Date:
20130809
Docket:
IMM-8571-12
Citation:
2013 FC 853
Ottawa, Ontario,
August 9, 2013
PRESENT: The
Honourable Madam Justice Gleason
BETWEEN:
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HO JAE MAH
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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
for judicial review of the August 7, 2012 decision of the Refugee
Protection Division of the Immigration and Refugee Board [the RPD or the Board]
finding the applicant to be neither a Convention refugee nor a person in need
of protection within the meaning of sections 96 and 97 of the Immigration
and Refugee Protection Act, SC 2001, c 27 [the IRPA]. For the reasons that
follow, I am granting this application because the applicant was denied
adequate translation at his hearing.
Background
[2]
The
applicant claims to be from the Democratic People’s Republic of Korea (North Korea). He alleges that his father was sent to prison as a political dissident and
never seen again. The applicant also alleges that he, himself, was detained for
six months after discussing a South Korean political pamphlet with friends.
After his release from detention, the applicant claims to have illegally
crossed the border from North Korea and gone to China, where he worked
illegally for a period of time. He alleges that during this period his wife and
child disappeared and claims they cannot be found. Fearing to return to North Korea or to remain illegally in China, he came to Canada with the help of a smuggler and made
a refugee claim several days after arrival. He had no documentation to
establish his identity as a North Korean, which the Board noted is typical of
claimants from that country.
[3]
The
Board rejected the applicant’s claim based on credibility. The RPD did not believe
that the applicant was from North Korea due to inconsistencies between his
story and the documentary evidence, implausibilities in his claim and
contradictions between the applicant’s oral testimony before the Board and what
was contained in either the narrative to his Personal Information Form or the
IMM 5611 form (“Claim for Refugee Protection in Canada”) that was completed
when he first made his refugee claim. The Board also noted that the applicant
used South Korean pronunciations for some words and then corrected himself, which
the it concluded indicated the applicant likely was not from North Korea and
was attempting to mislead the Board in that regard.
[4]
At
several points during the hearing, applicant’s former counsel intervened to
correct the translator and expressed concerns with the accuracy of the
translation. The transcript reveals that counsel spoke Korean. Counsel did not
seek to have the hearing stopped nor to have a new translator appointed, and it
appears from the transcript that the translator corrected many (if not all) of
the errors pointed out by counsel. However, as is now evident, counsel did not
identify all of the errors in translation at the hearing.
[5]
In
this regard, the applicant has filed an affidavit from Ms. Hae-Jah (Helen) Pak,
a certified interpreter and translator, who has been accredited by the Immigration
and Refugee Board to translate between Korean and English. In her affidavit,
Ms. Pak deposes that she listened to the tape of the hearing and that there
were several errors in the translation in addition to those noted by
applicant’s former counsel during the hearing, including errors made in respect
of points upon which the Board premised its credibility determinations. Ms. Pak
also deposes that she could not tell from the tape whether the applicant used
the South Korean pronunciation the Board member accused him of, but did note
that at other points it was the translator who substituted the South Korean
pronunciation of names that the applicant had pronounced with a North Korean
accent.
Points in issue
[6]
In
this application, the applicant raises several arguments, but only one needs to
be addressed, namely the claim that the errors in interpretation undermine the
RPD’s core credibility findings and that the decision should accordingly be set
aside.
[7]
The
respondent argues on this point that the applicant has waived his right to
challenge the accuracy of the translation as he did not raise the errors he now
relies on during the hearing before the RPD and that in any event the
translation errors are immaterial and should not provide a basis for
intervention. The respondent asserts in this regard that the multiple other
bases offered by the Board provided more than ample reason to reject the
applicant’s claim, principally because his version of events is implausible.
The respondent notes that the country documentary evidence before the Board on
North Korea establishes that the country is a highly controlled and militarized
society, where movement from place to place is difficult, if not impossible,
where detainees suspected of dissent are not typically released and where the
border with China is heavily guarded. The respondent argues that in the face of
this evidence, the RPD’s finding that the applicant’s story lacked credibility
is reasonable. The respondent also challenges the admissibility of the
affidavit of Ms. Pak, arguing that as the applicant waived his right to contest
the adequacy of translation, the affidavit should be rejected.
Admissibility of Ms. Pak’s
Affidavit
[8]
Contrary
to what the respondent asserts, the issue of whether the applicant waived his
right to interpretation is unrelated to the admissibility of the affidavit.
Where inadequacy of translation before the Board is alleged, the claim is one
of a breach of procedural fairness. It is well-established that evidence that
was not before the tribunal is admissible before this Court on judicial review
to either establish or refute a claimed violation of procedural fairness (Slaeman
v Canada (Attorney General), 2012 FC 641 at paras 14-19; Ochapowace
First Nation v Canada (Attorney General),
2007 FC 920 at para 9).
Thus, Ms. Pak’s affidavit is properly before me.
Adequacy of
Translation
[9]
Turning
to the central issue – the claimed inadequacy of translation – as a question of
procedural fairness no standard of review is applicable to determine if
the applicant’s rights were violated due to faulty translation at the hearing
before the RPD. It is for me to decide whether there has been a violation of
the applicant’s procedural fairness rights (Khosa v Canada (Minister of Citizenship & Immigration), 2009 SCC 12 at para 43; CUPE v Ontario (Minister of Labour), 2003 SCC 29 at para 100).
[10]
Section
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 [the Charter] applies to
proceedings before the RPD and provides the right to adequate translation. The
section states in relevant part that “[a] party […] in any proceedings who
does not understand or speak the language in which the proceedings are
conducted […] has the right to the assistance of an interpreter.” This right
has been interpreted in the immigration context as guaranteeing refugee
claimants the right to interpretation
that is “continuous, precise, competent, impartial and contemporaneous” (Mohammadian
v Canada (Minister of Citizenship and Immigration), 2001 FCA 191 at para 4 [Mohammadian]). The
Federal Court of Appeal indicated in Mohammadian, however, that perfection is
not the standard for translation and that a contextual assessment must be
undertaken to determine whether the standard was met in a particular set of
circumstances (at paras 6-7).
[11]
In
Mohammadian, even though there were errors in translation, the
Court found the applicant had waived his right to challenge the adequacy of the
translation because he had not raised the issue before the Board but could have
done so. The evidence in that case demonstrated that the applicant was aware of
the problems with the adequacy of the translation when he was before the Board,
but instead of raising a concern chose to remain silent. In finding him to have
waived his right to contest the adequacy of the translation, the Court of
Appeal held that a claimant must raise inadequate translation issues at the
first available opportunity, and because Mr. Mohammadian had failed to do so,
the doctrine of waiver prevented him from arguing that the translation was
inadequate in his judicial review application (at para 19).
[12]
The
case law of this Court applying the principles from Mohammadian has
focused principally on two issues: first, whether claimants have waived their
right to challenge the adequacy of translation and, second, whether the errors
made need be – or were – material to the outcome of the decision. Here, both
issues arise.
Has the applicant waived his right
to challenge the adequacy of the translation?
[13]
Insofar
as concerns waiver, in Mohammadian the Federal Court of Appeal
determined that the principles applicable in the criminal context to determine
whether an accused has waived his or her right to competent translation are
inapplicable in refugee hearings. In R v Tran, [1994] 2 S.C.R. 951 at
996-997, 117 DLR (4th) 7 [Tran], the Supreme Court of Canada held that
in the criminal context, “waiver […] has to 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.” In Mohammadian,
on the other hand, the Court of Appeal held that waiver of the right to object
to inadequate translation may be inferred from conduct in refugee cases, noting
that the volume of workload before the Board necessitates a more flexible
approach to waiver than that which is applied in the criminal context.
[14]
Subsequent
cases have found waiver to occur in situations where refugee claimants (or counsel) are aware of
the problems with translation, but do not raise them with the Board (see e.g. Rafipoor v Canada
(Minister of Citizenship and Immigration), 2007 FC 615 at para 9 [Rafipoor];
Nsengiyumva v Canada (Minister of Citizenship and Immigration), 2005 FC
190 at paras 14-15 [Nsengiyumva]).
[15]
On
the other hand, where the evidence demonstrates the lack of such awareness,
then the opposite conclusion has been reached (see e.g. Yoon v Canada (Minister of Citizenship
and Immigration), 2012 FC 193 at paras 38-39 [Yoon]; Zaree v
Canada (Minister of Citizenship and Immigration), 2011 FC 889 at para 8 [Zaree];
Ahamat Djalabi v Canada (Minister of Citizenship and Immigration), 2007
FC 684 at paras 16-17; Huang v Canada (Minister of Citizenship and
Immigration), 2003 FCT 326 at para 10, 231 FTR 61; see also Umubyeyi v
Canada (Minister of Citizenship and Immigration), 2011 FC 69 at para 10 [Umubyeyi]).
[16]
Here
I am faced with a situation where it is not entirely clear whether the problems
with the translation that are raised before me were evident to counsel at the
refugee hearing. As noted, the applicant’s former counsel spoke Korean and was
able to highlight several problems with the translation, but did not raise the
translation errors that the applicant now asserts. The parties each argue that
inverse inferences should be drawn from these circumstances: the respondent
submits that I should presume awareness of the errors because counsel spoke
Korean and the applicant submits I should presume the converse as one would
assume that if the former counsel had known of the errors now raised, she would
also have mentioned them.
[17]
I
believe that the applicant’s inference is the more appropriate as it would have
been illogical for counsel to have raised some but not all of the errors made
by the translator during the hearing. However, it is not necessary to resort to
an inference to decide whether the doctrine of waiver applies in this case as
the issue can be decided based on the burden of proof.
[18]
In
this regard, when one recalls the nature of the doctrine and the holding in Mohammadian,
it becomes apparent that waiver is a defence to a claimed right. It is
therefore incumbent on the party that claims the doctrine applies to establish
the facts necessary for its application (see generally Snell v Farrell,
[1990] 2 S.C.R. 311 at 321; Alan W Bryant, Sidney N Lederman & Michelle K
Fuerst, The Law of Evidence in Canada, 3d ed (Markham, Ont: LexisNexis,
2009) at s 3.13; Kevin P McGuinness & Linda S Abrams, The Practitioner’s
Evidence Law Sourcebook (Markham, Ont: LexisNexis, 2011) at 305). Here,
therefore, it was the respondent’s burden to establish the facts necessary for
the application of the doctrine of waiver – namely knowledge of the errors by
applicant’s former counsel. The respondent has not done so, and, therefore,
waiver does not apply.
[19]
This
case is similar to Zaree and Yoon, relied on by the applicant. In
those cases, like
here, the applicant or their counsel had objected to some translation errors
before the RPD, but sought to raise additional errors on review. My colleagues,
Justices Shore and Martineau, found they were entitled to do so as there was
no proof that they were aware of the errors they raised before the Court when
they were before the Board and, therefore, the doctrine of waiver did not apply.
[20]
The
respondent argues that
the opposite conclusion was reached by my colleague, Justice Scott, in Mowloughi v Canada (Minister of Citizenship and Immigration),
2012 FC 662 in
the face of identical facts. While it is true that Justice Scott found that Mr.
Mowloughi ought to have raised the issues before the Board (arguably absent any
proof that he was aware of them), the decision does not turn on this point but,
rather, on the fact that the errors in question in that case were not material.
Thus, in my view, the more relevant authorities are Zaree and Yoon.
In light of them and the other reasons set out above, I find that the doctrine
of waiver is inapplicable in this case.
Are the errors in translation
serious enough to warrant setting the decision aside?
[21]
As
noted, the respondent additionally argues that even if the doctrine of waiver
is inapplicable, the applicant’s claims regarding inadequacy of translation
should nonetheless be rejected because the errors made are not material because
there were other bases upon which the Board reasonably premised its negative
credibility findings.
[22]
I
cannot accept this argument for two reasons. First, in light of the holding in Mohammadian,
it is far from certain that translation errors need to be material, in the
sense of being intertwined with key findings that cannot be excised from an RPD
decision, in order to support a successful claim for judicial review. Second,
and more importantly, even if such materiality is required to set aside an RPD
decision, it exists in this case as several of the Board’s key findings on
which it premised its negative credibility determination were based on
faulty translation of the applicant’s testimony.
[23]
Insofar
as concerns the first point, in Mohammadian, through its
answer to one of the certified questions, the Federal Court of Appeal held that
an applicant need not be prejudiced by a translation error for an award to be
set aside if the applicant establishes there were errors in the translation and
has not waived his or her right to complain about them. In my view, this
holding establishes that an error need not be central to a key portion of the
Board’s decision to warrant a decision’s being overturned. Thus, materiality of
the sort asserted by the respondent in this case is not required before a
decision can be set aside due to inadequate translation. It is, however, always
incumbent on an applicant to establish such inadequacy.
[24]
In
order to do so, the claimed error must be more than trifling. As noted, in Mohammadian
the Court of Appeal held that it is only necessary that an adequate translation
be provided and hence trivial imperfections in translation do not violate
section 14 of the Charter. This Court has often applied this principle
and held that trifling inconsistencies do not amount to a failure of adequate
translation. For example, in Sohal v Canada (Minister of Public Safety and
Emergency Preparedness), 2011 FC 1175 [Sohal], Justice Harrington
stated at paras 22 and 23:
[22] While,
on reflection, the English could have been better, I agree with the IAD that
the language was satisfactory and did not prejudice Mr. Sohal in any way. Let
me give but one example. Mr. Sandhu said in his affidavit at point 25 s.:
Also,
during the questioning of the Claimant, the word ‘evidence’ is consistently
misinterpreted as ‘proof” when there is a specific and exact Punjabi word
available.
[23] This
surely is a distinction without a difference. […]
The errors made in this case are
not of this ilk but, rather, involve significant discrepancies and thus Sohal and cases like
it are inapplicable.
[25]
Where
a significant translation error is made, the case law of this Court is divided
on whether the discrepancies in translation need to be made in respect of
central points in the RPD’s reasoning in order to provide grounds for setting
an RPD decision aside (some cases holding that such materiality is required,
see e.g. Rafipoor at para 10, Nsengiyumva
at para 16; Yousif v Canada (Minister of Citizenship and Immigration),
2013 FC 753; and other cases holding the opposite, see e.g. Zaree at paras 8, 11 and Umubyeyi at
para 9).
[26]
As
already discussed, I believe the second line of cases to be in accordance with
the approach mandated by the Federal Court of Appeal in Mohammadian.
Thus, in my view, once an applicant establishes that there was a real and
significant translation error, he or she is not required to also demonstrate
that the error underpinned a key finding before the RPD decision can be set
aside.
[27]
In
the present case, even if I were not of this view, the decision would
nonetheless be set aside because three of the translation errors involved
central points in the Board’s credibility analysis. Thus, regardless of which
line of authority is applied, this application for judicial review must be
granted as the errors in translation were made in respect of portions of the
applicant’s testimony that the Board used to ground its negative credibility
determination.
[28]
In
this regard, the translator first mistranslated the applicant’s evidence as to
how he was able to evade the guards at the border. He actually testified that
he waited until they were out of sight and earshot, but his evidence was
initially incorrectly translated as being that he waited until a shift change.
The translator later then partially referred to the correct translation when
subsequent questions were asked by the panel member and the RPD found this to
give rise to shifting testimony, when it did not. The RPD relied on these
mistranslations as key points in its credibility analysis as is evident from
the following portion of the decision:
The
panel also finds the claimant’s testimony around the issue of shift change
evolved as he provided it. The claimant testified that he waited for shift
change to cross the river. Later in his testimony, he stated that he listened
to the sound of guards on horseback and he crossed when no guards were around.
When asked to explain his different responses (waited for shift change to
cross; and cross when no one was around) the claimant indicated that he did not
testify that he waited for shift change. The panel verified the recording of
the hearing and finds that the claimant did indicate that he waited for shift
change in order to cross the river. The panel finds the inconsistent testimony
related to his crossing of the river, and the claimant’s insistence that he did
not say that he waited for shift change to cross, undermined the credibility of
the claimant’s allegations that he crossed the river, and further undermined
his credibility as a witness. The panel finds the claimant’s testimony related
to his travel to China was not plausible and therefore undermined the
credibility of his allegations and his claim to being a citizen of North Korea who escaped into China.
[29]
The
unchallenged evidence of Ms. Pak establishes that this
passage is underpinned on a faulty interpretation as she deposes that the
applicant did not offer shifting explanations for this portion of his claim.
The RPD, therefore, based its finding on the faulty translation.
[30]
Similarly,
the RPD made an implausibility finding regarding the applicant’s claim to have
attended university that was premised on an incorrect translation. In the
decision, the Board noted that the documentary evidence established that
children of incarcerated dissidents are denied access to higher education in North Korea. However, the translator mis-interpreted the applicant’s evidence on this
point. Ms Pak deposes that the applicant claimed merely to have attended an
agricultural school, not a university or college. This distinction is relevant
to the Board’s implausibility finding as what the applicant said occurred is
not necessarily contradicted by the documentary evidence.
[31]
Finally,
the errors made by the translator in pronouncing “Ls” in Korean names were also
material to the Board’s decision. The Board premised its negative credibility determination
in large part on the finding that the applicant used the South Korean
pronunciation of “Lee” but then switched to the North Korean pronunciation. The
translator at the hearing said that this had occurred – but she has been shown
to have had considerable difficulty in translating and Ms. Pak deposed that the
translator mistranslated other names with the “L” sound in them, herself
incorrectly using the South Korean pronunciation when the applicant had not
done so. Thus, the basis for the Board’s finding that the applicant changed his
pronunciation of the “L” sound to try to falsely tailor a North Korean accent
is undercut.
[32]
Given
that the Board relied in considerable part upon these findings for its
conclusion that the applicant was not credible, these errors in translation
were material. Thus, even if translation errors must have been made in respect
of evidence that the Board relies on to ground its decision before a decision
will be set aside due to a breach of procedural fairness, such errors exist
here. Therefore, there
was a violation of the applicant’s Charter right to adequate translation,
which necessitates the RPD’s decision being set aside and the applicant’s
refugee claim being remitted to another panel member for a re-determination
based on an adequate translation.
[33]
No
question was proposed for certification under section 74 of the IRPA and none
arises in this case as, in my view, the Federal Court of Appeal has settled the
applicable law in Mohammadian and,
to a large extent, my conclusions rest on the particular facts of the case.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. This
application for judicial review is granted;
2. The August
7, 2012 decision of the RPD is set aside and the applicant’s claim for
protection shall be remitted to a different RPD member for re-determination;
3. No
question of general importance is certified under section 74 of the IRPA; and
4. There
is no order as to costs.
"Mary J.L.
Gleason"
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