribunal noted the documentary evidence showed that police
beyond the local level may search for and arrest high profile militants, Mr.
Singh did not have such a profile i.e. active involvement in militant
activities. It relied on recent 2009 documentary evidence stating internal
relocation is feasible in India where the Applicant’s fear is
of local police and the individual is not of interest to the central authorities.
That was the Applicant’s situation in the tribunal’s view.
[20]
As to his
fear of the militants, the tribunal ruled it was not well founded objectively,
again relying on recent documentary evidence to the effect there had been a
significant decline in Sikh militancy in recent years and there is no evidence
of persecution of Sikh’s by non state agents. It noted Mr. Singh had provided
no evidence the militants were trying to find him after the two occasions he
supplied them with food.
[21]
On the
second prong of the IFA test, again consulting the documentary evidence, which
showed New Delhi had ½ million of Sikh population with all of the opportunities
this suggests in terms of practicing religion, securing affordable housing, speaking
Punjabi and having access to employment and health care.
[22]
The
tribunal concluded a viable IFA was fatal to his section 97 claim.
V. Conclusions
[23]
For the
reasons that follow this judicial review application must be dismissed.
A. The Interpretation issue
[24]
I have
carefully read the transcript of the proceedings and have considered
submissions from both Counsel. Counsel for the Applicant criticized the
interpreter’s behaviour in a number of ways but could not, in my view, substantiate
his assertion that faulty interpretation caused his client not to understand
the questions put to him or inadequately conveyed his answers into English.
[25]
A fair reading
of the transcript supports the tribunal’s conclusions both on the procedural
ground and more important on the substantive ground.
[26]
After a
certain amount of time had elapsed during the first sitting, the tribunal
specifically put to Counsel the fact that he (the Counsel) understood Punjabi
and asked him if his client understood the questions and the answers and were
they appropriately interpreted. Counsel stated the interpreter spoke “a very
sophisticated Punjabi [… whose] dialect is a little bit different. Sometimes he
has difficulty I think” (see transcript p. 285) and that is why he told his
client if he had any problems to understand the interpreter he should not
hesitate to alert the Presiding member. The transcript reveals that the
Applicant very rarely asked for clarification.
[27]
The
transcript demonstrates there were other causes rather than interpretation with
the manner the Applicant testified and which everyone made comments about during
the hearing.
[28]
The
Applicant was a very difficult witness:
a.
He did not
answer questions directly;
b.
He gave
long answers;
c.
He did not
listen to the questions put to him;
d.
On some
occasions he did not understand the meaning of certain words;
e.
He would speak
to the interpreter directly; and
f.
He would keep
on talking when the interpreter was interpreting his answers.
[29]
The
tribunal, the Tribunal Officer and his own Counsel repeatedly cautioned him
about his manner of testifying.
[30]
All of
these factors made life difficult for the interpreter, who on occasion,
displayed frustration and was reminded to be patient and professional by the
tribunal. As the tribunal put it, the clash between the interpreter and the claimant
was one of personality which did not impair the claimant’s linguistic
understanding of the proceeding. I share that view from my reading of the
transcript.
B. The IFA
[31]
Counsel
for the Applicant agreed that the tribunal had correctly expressed the two part
test for a viable IFA. However, he argues the tribunal erred in its application
of that test. He argued the documentary evidence did not substantiate the
tribunal’s conclusions on important findings such as the effectiveness of
wanted people on the list being able to clear security at the airport in New Delhi by the use of a false
passport or through the payment of a bribe. He further argued the tribunal
ignored the evidence or misinterpret it on the issue of whether the Applicant
was a person with a high or low profile. He submitted his client was suspected
of being a militant and such was objectively sufficient to ground his fear.
[32]
I agree
with Counsel for the Respondent the documentary evidence relied on by the
Applicant is dated going back to 1998 or 2006 and the material relied upon by
the tribunal was 2009 material particularly on the point of Sikhs being safe in
Delhi. I also agree with Counsel for the Respondent there is no evidence on the
record which contradicted the Tribunal’s view the Applicant had a low profile
as far as the police in India were concerned and would not
be a person on interest to them.
[33]
In
conclusion, the Tribunal’s finding on the IFA was reasonably supported on the most
recent evidence.
JUDGMENT
THIS COURT’S JUDGMENT IS that this judicial review
application is dismissed. No certified question was proposed.
“François
Lemieux”
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