Date: 20110301
Docket: IMM-1146-10
Citation: 2011
FC 243
Ottawa, Ontario,
March 1, 2011
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
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ZAINAB KAMARA
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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
[1]
This is an application pursuant to subsection 72(1) of the Immigration
and Refugee Protection Act, S.C. 2001, c. 27 (the Act) for judicial review
of a decision of the Immigration Appeal Division of the Immigration and Refugee
Board (the Board), dated February 1, 2010, wherein the Board refused to
overturn a decision by a visa officer denying permanent residence to the
applicant’s husband as a member of the family class.
[2]
The
applicant requests an order quashing the decision of the Board and remitting the
matter back for redetermination by a newly constituted panel.
Background
[3]
Zainab
Kamara (the applicant) was born on December 25, 1983. She is a citizen of Sierra Leone. The
applicant’s first language is Creole. She understands some spoken English but
cannot read English.
[4]
According
to the applicant, she met Ibrahim Jalloh (Mr. Jalloh) in 1994 in Sierra Leone. She fled Sierra Leone to Guinea due to
warfare while Mr. Jalloh remained in Sierra Lione. The applicant returned to
Sierra Leone only once, six months prior to leaving for Canada. Although
her testimony is somewhat unclear, the applicant asserts that she saw Mr.
Jalloh in person at that time. The applicant became pregnant by another man in Guinea before
coming to Canada. She
ultimately gave birth to her daughter in Canada. In 2001,
the applicant was granted Convention refugee status in Canada. The
applicant had a proxy marriage with Mr. Jalloh in 2004.
[5]
In
2006, Mr. Jalloh applied for permanent residence in Canada under
subsection 12(1) of the Act as the spouse of the applicant. He was interviewed
by a visa officer in Accra, Ghana on March 13, 2008. The visa officer
found that Mr. Jalloh and the applicant did not have a bona fide
relationship and that it was a relationship of convenience for the sole purpose
of gaining status under the Act.
[6]
The
applicant appealed the visa officer’s decision to the Board. A hearing was
scheduled for November 16, 2009 but was adjourned because of an inability to
contact an interpreter.
[7]
On
January 25, 2010, the appeal hearing went ahead. At the hearing, the applicant
was represented by unpaid counsel who was neither a lawyer nor a member of the
Canadian Society for Immigration Consultants.
[8]
A
Creole-English interpreter was provided for the hearing via telephone. The
applicant answered questions posed to her in both Creole and English. She
states in her affidavit that she believed that she had a duty to attempt to
answer in English.
[9]
After
a break, the Board contacted Mr. Jalloh as a witness for the applicant.The
connection with the interpreter was lost after Mr. Jalloh had answered several
questions. The Board tried unsuccessfully to reconnect with the interpreter. The
Board asked the applicant if she wanted to proceed for the questioning of Mr.
Jalloh without an interpreter.
Board’s Decision
[10]
The
Board ultimately concluded that the applicant’s marriage to Mr. Jalloh was not
genuine.
[11]
The
Board found that the applicant was not a credible witness. Her testimony lacked
detail, she was evasive and hesitant. By way of example, the Board referred to
a response given by the applicant when she was asked to specify the date when
she last sent money to Mr. Jalloh. She first stated that it was in 2009 and
then said that it was somewhere between 2006 and 2009. The Board found this
undermined her credibility.
[12]
The
Board found that Mr. Jalloh was effective in his communication in English and
his testimony was more responsive and clearer than the applicant’s.
[13]
The
Board found that the applicant’s evidence suggested that her relationship with
Mr. Jalloh was one that stopped and was re-established after the applicant’s
daughter was born, rather than the on-going relationship that the applicant alleged.
[14]
The
Board found that neither party demonstrated substantial knowledge of the other.
Mr. Jalloh did not know the name of the applicant’s daughter’s school or the
grade she was in. The applicant had not told Mr. Jalloh that she had changed
jobs to a better paying position as a care aide. The Board found that the lack
of sharing coupled with the lack of substantial knowledge of each other and the
applicant’s evasive testimony undermined credibility of the claim of a genuine
marriage.
[15]
The
Board found that when asked why the applicant did not sponsor Mr. Jalloh until
after she had been in Canada for two years, the applicant answered that
it was because she was not financially secure. Mr. Jalloh answered that it was
because he was not financially secure. In addition, the applicant also
testified that she sent Mr. Jalloh $100 to $200 per month. The Board found that
this financial burden would have been lifted if the applicant had sponsored Mr.
Jalloh earlier. The Board found that the explanation for delay was not
consistent between the applicant and Mr. Jalloh and was therefore not credible.
[16]
The
Board also found that the fact that the applicant had not seen Mr. Jalloh in
nine years, even though she was earning sufficient income to visit him in Ghana, undermined
the claim that it was a genuine marriage.
[17]
Based
on the above findings, the Board concluded that the applicant had not proven
that her marriage to Mr. Jalloh was genuine or that it was not entered into
primarily to acquire any status or privilege under the Act.
Issues
[18]
The
following are the issues:
1. What is the
appropriate standard of review?
2. Did the absence of
continuous interpretation breach the duty of fairness owed to the applicant?
Applicant’s Written Submissions
[19]
The
applicant submits that her right to a fair hearing was denied because of the
absence of continuous interpretation. She submits that the standard of review
is correctness.
[20]
The
applicant answered some questions in English and others in Creole. She had
trouble expressing herself in English but submits that the Board allowed her to
proceed in English as she saw fit.
[21]
The
applicant submits that her counsel at the time was not experienced and did not
know she could object to the applicant responding in English.
[22]
The
applicant submits that she did not realize the harm that declining to use the
interpreter would have on the presentation of her case until she received the
reasons for the decision. The effect of not using an interpreter was never
explained to her.
[23]
The
applicant submits that a duty of fairness analysis must consider the choices of
procedures made by the Board. The applicant submits that the Board did not
follow its procedures regarding interpretation set out in the Immigration
Division Guide. The applicant submits that the Board did not determine whether
the applicant had sufficient command of English to allow the hearing to proceed
without an interpreter. Ultimately, the Board must decide whether there should
be interpretation and although the applicant spoke in English voluntarily, it
was the Board’s duty to constantly evaluate whether she required the assistance
of an interpreter.
[24]
The
applicant submits that there was no legally valid waiver of the right to
interpretation because she did not have full knowledge of the rights that
interpretation was enacted to protect and knowledge of the effect of the
waiver.
[25]
The
applicant submits that the hearing should not have continued without
interpretation.
[26]
The
applicant submits that the responses that she and Mr. Jalloh gave were affected
by the lack of interpretation. Because the Board based its decision on these
responses, the decision must be sent back to a newly constituted panel for redetermination.
Respondent’s Written Submissions
[27]
The
respondent submits that there was no breach of the duty of fairness by allowing
the applicant to testify, at times, in English. The applicant testified in
English less than one quarter of the time. In addition, of the portions of the
applicant’s testimony that the Board referred to in its decision, only one was
in English. As such, the facts do not support the assertion that the English
testimony was problematic or was the cause of the Board’s concerns about the
applicant’s lack of credibility and full answers.
[28]
The
respondent submits that the applicant was well aware of her right to the
assistance of an interpreter because the hearing had been previously adjourned
for lack of an interpreter.
[29]
The
respondent submits that the Board put the applicant on notice about the need to
provide full, complete answers. The applicant cannot now submit that she did
not understand the importance of providing complete and detailed answers simply
because she testified in English some of the time.
[30]
The
respondent submits that the applicant was required to raise any concerns about
the language of the proceedings at the first opportunity. The applicant
implicitly waived her right to interpretation because she had the interpreter
available to her and chose not to use it, without any suggestion that there was
a problem with the interpretation. The applicant also expressly waived her
right during her testimony.
[31]
The
respondent submits that the questioning of Mr. Jalloh without an interpreter
was initiated by the applicant’s counsel and then continued with consent of the
applicant’s counsel when the Minister’s counsel began to ask questions of Mr.
Jalloh. In addition, the applicant and her counsel from the hearing aver in
their affidavits that they did not object to continuing without an interpreter
because they wanted to avoid another delay, thus acknowledging that they knew
they could object and chose not to.
[32]
Finally,
the respondent submits that the Board member was aware of and sensitive to
language issues throughout the proceedings. He advised the applicant to wait
for the interpretation to finish before answering to make sure that she fully
understood. He also clarified the applicant’s responses several times to ensure
that she had been understood.
[33]
Based
on these submissions, there was no breach of the duty of fairness, according to
the respondent.
Analysis and Decision
[34]
Issue
1
What is the appropriate
standard of review?
The question
of adequate interpretation raises issues of procedural fairness. The Supreme
Court of Canada has limited the standards of review for administrative
decisions to correctness and reasonableness (see Dunsmuir v. New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at paragraph 45). However, despite the
changes, the Supreme Court left the standard of review for questions of procedural
fairness intact (see Khosa v. Canada (Minister of
Citizenship and Immigration), 2009 SCC 12, [2009] 1 S.C.R. 339
at paragraph 43). As such, the question of whether an applicant’s right to a
fair hearing has been breached remains to be reviewed on the standard of
correctness.
[35]
Issue
2
Did the absence of continuous
interpretation breach the duty of fairness owed to the applicant?
In R. v. Tran (1994), [1994] 2 S.C.R. 951, [1994] S.C.J. No. 16, the
Supreme Court of Canada considered the application of section 14 of the Canadian
Charter of Rights and Freedoms (the Charter) to the trial of a
criminally accused. Section 14 states that:
A
party or witness in any proceedings who does not understand or speak the
language in which the proceedings are conducted or who is deaf has the right to
the assistance of an interpreter.
[36]
Chief Justice Lamer held in Tran above, that the criteria
used to determine whether the standard of interpretation required by section 14
of the Charter was met “. . . include, and are not necessarily limited
to, continuity, precision, impartiality, competency and contemporaneousness”
(at paragraph 57). The Chief Justice said of continuous interpretation that, “.
. . breaks in interpretation and/or summaries of the proceedings have usually
not been viewed in a favourable light” and should not be “encouraged or
allowed” (at paragraphs 58 and 60).
[37]
These
markers of adequate interpretation are accepted for proceedings at the
Immigration and Refugee Board (see Mohammadian v. Canada (Minister
of Citizenship and Immigration), 2001 FCA 191, [2001] 4 F.C. 85 at
paragraph 4). Accordingly,
the Guide to Proceedings before the Immigration Division states in Chapter 6.1
that “the right to the assistance of an interpreter requires that all that is said during the proceeding must be
interpreted.”
[38]
The
applicant is only concerned in this case that the interpretation was not
continuous. Not all of the questions posed to the applicant were translated
into English and the applicant answered some questions directly in English. In
addition, after the connection with the interpreter was lost, the applicant’s
witness, Mr. Jalloh, was asked questions and testified entirely in English. As
such, there was not continuous interpretation during the applicant’s hearing.
Did the applicant waive
the right to interpretation?
[39]
The
applicant submits that she felt required to respond to questions in English. She
further submits that her counsel, during the hearing, was inexperienced and did
not know that she could object to the applicant testifying in English. She
submits that there was no valid legal waiver because she did not have full
knowledge of the rights that interpretation was enacted to protect and she did
not understand the effect that waiver would have on those rights.
[40]
In
Tran above, following Korponey v. Canada (Attorney
General),
[1982] 1 S.C.R. 41, the Supreme Court held that a valid waiver of a procedural
right must be “. . . clear
and unequivocal and must be done with full knowledge of the rights the procedure
was enacted to protect and the effect that waiver will have on those rights”
(at paragraph 78). The Court further added that waiver of the rights in section 14 of
the Charter requires that the waiver be made personally and that the Court
must be satisfied that “nature of the right and the effect on that right of
waiving it have been explained to the accused” (at paragraph 78).
[41]
I have
reviewed the transcript of the hearing and I have come to the conclusion that
the applicant did not make an informed waiver of her right to continuous
interpretation. She originally, at the adjournment of the hearing, had informed
the member that an interpreter was required. I cannot understand how this would
change at the reconvened hearing.
[42]
There are
so many inconsistencies in the transcript of the hearing, I cannot know what
the decision of the Board may have been had continuous interpretation been
present.
[43]
As a
result, I find that there has been a breach of procedural fairness and the
application for judicial review must be allowed.
[44]
The
applicant has proposed serious questions of general importance for my
consideration for certification. I am not prepared to certify any question as
the questions raised are not serious questions of general importance that would
be dispositive of the appeal.
JUDGMENT
[45]
IT IS
ORDERED that the
application for judicial review is allowed and the matter is referred to a
different panel of the Board for redetermination.
“John
A. O’Keefe”
ANNEX
Relevant Statutory Provisions
Immigration and Refugee Protection Act, R.S. 2001, c. 27
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12.(1) A foreign national may be selected
as a member of the family class on the basis of their relationship as the
spouse, common-law partner, child, parent or other prescribed family member
of a Canadian citizen or permanent resident.
72.(1)
Judicial review by the Federal Court with respect to any matter — a decision,
determination or order made, a measure taken or a question raised — under
this Act is commenced by making an application for leave to the Court.
162.(2) Each
Division shall deal with all proceedings before it as informally and quickly
as the circumstances and the considerations of fairness and natural justice
permit.
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12.(1)
La sélection des étrangers de la catégorie « regroupement
familial » se fait en fonction de la relation qu’ils ont avec un citoyen
canadien ou un résident permanent, à titre d’époux, de conjoint de fait,
d’enfant ou de père ou mère ou à titre d’autre membre de la famille prévu par
règlement.
72.(1)
Le contrôle judiciaire par la Cour fédérale de toute mesure — décision,
ordonnance, question ou affaire — prise dans le cadre de la présente loi est
subordonné au dépôt d’une demande d’autorisation.
162.(2)
Chacune des sections fonctionne, dans la mesure où les circonstances et les
considérations d’équité et de justice naturelle le permettent, sans
formalisme et avec célérité.
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Guide to
Proceedings before the Immigration Division, Chapter 6, Language of Proceedings
and Interpreter
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6.1 INTRODUCTION
The considerations
of natural justice referred to in subsection 162(2) of the Act require,
among other things, that the Immigration Division make arrangements to ensure
that the person concerned understands the proceeding and can express himself
or herself at the hearing. This explains the importance of holding the
hearing in the official language (English or French) spoken by the person
concerned or, if this is not possible, of providing him or her with an
interpreter. In addition, the Charter provides for the right of any person to
use the official language of his or her choice in court and the right to the
assistance of an interpreter, the latter right is also provided for by the Canadian
Bill of Rights.
. . .
6.2 GENERALLY
. . .
However, in
order for the hearing to be held in accordance with the principles of natural
justice and the fundamental rights of the parties, the member must verify
that the choice of the official language for the hearing has been acted upon
and that an interpreter has been provided if one is needed. If an interpreter
is provided, the member must ensure that the interpretation is adequate. As
the Supreme Court of Canada held in Tran, "[…] The principle underlying
all of the interests protected by the right to interpreter assistance under
s. 14 is that of linguistic understanding." [our emphasis]
At the
hearing, the member deals with the issues of the language of the
proceeding and the need for an interpreter at the same time. At
the outset of the hearing, the member must ensure that the person concerned
has a sufficient command of the language in which the hearing is to take
place. If the person does not, the member must change the language of the
proceeding [see 6.3 – Language of the proceeding] or request an interpreter
to interpret frome one official language to the other. If the member finds
that the person does not have a sufficient command of either official
language, the member must call for an interpreter to interpret from the
language of the proceeding into the first language of the person concerned
and vice versa [see 6.4 – Interpreter].
. . .
6.4 INTERPRETER
6.4.1 Determining whether an
interpreter is needed
. . .
Even when an
interpreter is present at the beginning of the hearing, a change of
interpreter may be necessary if there are interpretation problems. The member
must remain alert to detect any interpretation problem that may arise and
should not hesitate to adjourn the hearing to change the interpreter if
necessary [see also 6.6.4 – Quality of the interpretation]. When the first
language of the person concerned is neither English nor French and the
hearing proceeds without an interpreter anyway, the member must constantly
ensure during the course of the hearing that the person does not require the
assistance of an interpreter.
In short, even
if the matter of the assistance of an interpreter is, in principle, settled
at the outset of the hearing, the member must continue to be vigilant
throughout the entire hearing when the language of the proceeding is not the
first language of the person concerned.
6.5 DUTY
TO PROVIDE AN INTERPRETER
No provision
of the Act deals specifically with the assistance of an interpreter. However,
in order to comply with the principles of natural justice and the right to
the assistance of an interpreter that is guaranteed by the Charter and by the
Canadian Bill of Rights, the Division must provide an interpreter when
it thinks that one is needed. Rule 17 governs the practice and procedure
of the Immigration Division when an interpreter is required.
. . .
6.5.5 Witnesses
Whether they
are called by the person concerned or by the Minister's counsel, witnesses
have the right to the assistance of an interpreter if they do not have a
command of the language of the proceeding. It is rare for witnesses to
need an interpreter. If one is necessary, the Division must provide an
interpreter at the request of either party.
. . .
6.6.2 Waiver
of the right to an interpreter
Occasionally,
the person concerned may prefer to proceed without an interpreter, even
though he or she has difficulties with English or French. When the person's
language deficiencies are not significant, his or her decision to go ahead
without an interpreter may be accepted. However, if the lack of
interpretation will adversely affect the smooth conduct of the hearing and
the panel's ability to make a decision in the case, the member can be
expected to request the services of an interpreter. In all cases, the
person concerned must fully understand his or her right to the assistance of
an interpreter.
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6.1
INTRODUCTION
Les
considérations de justice naturelle prévues au paragraphe 162(2) de la Loi
exigent, entre autres, que la Section de l'immigration prenne les
dispositions nécessaires afin que la personne en cause comprenne la procédure
et puisse s'exprimer au cours de l'audience qui la concerne, d'où
l'importance de tenir l'audience dans la langue officielle (le français ou
l'anglais) que la personne en cause maîtrise ou, à défaut, de lui fournir les
services d'un interprète. En outre, la Charte énonce le droit de chacun
d'employer la langue officielle de son choix devant les tribunaux et le droit
à l'assistance d'un interprète, ce dernier étant également prévu par la Déclaration
canadienne des droits.
. .
.
6.2
GÉNÉRALITÉS
. .
.
Cependant,
afin de tenir l'audience dans le respect des principes de justice naturelle
et des droits fondamentaux des parties, le commissaire doit vérifier
que le choix de la langue officielle dans laquelle doit se dérouler
l'audience soit indiqué et, s'il y a lieu, que les services d'un interprète
soient fournis. Le cas
échéant, il doit s'assurer que les services de l'interprète sont adéquats. Comme l'a énoncé la Cour
suprême du Canada dans l'arrêt Tran, «[...] le principe qui sous-tend tous
les intérêts protégés par le droit à l'assistance d'un interprète, que
garantit l' art. 14, est la compréhension linguistique. »
À l'audience,
les questions de la langue de la procédure et du besoin des
services d'un interprète sont traitées en même temps par le commissaire.
Dès le début de l'audience, celui-ci doit s'assurer que la personne en cause
maîtrise suffisamment la langue dans laquelle l'audience doit se dérouler, à
défaut de quoi, il doit changer la langue de la procédure [voir 6.3 - Langue
de la procédure] ou exiger l'assistance d'un interprète, qui interprètera,
selon le cas, d'une langue officielle à l'autre ou, de la langue de la
procédure à la langue maternelle de la personne en cause et vice-versa, si le
commissaire estime que la personne ne maîtrise pas suffisamment l'une ou
l'autre des langues officielles [voir 6.4 - Services d'un interprète].
. . .
6.4
SERVICES D'UN INTERPRÈTE
6.4.1
Processus de détermination du besoin des services d'un interprète
. . .
Même
si l'interprète est présent au début de l'audience, un changement
d'interprète peut s'avérer nécessaire si la communication est problématique. Le commissaire doit demeurer vigilant
afin de déceler tout problème d'interprétation qui pourrait survenir et ne
pas hésiter à ajourner l'audience pour changer d'interprète s'il le faut
[voir également 6.6.4 - Qualité de l'interprétation]. Lorsque la langue maternelle
de la personne en cause n'est ni le français, ni l'anglais et que l'audience
procède néanmoins sans interprète, le commissaire doit, au cours de
l'audience, veiller constamment à ce que la personne n'ait pas besoin de
l'assistance d'un interprète.
En
bref, même si la question de l'assistance d'un interprète est, en principe,
réglée dès le début de l'audience, le commissaire doit demeurer vigilant
pendant toute la durée de l'audience lorsque la langue de la procédure ne
correspond pas à la langue maternelle de la personne en cause.
6.5
OBLIGATION DE FOURNIR LES SERVICES D'UN INTERPRÈTE
Aucune
disposition de la Loi ne traite précisément de l'assistance d'un interprète.
Cependant, afin de respecter les principes de justice naturelle et le droit à
l'assistance d'un interprète, garanti par la Charte et par la Déclaration
canadienne des droits, la Section doit fournir les services d'un
interprète lorsqu'elle estime que ceux-ci sont nécessaires. L'article 17 des Règles régit la
procédure et la pratique de la Section de l'immigration lorsque les services
d'un interprète sont requis.
. . .
6.5.5
Témoins
Les
témoins, qu'ils soient appelés par la personne en cause ou le conseil
du ministre, ont le droit à l'assistance d'un interprète s'ils ne
maîtrisent pas la langue de la procédure. Il est très rare que les témoins aient besoin des services
d'un interprète. Le
cas échéant, la Section doit fournir les services d'un interprète
sur demande de l'une ou l'autre des parties.
. . .
6.6.2
Renonciation au droit à un interprète
Parfois,
la personne en cause peut déclarer qu'elle préfère poursuivre sans
interprète, malgré qu'elle ait des difficultés avec le français ou l'anglais.
Lorsque les lacunes
linguistiques de la personne sont faibles, il faudrait accepter la décision
de celle-ci de poursuivre sans interprète. Toutefois, si le commissaire est
d'avis que l'absence d'interprétation nuit au bon déroulement de l'audience
et à la capacité du tribunal de rendre une décision appropriée dans
l'affaire, il devrait imposer les services d'un interprète. Dans tous les
cas, il importe que la personne en cause comprenne pleinement son droit à
l'assistance d'un interprète.
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