Date: 20120525
Docket: IMM-8462-11
Citation: 2012 FC 636
Ottawa, Ontario, May 25, 2012
PRESENT: The Honourable Madam
Justice Snider
BETWEEN:
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WILFRED JULIAN
CHRISTOPHER FRANCIS (A.K.A. WILFRED JULIAN
CRISTOPHER FRANCIS)
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Applicant
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and
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MINISTER OF
CITIZENSHIP
AND IMMIGRATION
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
I. Introduction
[1]
The Applicant is a Christian Tamil and citizen of Sri Lanka. In February 2010 he arrived in Canada, making a claim for refugee protection on January 11,
2011. He claims to risk persecution at the hands of the Sri Lankan government
and its agents because of his escape from a camp where he was detained
following the end of the war in 2009. In a decision dated October 25,
2011, a panel of the Immigration and Refugee Board, Refugee Protection Division
(Board) determined that he was not a Convention refugee pursuant to s. 96 of
the Immigration and Refugee Protection Act, SC 2001, c 27 [IRPA]
or a person in need of protection pursuant to s. 97 of IRPA. The Board
rejected his claim on the basis of “a lack of credible and trustworthy evidence
on which to find that the [Applicant] ha[d] a well-founded fear of persecution
or that he would be subject personally to a risk to his life or a risk of cruel
and unusual treatment or punishment or a risk of torture if returned to Sri
Lanka.” The Applicant seeks to overturn this decision.
II. Issues
[2]
The key issue raised by the Applicant relates to the
quality of interpretation. The Applicant, who speaks Tamil, was provided with
an interpreter at the hearing. The Applicant submits that, because of the poor
quality of the interpretation, he did not receive a fair hearing. This is a
question of procedural fairness to which a standard of review of correctness
will be applied (see, for example, Sherpa v Canada (Minister of Citizenship and Immigration),
2009 FC 267 at para 21, 344 FTR 30).
III. Affidavit
[3]
In support of his application, the Applicant provided the
affidavit of Mr. Kandiah Navaratnam, an independent translator/interpreter.
Mr. Navaratnam was hired by the Applicant’s
counsel to transcribe
the audio recording of the hearing and audit it for accuracy of interpretation.
Mr. Navaratnam found numerous problems with the translation. He stated that:
The audit revealed
that the errors made in interpreting included:
a) Use
of wrong terminology;
b) Omissions;
c) Embellishments
and additions;
d) Inclusion
of interpreters commentary; and
e) Interpreter’s
directions to the claimant.
IV. Analysis
[4]
The Applicant argues that, given the poor quality of the
translation, his “story” was not understood by the Board. Thus, he asserts, his
right to a fair proceeding was breached and the matter should be returned for
re-hearing.
[5]
It is well established that a claimant for refugee protection
in Canada has the right to
“continuous, precise, competent, impartial and contemporaneous” interpretation
during the course of the refugee hearing before the Board (Mohammadian v Canada (Minister of Citizenship and
Immigration), 2001 FCA 191, [2001] 4 FC 85). This is
a right that arises pursuant to s. 14 of the Canadian Charter of Rights and
Freedoms, Part I of the Constitution Act, 1982, being Schedule B to
the Canada Act 1982 (UK), 1982, c 11 [Charter].
[6]
Translation cannot be expected to be perfect. Simply
asserting that the translation was inadequate may not be sufficient grounds on
which to overturn a decision. An applicant must raise the issue at the earliest
opportunity or risk a conclusion that the right to procedural fairness was not
breached. Moreover, it is not enough to show that there were errors: there will
always be errors. A translation mistake will translate into a procedural
fairness error where an incorrect translation results in a decision or determinative
finding that might have been different had the words been correctly translated.
In Khatun v Canada (Minister of Citizenship and Immigration), 2012 FC
159 at para 51, [2012] FCJ No 169, a case where the Court concluded that the
applicant’s right to a fair hearing had been breached by the poor quality of
translation, Justice Russell described the situation as follows:
The errors in
interpretation went to the very essence of the RPD’s rejection of the
Applicant’s claim. The RPD relied, at least in part, on the translation errors
to support its conclusion that she was not credible. As the main reason the RPD
rejected her claim was its finding that she was not credible, her right to
procedural fairness was breached, so the Decision must be reconsidered.
[7]
I am satisfied that, on the facts of this case, the
Applicant did raise the issue as soon as possible. However, the question of
whether the poor translation resulted in material errors is more problematic
for the Applicant. Do the errors observed by Mr. Navaratnam, go to the very
essence of the rejection? Stated differently, could the decision have been
different if the translation had been correct?
[8]
One potential interpretation difficulty arises from the
Board’s understanding of the word “ongoing”. The Board asked the Applicant why
he continued to remain in Sri Lanka in spite of problems. The Applicant did not, as stated by the Board,
reply that he remained in the face of “ongoing problems”. Rather, the Applicant
used the Tamil word meaning “alternative”. The problem with this submission is
that it appears, from reading the balance of the transcript referenced and the
Board’s reasons, that the Member fully appreciated that the situation in Sri
Lanka was one where there were periods of war and periods of peace. Thus, I am
satisfied that the Board understood this portion of the “story” in spite of a
misinterpretation of the word “alternative”.
[9]
Another area of concern to the Applicant relates to some of
the questioning on the Applicant’s alleged detentions by the Liberation Tigers
of Tamil Eelam (LTTE). In its decision, the Board raises the implausibility of
the Applicant’s claims about his detentions by the LTTE. In particular, while
the Applicant alleges that he was forcibly taken by the LTTE on three
occasions, he always managed to escape the next day. The Applicant points to a
number of interpretation errors in the Board’s questioning of how he escaped.
All of the errors arise with respect to the details surrounding the Applicant’s
escapes from detention. I acknowledge that certain words were interpreted
incorrectly. However, the point remains that the Applicant was able to escape
from the LTTE three times. In both the official version reflected in the
transcript of the hearing and the version produced by Mr. Navaratnam, the
Applicant acknowledges key elements of his escapes; specifically, the Applicant
testified that no one blocked his escape and that no one accompanied him to the
bathroom. The interpretation errors do not change those key facts or detract
from the important finding of the Board that the Applicant had been able to
easily escape from LTTE detention on three occasions, something that seems
quite implausible.
[10]
I have reviewed all of the other interpretation problems
raised by the Applicant and find that none of them raise issues that are
central to the Board’s decision.
[11]
In addition to a lack of credibility with respect to the
subjective fear of the Applicant, the Board also examined whether there was
other credible evidence that might have provided an objective basis for the Applicant’s
claim. Based on a review of the available objective documentary evidence, the
Board concluded that his claim was not well-founded. This aspect of the Board’s
decision was not based on interpretation of the Applicant’s story.
[12]
In sum, the interpretation was flawed. However, the errors
of interpretation were either minor or unrelated to the Board’s key findings.
The errors did not result in a breach of the Applicant’s rights under s. 14 of
the Charter. The application for judicial review will be dismissed.
[13]
Neither party proposed a question for certification.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that:
1.
the application for judicial review is dismissed; and
2.
no question of general importance is certified.
“Judith A. Snider”
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