Date: 20110120
Docket: IMM-1474-10
Citation: 2011 FC 69
Ottawa, Ontario, January 20,
2011
PRESENT: The Honourable Mr. Justice Simon Noël
BETWEEN:
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LAETITIA UMUBYEYI
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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
[1]
The
present Reasons for Judgment and Judgment deal with questions arising from a
decision of the Immigration and Refugee Board, Refugee Protection Division (the
“Board”) refusing to grant status as a Convention Refugee or a person in need
of protection to Laetitia Umubyeyi (the “Applicant”). In its decision, dated
January 25, 2010, the Board refused to grant status on the basis that the
Applicant’s testimony was vague and that it lacked specificity in regards to
why the Applicant left Rwanda. Furthermore, the Applicant had failed to
establish a serious possibility of persecution and a danger of torture, a risk
to her life or the like.
[2]
The
fairness of the Applicant’s hearing is at the heart of the present matter, as
the Applicant alleges that several discrepancies in the interpreter’s work were
found after the hearing, upon review by another person of the recording of the hearing.
The Applicant argues that these discrepancies and inaccuracies caused by the
interpreter were linked to essential elements of the Board’s decision.
[3]
The
Respondent counters this by stating the legal requirements of interpretation in
the Board context and by stating that no prejudice has resulted from the
alleged flaws in the interpreter’s work. Also, the issues on which translation
discrepancies can be found are not central to the Board’s findings, and
therefore can be rejected as not determinative and not indicative of prejudice.
Hence, the Respondent argues that the Board’s decision was reasonable and
should not be reviewed by this Court.
The Applicable Standard
of Review
[4]
The
standard of review applicable to procedural fairness issues arising from
difficulties experienced during the Board hearing with the interpreter are to
be reviewed on the standard of correctness (Singh v Canada (Citizenship and
Immigration), 2010 FC 1161; Goltsberg v Canada (Citizenship and
Immigration), 2010 FC 886; Sherpa v Canada (Citizenship and Immigration),
2009 FC 267). However, the question of the accuracy and consistency of the
translation were not placed before the Board. In any event, even if it had, the
Court would proceed to its own analysis pursuant to the correctness standard.
Analysis
[5]
As
the Court did not review the recording of the Board hearing, and could not be
expected to know the intricacies of the Kinyarwanda language, it relies on the
affidavit of Danielle Abe Jambo to establish that there were discrepancies in
the interpreter’s translation. While the transcription of the Board hearing
only establishes that there were some issues in communication and
understanding, the Court will rely on Ms. Abe Jambo’s affidavit to establish
that there were indeed discrepancies in the translation.
[6]
The
right to a proper interpretation finds its root in section 14 of the Charter.
While this section was deemed to be applicable in criminal proceedings for the
accused, it is well established that this right is also at play in
administrative and immigration proceedings (Mohammadian v Canada (Minister
of Citizenship and Immigration), 2001 FCA 191 (“Mohammadian”); see
for example Xu v Canada (Citizenship and Immigration), 2007 FC 274; Shokohi
v Canada (Citizenship and Immigration), 2010 FC 443).
[7]
More
precisely, the Federal Court of Appeal ruled that a person before the Board had
a right to an interpretation that is continuous, precise, competent, impartial
and contemporaneous (Mohammadian, at para 20). The Applicant does not
have the burden to show that an actual prejudice arises from a breach of his
right to a continuous, precise, competent, impartial and contemporaneous
interpretation (Mohammadian, at para 20; Sherpa v Canada (Citizenship
and Immigration), supra; Huang v Canada (Minister of
Citizenship and Immigration), [2003] FCJ No 456). However, the
Applicant has a duty to raise this issue at the first opportunity that arises (Mohammadian,
at para 19; Sayavong v Canada (Minister of Citizenship and Immigration),
2005 FC 275; Elmaskut v Canada (Minister of
Citizenship and Immigration), 2005 FC 414).
[8]
In
the case at bar, it appears that the Board generally inquired at the beginning
of the hearing that the Applicant indeed understood the interpreter and reiterated
to the interpreter that an oath was taken. However, the Applicant does not
speak English, and thus could not verify at the hearing that what was
translated was done continuously, precisely, with competence, impartially and
contemporaneously. Justice Russell’s obiter dicta in Sherpa, above,
at paragraph 62, is useful and wholly applicable to the case at bar: “My review
of the record suggests to me that no one at the hearing, including the
Applicant and her counsel, could have appreciated the errors that were made. They
only became apparent when the recording became available and comparisons were
made”.
[9]
As
Abe Jambo’s affidavit shows, there were mistakes, omissions and discrepancies
in the interpreter’s work, some of which constituted elements of the Board’s
decision. While Mohammadian and the jurisprudence that follows its reasons
do not require that errors in interpretation be material, there is some case
law from this Court that would suggest that the errors must result in prejudice
(see for example: Sherpa, above; Nsengiyumva v Canada (Minister of
Citizenship and Immigration), 2005 FC 190, at para 16 and Banegas v
Canada (Minister of Citizenship and Immigration), [1997] FCJ No 928, at
para.7). The Court uses the guidance of Justice Phelan when he stated in Xu
v Canada (Citizenship
and Immigration), 2007 FC 274, at para. 12 that:
As important as this right is, the burden
on a person raising interpretation issues is significant. Such a claim must
overcome the presumption that a translator, who has taken an oath to provide
faithful translation, has acted in a manner contrary to the oath. Simply
alleging mistranslation will not be sufficient – the burden is to show that on
a balance of probabilities mistranslation occurred.
[10]
In
this case, the affidavit evidence is sufficient to establish a concern of the
adequacy of the translation at the Board hearing. Understandably, there is a
high evidentiary threshold to establish that the Applicant waived her right to
a fair interpretation, and there is nothing to indicate that she did indeed
waive her right (Thambiah v Canada (Minister of Citizenship and Immigration),
2004 FC 15; Sherpa, above). In any event, even if mistranslation could
be reasonably apparent during the hearing itself, as it was in Elmaskut v Canada (Minister of
Citizenship and Immigration), 2005 FC 414, the matter can be sent for
redetermination before the Board.
[11]
More
precisely, the Court takes issue with an error in translation, at the 58th
minute of the hearing, which led to a negative credibility finding against the
Applicant, which is found at paragraph 9 of the Board’s decision. It is clear
that credibility goes to the very heart of the determinations to be made by the
Board. It is not an issue that is independent of the other findings:
credibility is central to most, if not all, of the findings that the Board
makes when assessing asylum claims.
[12]
Considering
the importance of procedural fairness and that the inadequacies of the
interpretation resulted in negative credibility and factual findings in the
IRB’s decision, a new hearing is warranted before the same Board member. In
this case, the Board member simply assessed the case with the translation it
was given and there is nothing to suggest that the member did not properly
address the case or made errors in it. Simply, it relied on erroneous
translation. It may be that the Board member will make the same findings in
regards to credibility, or the other elements of the case. However, it is clear
that these findings cannot rely on erroneous translation.
[13]
The
Parties did not submit any questions for certification and none arises.
JUDGMENT
THIS COURT’S JUDGMENT
is that:
- The
application for judicial review is granted and sent back for determination to
the same Board Member. No question is certified.
“Simon
Noël”
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