Date: 20070307
Docket: IMM-3852-06
Citation: 2007 FC 267
Vancouver, British Columbia, March
7, 2007
PRESENT: The Honourable Mr. Justice Teitelbaum
BETWEEN:
PALWINDER
SINGH
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. Introduction
[1]
This
is an application pursuant to s. 72(1) of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27 (Act) for judicial review of a decision of
Ross Pattee, a member of the Immigration and Refugee Board (the Board), dated
June 30, 2006, wherein the Board held that the Applicant was not a Convention
refugee pursuant to s. 96 of the Act and was not a person in need of protection
pursuant to s. 97 of the Act.
II. Facts
[2]
The
Applicant, Mr. Singh, is a Sikh from the Punjab in India. Mr. Singh
makes his refugee claim on the basis of his connection to a Mr. Mohammed Abdul
– a friend who Mr. Singh was visiting when Mr. Abdul's house was raided by the
police. The police found an AK-47 with the name of a terrorist organization –
"Lashkare-Toiba" – engraved on the butt of the weapon. Mr. Singh, as
a result of being at his friend's house, was arrested and tortured for ten
days. He was released upon paying a 50 000 rupee bribe. The injuries he
received required another ten days of hospital treatment.
[3]
After
Mr. Singh returned home, the Jammu and Punjab police continued to seek him
and raided his house in November 2003. Mr. Singh was not home that day and went
into hiding. On January 14, 2004, he fled his village to Delhi and stayed
in a hotel for four months.
[4]
On
April 14, 2004, Mr. Singh arrived in Canada to visit his ailing
father and avoid arrest. When it became clear to the Applicant that he could
not return to India, Mr. Singh
filed a refugee claim on January 27, 2005.
III. Member's Decision of June 20,
2006
[5]
The
Board did not take issue with the Applicant's identity.
[6]
However,
the Board found that the Applicant was vague, confused as to dates and, in a
number of instances, he provided contradictory testimony.
A. Applicant's Alleged Injuries
[7]
The
Board took issue with the fact that the Applicant, during oral testimony, said
that the police had broken his right leg. This was supported by a medical
report by a Dr. Benipal. However, in his Personal Information Form (PIF) the
Applicant said it was his left leg. The Board drew a negative credibility
inference as the Applicant was given the opportunity to correct his PIF at the
beginning of the hearing, but did not, and agreed that his PIF was accurate.
[8]
During
the hearing, the Applicant testified to having six fingers broken. This was not
mentioned in his CIC interview or in the PIF. The Applicant's explanation that
he was never asked about his fingers was rejected by the Board as the
immigration officer specifically asked "what happened at the
hospital?" The Applicant responded to this question explaining injuries to
his leg and back. The Board also noted that the medical report from Dr. Benipal
was just over two pages long and was quite detailed – yet does not mention broken
fingers. The medical report did mention "lesser contusions…and
abrasions"; however, the Board did not believe that six broken fingers
would qualify as a contusion or abrasion. Additionally, Dr. Benipal made a
referral to a bone specialist for the leg, yet made no mention for the
treatment for the broken fingers.
B. The Lack of Subjective Fear
[9]
The
Board was of the opinion this was the most significant defect in the
Applicant's claim. The Board took issue with the Applicant remaining in Delhi for four
months, purportedly to obtain a visa. The Applicant testified that he paid an
agent 800 000 rupees ($19,000 CAN), yet did not claim refugee status
immediately upon arrival. Also, the Applicant did have a valid visa that
expired on April 28, 2004, and was denied his request for extension until
October 28, 2004. The Board took issue that the Applicant did not seek refugee
protection rather than seek an extension on his visa.
[10]
The
Applicant testified that he came to Canada to visit his ailing
father and he always planned on returning to India. It was only
after he was in Canada that the situation in India changed and
he did not wish to return. This was why the Applicant did not claim refugee
status immediately upon arrival. The Board did not accept this explanation as
representing the acts of someone who was fearful of returning to India.
[11]
The
Board noted that a village Sarpanch (elder) filed an affidavit that the
Applicant had to flee India for fear of losing his life. When
questioned on this, the Board was of the opinion that the Applicant became
confused and testified that he did flee India to save his
life – not to visit his father. The Board was clear that they rejected this
story and the Applicant was merely using a refugee claim as a method of
remaining in Canada.
C. Translation
[12]
During
final submissions, counsel for the Applicant formally objected to the
translation. This occurred after the testimony which, according to the Board,
did not involve interpretation problems.
[13]
The
Board notes that, at times, the Applicant's counsel would assist in the
translation of the testimony. However, the answers given were logical in their
relation to the question and the Board re-questioned the Applicant where there
was confusion. Also, the Board noted that the Applicant did not seek
clarification on an issue before answering the questions.
[14]
The
Board, in its reasons, relies upon R. v. Tran, [1994] 2 S.C.R. 951, for
the proposition that translation is held to a high standard, not a standard of
perfection. The Board was of the opinion that the translation was competent and
the Applicant received a fair hearing.
IV. Most Relevant Legislation
[15]
The
Canadian Charter of Rights and Freedoms, Part I of the Constitution
Act, 1982, s. 14; and sections 96 and 97 of the Immigration and Refugee
Protection Act, S.C. 2001, c. 27.
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14. 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.
96. A Convention refugee is a person who,
by reason of a well-founded fear of persecution for reasons of race,
religion, nationality, membership in a particular social group or political
opinion,
(a) is outside each of their countries of nationality and
is unable or, by reason of that fear, unwilling to avail themself of the
protection of each of those countries; or
(b) not having a country of nationality, is outside the
country of their former habitual residence and is unable or, by reason of
that fear, unwilling to return to that country.
97. (1) A person in need of protection is
a person in Canada whose removal to their country or countries of nationality or, if they
do not have a country of nationality, their country of former habitual
residence, would subject them personally
(a) to a danger, believed on substantial grounds to
exist, of torture within the meaning of Article 1 of the Convention Against
Torture; or
(b) to a risk to their life or to a risk of cruel and
unusual treatment or punishment if
(i) the person is unable or, because of that risk,
unwilling to avail themself of the protection of that country,
(ii) the risk would be faced by the person in every part
of that country and is not faced generally by other individuals in or from
that country,
(iii) the risk is not inherent or incidental to lawful
sanctions, unless imposed in disregard of accepted international standards,
and
(iv) the risk is not caused by the inability of that
country to provide adequate health or medical care.
(2) A person in Canada who is a member of a class of persons prescribed by the
regulations as being in need of protection is also a person in need of
protection.
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14. La partie ou le témoin qui ne peuvent suivre les procédures, soit
parce qu'ils ne comprennent pas ou ne parlent pas la langue employée, soit
parce qu'ils sont atteints de surdité, ont droit à l'assistance d'un
interprète.
96. A qualité de réfugié au sens de la Convention — le réfugié — la
personne qui, craignant avec raison d’être persécutée du fait de sa race, de
sa religion, de sa nationalité, de son appartenance à un groupe social ou de
ses opinions politiques :
a) soit se trouve hors de tout pays
dont elle a la nationalité et ne peut ou, du fait de cette crainte, ne veut
se réclamer de la protection de chacun de ces pays;
b) soit, si elle n’a pas de
nationalité et se trouve hors du pays dans lequel elle avait sa résidence
habituelle, ne peut ni, du fait de cette crainte, ne veut y retourner.
97. (1) A qualité de personne à protéger la personne qui se trouve au
Canada et serait personnellement, par son renvoi vers tout pays dont elle a
la nationalité ou, si elle n’a pas de nationalité, dans lequel elle avait sa
résidence habituelle, exposée :
a) soit au risque, s’il y a des
motifs sérieux de le croire, d’être soumise à la torture au sens de l’article
premier de la Convention contre la torture;
b) soit à une menace à sa vie ou au
risque de traitements ou peines cruels et inusités dans le cas suivant :
(i) elle ne
peut ou, de ce fait, ne veut se réclamer de la protection de ce pays,
(ii) elle y
est exposée en tout lieu de ce pays alors que d’autres personnes originaires
de ce pays ou qui s’y trouvent ne le sont généralement pas,
(iii) la
menace ou le risque ne résulte pas de sanctions légitimes — sauf celles
infligées au mépris des normes internationales — et inhérents à celles-ci ou
occasionnés par elles,
(iv) la menace
ou le risque ne résulte pas de l’incapacité du pays de fournir des soins
médicaux ou de santé adéquats.
(2) A également
qualité de personne à protéger la personne qui se trouve au Canada et fait
partie d’une catégorie de personnes auxquelles est reconnu par règlement le
besoin de protection.
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V. Issues
Issue #1 Did the Board
breach the principles of procedural fairness by failing to provide a competent
and precise interpreter during the Applicant's refugee claim?
Issue #2 Did the Board act
in a perverse manner in making their credibility findings?
VI.
Standard of Review
A.
Translation
[16]
The
adequacy of the interpretation provided goes to the fairness of the hearing;
therefore, no pragmatic and functional analysis is required. It is for the
Court to determine whether the hearing was conducted in accordance with both
the requirements of procedural fairness. Per Saravia v. Canada (Minister of
Citizenship and Immigration), 2005 FC 1296; [2005] F.C.J. No. 1595.
B. Credibility
[17]
The
standard of review when determining credibility issues is patent
unreasonableness as set out in Umba v. Canada (Minister of
Citizenship and Immigration), [2004] F.C.J. No. 17.
[18]
In
Chen v. Canada (Minister of Citizenship and Immigration), [1999]
F.C.J. No. 551 at para 5, the Federal Court of Appeal held that only "…where
the evidence viewed reasonably is incapable of supporting the tribunal's
findings will a fact finding be patently unreasonable."
VII. Applicant's Arguments
Issue #1 – Main
Submission
[19]
The
Applicant points out that this was a "new" translator, as it appears
this was the first refugee translation this individual was involved in.
[20]
The
Applicant relies on Mohammadian v. Canada (Minister of Citizenship and
Immigration), [2000] 3 F.C. 371 (Aff'd [2001] 4 F.C. 85 (C.A.)) for the
considerations when determining if an applicant received fair interpretation as
required under s. 14 of the Charter. Justice Pelletier held:
-- in general terms, the standard of
interpretation is high but not so high as perfection.
-- continuous: without breaks or
interruptions i.e., interpretation must be provided throughout the proceedings
without any periods where interpretation is not available.
-- precise: the interpretation should
reflect the evidence given without any improvement of form, grammar or any
other embellishment.
-- impartial: the interpreter should have
no connection to parties or interest in the outcome.
-- competent: the quality of the
interpretation must be high enough to ensure that justice is done and seen to
be done.
-- contemporaneous: the interpretation
must be available as the evidence is given, though not necessarily
simultaneously.
[21]
The
Applicant asserts that this issue was raised at the hearing prior to the final
submissions as the Respondent suggests. Rather, the Applicant argues the issue
as to the adequacy of translation was raised at several occasions.
Specifically, counsel upon direct examination of the Applicant put the
following questions:
Counsel: "Did you have any
problem to understand the interpreter?"
Applicant: "Yes"
Counsel: "How
much difficulty did you have to understand all the questions interpreted to you
by the interpreter present here in this room?"
Applicant: "Sometimes
it was a lot difficult and it was hard to understand."
Counsel: "If
you did not understand the interpreter, why you are answering those
questions"?
Applicant: "I was
telling you as I understood."
[22]
The
Applicant also points out several examples of erroneous translation during the
hearing:
a) Where the
translator mistakes the issue of the delayed departure from India, with the departure from Canada.
b) Where the
translator had to be explained what an internal flight alternative was.
c) Where the
translator is explained that he may not have discussions with the applicant
without translating all that is said. Also, that the translator could not
determine the translation of a Personal Information Form.
d) Where the
translator mistook the words "AK-47" for "documents"
referring to when the police searched the applicant's friend's house. It
appears that the engraving on the butt of the weapon implied to the translator
that there was written documents.
e) Where the
translator had difficulties translating how a wooden "stick" was used
to beat the applicant.
f) Where the
applicant could not understand the translation of the presiding member's
question with respect to why the applicant came to Canada in the first place. The applicant points
out that when he was questioned by his own counsel in direct examination, he
testified that he came to Canada because he was "afraid…of the Punjab police and Jammu Kashmir
police" because of his relationship with Mohammed Abdul. Therefore, the
applicant uses this explanation to support that the Board did not understand
the evidence that was presented and it erred by finding the applicant
"uncategorically" came to Canada
to visit his father.
[23]
The
Applicant argues that since this case turns on credibility, the translation
errors become even more pertinent. The lack of credibility and subjective fear
are in large part due to the inability of the Applicant to convey his story
accurately to the Board.
Issue #2 - Specific
Credibility Issues
[24]
The
Applicant relies on Akhigbe v. Canada (M.C.I.) 2002 FCT 249, [2002]
F.C.J. No. 332 for the proposition that the omission of the broken fingers on
the PIF is a minor or elaborative detail and should not be the basis for a
negative credibility finding.
[25]
Further,
the Applicant argues that the medical report was prepared two and a half years
after the injuries and Dr. Benipal cannot be expected to recall all the
injuries sustained. In the further alternative, the Applicant argues that the
Board is not an expert on medical treatment and cannot conclude that contusions
or abrasions would not also encompass broken fingers.
VIII. Respondent's Arguments
Issue #1 -
Interpretation
[26]
The
Respondent argues that the Board took sufficient steps to ensure the interpretation
was adequate. The Board clarified the questions when there was confusion.
Additionally, the Applicant's own counsel assisted in the translation to
clarify any errors and the Applicant himself understood some English. The Board
was clear on numerous occasions that, should the Applicant not understand any
of the questions, he could seek clarification.
[27]
The
Respondent agrees that the standard of review is correctness on this issue;
however, correctness does not require perfection, as explained in Mohammadian.
[28]
The
Respondent points out that the Applicant has not provided affidavit evidence to
show there was a misunderstanding of the evidence; therefore, there is no basis
for a re-determination.
Issue #2 - Credibility
[29]
The
Respondent argues that it is not patently unreasonable for the Board to have
drawn the inferences it did as, in addition to the broken fingers not being
mentioned in the medical report, it was not mentioned in the earlier interviews
and submission of the Applicant. The Respondent relies on the Oxford dictionary
to support that abrasion is a "scraping off" and a contusion is a
bruise without breaking the skin. Therefore, it is not unreasonable for the
Board to have rejected that these passages in the medical report were referring
to the broken fingers.
[30]
Additionally,
the Applicant was clear that his purpose for coming to Canada was to visit
his father, not because of a fear of subjective harm.
IX. Analysis
Issue #1
[31]
I
must state that Justice Pelletier in Mohammadian was clear that:
…complaints about the quality of
interpretation must be made at the first opportunity, that is, before the CRDD,
in those cases where it is reasonable to expect that a complaint be made…. If
the interpreter is having difficulty speaking the applicant's own language and
being understood by him, this is clearly a matter which should be raised at the
first opportunity. On the other hand, if the errors are in the language of the
hearing, which the applicant does not understand, then prior complaint may not
be a reasonable expectation.
[32]
The
Respondent does not seem to be arguing that the doctrine of waiver is
applicable on these facts.
[33]
I
agree with the Applicant that he did bring up the issue of translation prior to
the closing remarks as it was brought up at the commencement of the direct
examination of the Applicant. In response, the Presiding Member said that
"We've just spent the last three hours in this hearing together and I and
the RPO have asked questions in various ways and the answers have been, in my
view, consistent with the questions being asked." Further, the Presiding
Member stated "Well, Mr. Sandhu, you, yourself have been assisting
throughout with the interpretation. I find it almost offensive that you're
mentioning this three hours into the hearing."
[34]
Thus,
while the Board may have erred in its reasons as to when the initial objection
occurred, it does not change the fact that three hours had passed, and the
Applicant's counsel had not objected, but instead assisted the proceedings. I
agree with the Respondent that – for the most part – the questioning flowed
fairly smoothly and the Applicant appeared to answer most of the questions in a
manner that would seem logical with the question posed. The exceptions /
confusion seemed to arise from the contradictions and omissions in the
Applicant's PIF. In my opinion, it could certainly be open to argument that the
confusion on these particular questions was more in relation to the inability
to explain the omissions and discrepancies and not the translation per se.
[35]
I
also note that the Applicant was asked if he understood the translator at the
outset of the hearing.
[36]
This
leaves the competency of the translation at issue. This standard requires that the
interpretation "must be of a high enough quality to ensure that justice is
done and seen to be done."
[37]
After
a reading of the complete transcript of the hearing, it is clear the
interpreter failed to give a proper translation of what was said.
[38]
I
am of the opinion that if any one of the translation issues occurred as an
isolated incident, I would dismiss this review. However, given the quantity of
errors identified by the Applicant, I cannot be sure that all of them have been
addressed and I am unsure if the Applicant received a fair hearing.
[39]
The
Court held in Saravia, above, that where interpretation is required, all
concerned must be prepared to use short sentences, speak slowly, use alternate
words or phrases where a word or phrase is not understood or easily
interpreted, and generally act in good faith. Given that in the present case
there were several requests by the Board for the Applicant (and the translator)
to speak in "chunks" the present case has run afoul of the guidance
of Saravia. Additionally, given the repeated reminders from the Board
for the interpreter to translate everything that was said by the Applicant, I
would suggest that this increases the concerns that important testimony was
missed and that the Applicant may not have received a fair hearing.
[40]
I
also note that, while it was helpful for counsel to properly translate some of
his client's testimony, I am concerned as to what the result would have been
had counsel not spoken the same language as his client. I do not believe it is
counsel's job to provide adequate translation. That obligation falls upon the
Respondent and the fact that they had to receive repeated assistance from
counsel implies to me that they fell short of that obligation.
[41]
I
agree with the Respondent that the Board told the Applicant that he could ask
for clarification if it were needed. However, in my opinion, this is not a
sufficient safeguard as it does not address the core issues of the translator
asking the questions improperly or in his giving the answers back to the Board
in a potentially inaccurate manner.
[42]
While
I have no doubt that the Board and the translator acted in good faith, given
the quantity of the errors I would allow the judicial review on this point.
X. Conclusion
[43]
Although
there is no requirement for perfection in the translation, in this instance the
translation fell short of what should be expected for justice to "be seen
to be done".
[44]
I
allow the judicial review and remit the matter for a new hearing before a
different Board.
[45]
No
question was submitted for certification.
JUDGMENT
The judicial review is allowed.
The matter is remitted for a new hearing before a different Board. No question
was submitted for certification and none will be certified.
"Max
M. Teitelbaum"
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