Date: 20071219
Docket: IMM-623-07
Citation: 2007 FC 1337
Ottawa, Ontario, December
19, 2007
PRESENT: The Honourable Mr. Justice Mosley
BETWEEN:
YUN
QING LIN
Applicant
and
THE
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant failed to file a personal information form in support of her claim
for refugee protection within the prescribed 28 days. She was provided with an
opportunity to present an explanation for her default at a hearing convened for
that purpose. A member of the Refugee Protection Division found that her explanation
was not persuasive. The
applicant seeks to have the decision overturned on the grounds that she was
denied competent interpretation and fairness in the conduct of the hearing and
that the Board member’s reasons disclose errors of fact and law.
[2]
Ms. Lin arrived on
November 3, 2005 from China via Malaysia and the United Kingdom and made her claim at Pearson airport. She had been previously
refused a visa to enter Canada and was travelling on a false passport. At
the port of entry she was provided with the personal information form (“PIF”) and
was told that it was to be completed and returned by December 1, 2005. The port
interview was conducted with the aid of a Mandarin interpreter and there is no
issue as to the applicant’s knowledge of the PIF deadline.
[3]
The
applicant had limited funds when she arrived in Canada, and spent
time trying to find inexpensive accommodation and work in order to afford to
pay for legal assistance in pursuing her claim. The deadline for returning the
PIF passed before she was able to do so. An abandonment hearing was scheduled for December 14th,
but notices of that hearing, sent to her last known address, were returned as
she had moved.
[4]
The applicant then
obtained the assistance of a lawyer despite her lack of funds, and through him
learned that an abandonment hearing had been rescheduled for December 19, 2005.
The applicant and her counsel attended the abandonment hearing with her
completed PIF. A Board certified Mandarin interpreter was present to assist the
applicant with her testimony.
[5]
The
hearing opened with counsel’s submissions summarizing the applicant’s
explanation for defaulting on the deadline. The member then proceeded to ask
questions of the applicant. At the close, counsel presented further
submissions. The transcript of the hearing shows that there was some confusion in
translation of the member’s questions and the applicant’s answers.
[6]
In a decision issued on
February 28, 2006 the Board member found that Ms. Lin was aware of the deadline
for filling the PIF and that she did not provide any persuasive explanation for
the delay. The member further found that Ms Lin did not demonstrate the
requisite diligence in prosecuting her claim. Notice of abandonment was
thereafter issued.
ISSUES:
1.
Did the member deny the
applicant procedural fairness?
2.
Was the applicant
provided competent interpretation?
3.
Did the member err in
declaring the claim abandoned?
STATUTORY
PROVISIONS
Refugee
Protection Division Rules, SOR/2002-228
|
58. (1) A claim may be declared abandoned, without giving the
claimant an opportunity to explain why the claim should not be declared
abandoned, if
(a) the
Division has not received the claimant's contact information and their
Personal Information Form within 28 days after the claimant received the
form; and
(b) the
Minister and the claimant's counsel, if any, do not have the claimant's
contact information.
(2) In every
other case, the Division must give the claimant an opportunity to explain why
the claim should not be declared abandoned. The Division must give this
opportunity
(a)
immediately, if the claimant is present at the hearing and the Division
considers that it is fair to do so; or
(b) in any
other case, by way of a special hearing after notifying the claimant in
writing.
(3) The
Division must consider, in deciding if the claim should be declared
abandoned, the explanations given by the claimant at the hearing and any
other relevant information, including the fact that the claimant is ready to
start or continue the proceedings.
(4) If the
Division decides not to declare the claim abandoned, it must start or
continue the proceedings without delay.
|
58. (1) La
Section peut prononcer le désistement d'une demande d'asile sans donner au
demandeur d'asile la possibilité d'expliquer pourquoi le désistement ne
devrait pas être prononcé si, à la fois :
a) elle n'a reçu ni les coordonnées, ni
le formulaire sur les renseignements personnels du demandeur d'asile dans les
vingt-huit jours suivant la date à laquelle ce dernier a reçu le formulaire;
b) ni le ministre, ni le conseil du
demandeur d'asile, le cas échéant, ne connaissent ces coordonnées.
(2) Dans tout autre cas, la Section donne
au demandeur d'asile la possibilité d'expliquer pourquoi le désistement ne
devrait pas être prononcé. Elle lui donne cette possibilité :
a) sur-le-champ, dans le cas où il est
présent à l'audience et où la Section juge qu'il est équitable de le faire;
b) dans le cas contraire, au cours d'une
audience spéciale dont la Section l'a avisé par écrit.
(3) Pour décider si elle prononce le
désistement, la Section prend en considération les explications données par
le demandeur d'asile à l'audience et tout autre élément pertinent, notamment
le fait que le demandeur d'asile est prêt à commencer ou à poursuivre
l'affaire.
(4) Si la Section décide de ne pas
prononcer le désistement, elle commence ou poursuit l'affaire sans délai.
|
ARGUMENT
& ANALYSIS
Standard
of Review:
[7]
There
is no dispute between the parties that the standard for review of an
abandonment decision is reasonableness. My colleague Justice
François J. Lemieux reached that conclusion after having conducted a pragmatic
and functional analysis in the context of an abandonment decision made under
the former legislation: Ahamad v. Canada (Minister of
Citizenship and Immigration), [2000] 3 F.C. 109, 184 F.T.R. 283. As
determined in Anjun v. Canada (Minister of
Citizenship and Immigration), 2004
FC 496,
[2000] F.C.J. No. 617 and Xu v. Canada (Minister of
Citizenship and Immigration), 2006 FC 718, [2006] F.C.J. No.915, that
analysis and conclusion remains valid under the present legislation.
[8]
In
applying the reasonableness standard, as stated by Justice Johanne Gauthier in Xu,
above, at paragraph 32, a Court cannot simply substitute its own appreciation
of the evidence but must determine whether it is supported by reasons that can
withstand a “somewhat probing examination”.
[9]
Questions
of procedural fairness are reviewed against a standard of correctness. As
stated in Sketchley v. Canada (Attorney General), 2005 FCA 404, [2005] F.C.J. No. 2056, at paragraph 53, the Court
is required to isolate any act or omission relevant to procedural fairness. The decision-maker has either complied with the
content of the duty of fairness appropriate for the particular circumstances or
has breached his duty.
[10]
The question of the adequacy of translation is
one of procedural fairness and no deference is due the tribunal: Saravia v. Canada (Minister of Citizenship and
Immigration), 2005 FC 1296, [2005] F.C.J. No. 1575
at paragraph 3.
Was the applicant denied procedural fairness?
[11]
The
applicant submits that the member failed to listen appropriately to the
applicant, her counsel or the interpreter. Bias or a reasonable apprehension of
bias is not alleged but the applicant states that the member appears to have created
a climate of annoyance and impatience. Many of the questions posed to the
applicant were not relevant to the issue of abandonment, in the applicant’s
view, and the conduct of the member amounted to ‘gross interference in the
orderly presentation of the case’: Reginald v. Canada (Minister of
Citizenship and Immigration), 2002 FCT 568, [2002] F.C.J. No. 741.
[12]
The
respondent contends that these complaints are not made out by a careful review
of the hearing transcript. The transcript and the member’s reasons disclose
that the member accurately understood the applicant’s explanations for her
default. An argument based upon the applicant’s subjective view of the member’s
state of mind during a hearing provides no basis for legal analysis. The member
said nothing inappropriate during the hearing but was seeking direct answers to
questions to which the applicant gave meandering non-responsive testimony.
[13]
The
member at one point during the hearing referred to the Port of Entry notes
which counsel for the applicant had not received at that point. The applicant
submits that she was denied a fair hearing in that the member did not then
provide copies of the notes to her counsel or adjourn the hearing to allow him
to obtain them. The respondent’s position is that the member was not required
to stop the hearing to enable counsel to obtain documentation counsel should
already have requested. Such accommodation may be provided, but there is no
requirement to do so.
[14]
I
agree with the respondent that the transcript does not disclose the use of inappropriate
language or an intemperate attitude on the part of the member. There were
difficulties in obtaining the applicant’s evidence at the outset of the
proceedings but this did not result in the denial of a fair hearing. The member’s questions appear from the
transcript to have been related to her attempts to clarify contradictory or
unclear statements by the applicant. I am satisfied that as the hearing
progressed, the applicant was fully able to provide her explanation for
why she had not filed the PIF on time. Her testimony was consistent with the
summary provided by her counsel at the outset and with his closing submissions.
[15]
As
for the relevance of the member’s questions, some of them do not appear on
their face to relate to the issue of abandonment but the member was entitled to
explore the applicant’s credibility to determine whether her explanation was to
be believed. To that end, the member asked questions about the applicant’s
passports, the route that she had travelled and her accommodation in Toronto. It was in
these areas that most of the confusion arose, and the applicant’s answers
seemed non-responsive and inconsistent.
[16]
In
Reginald, above, cited by the applicant, Justice Frederick E. Gibson
dealt with the review of a refugee determination decision in which the Board
members repeatedly intervened in counsel’s efforts to elicit his client’s testimony
and chastised both counsel and the applicant. The Court found that the members
exhibited an “unwarranted degree of impatience” and “an almost palpable disdain
for counsel’s presentation” which was also evidenced in the tribunal’s reasons
for its decision. In my view, there was nothing comparable to these concerns in
the member’s conduct of the hearing in this case or in her reasons.
[17]
I
also agree with the respondent’s submission that while it may have been
courteous to have done so, procedural fairness did not require that the member
provide a copy of the Port of Entry notes to counsel at the hearing or adjourn
it to allow him to obtain them. The notes were referenced briefly in relation
to the fact that the applicant had acknowledged having an aunt in the US. If they
were material to the issues at the hearing, counsel should have requested them
in advance. Regardless, it does not appear that the applicant suffered any
prejudice as a result.
Was
the applicant provided competent interpretation?
[18]
The
applicant submits that the services provided to Ms. Lin were insufficient to
provide “continuous, precise, competent, impartial and contemporaneous”
interpretation as required for a fair hearing under section 14 of the Charter
of Rights and Freedoms, Part I of the Constitution
Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11: R. v.
Tran, [1994] 2 S.C.R. 951, 117 D.L.R. (4th) 7, applied to refugee
determination hearings in Mohammadian v. Canada (Minister of
Citizenship and Immigration), 2001 FCA 191, [2001] F.C.J. No. 916.
[19]
In Tran, a case
dealing with the rights of a criminal accused to adequate interpretation, the
Supreme Court held that interpretation must be held to a high standard, but not
to a standard of perfection given that it is a human endeavour often undertaken
in less than ideal circumstances. In Mohammadian,
the
Court of Appeal affirmed that the applications judge had been correct to apply
the Tran principles to refugee determination proceedings.
[20]
The
respondent’s position is that the problems with translation related to facts
which were not in issue and which formed no part of the basis for decision.
[21]
Chief Justice Antonio Lamer
stressed at paragraph 74 of Tran that if a breach of the Charter right is established, actual prejudice
need not be demonstrated. I take that to mean in this context that the
applicant need not show that the result would have been different had she
received more effective interpretation.
[22]
In Saravia, above,
the hearing before the Refugee Protection Division had been conducted by
videoconference with the panel and interpreter in one city, the claimant and
her counsel in another. There was considerable difficulty with sound quality. A
second interpreter was brought in who struggled with several words going to the
heart of the claim. Justice Eleanor R. Dawson found that there were omissions
of substance in the interpretation of the claimant’s testimony. It could not be
said that the interpretation had been “continuous, precise and competent” and the
quality and fairness of the hearing was very much in doubt.
[23]
That is not the
conclusion that I have reached from reading the transcript in this matter,
despite the very able argument of counsel for the applicant.
[24]
At
one point, the transcript shows that counsel for the applicant, who speaks both
English and Mandarin, interjected stating “I think there is a little bit of
difference between your question and her translation.” The difference related
to when the applicant had obtained her valid passport from the Chinese
government. While it might have taken a few different questions to get the
applicant’s story clearly before the member, I conclude that the minor
translation issues did not result in any omission of the substance of the
applicant’s explanation. The applicant was, therefore, provided with sufficient
translation for the purpose of the hearing.
Did the member
err in declaring the claim abandoned?
[25]
The
final contention of the applicant is that the member’s decision was
unreasonable. As I noted at the outset, the standard of my review of that
decision is patent unreasonableness. I can, therefore, not overturn the
decision unless it was perverse or made without regard to the evidence. It is
not sufficient that I see the reasonableness of the applicant’s submission.
[26]
In
the instant case, I do not find the member’s decision perverse, and the
applicant has failed to show how it was made without due regard to the evidence
she presented for the hearing. The decision was not patently unreasonable, and
must stand. No serious questions of general importance were submitted and none
will be certified.
JUDGMENT
IT IS THE
JUDGMENT OF THIS COURT that the
application is dismissed. No questions are certified.
“Richard
G. Mosley”
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