Date:
20130925
Docket:
IMM-11896-12
Citation:
2013 FC 981
Ottawa, Ontario,
September 25, 2013
PRESENT: The
Honourable Madam Justice McVeigh
BETWEEN:
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MOISES EDGARDO SEGOVIA BATRES
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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
Judicial Review is before the Court because of concerns that erroneous
translation led the Board to make material adverse credibility findings.
[2]
For
the following reasons, this Judicial Review application is granted.
I. Facts
[3]
This
Applicant seeks judicial review of the decision of the Refugee and Protection
division (the RPD) of the Immigration and Refugee Board (the Board), dated
October 25, 2012. The Board refused the Applicant’s application for refugee
protection as he fell under subparagraph 97(1)(b)(ii) of the Immigration and
Refugee Protection Act, SC 2001, c 27 (the IRPA) exception, and faces a
generalized risk if returned to El Salvador.
[4]
The
Applicant is a citizen of San Salvador and alleges he is on the hit list of the
Mara Salvatrucha (MS13). He submits the Mara tried to recruit him in 2000, and to
avoid joining, he had to drop out of school and move. He fled to the United States as his father is an American Citizen. He alleges his father was going to
legalize his status in the United States, so he did not file his claim there within
the American one year filing deadline. In 2004, his uncle was a witness for the
prosecution of members of the MS13. His uncle’s role was the motivation for
revenge by the MS13 and members of his family had to leave the City they lived
in. In 2009, the Applicant was unsuccessful in his United States asylum claim. He
then left the United States and upon arrival to Canada, he made a refugee
claim.
[5]
The
Board found that the determinative issue was generalized risk; however, the Board
also analyzed credibility. The Board found the Applicant not to be credible and
that there was no risk to the Applicant from his uncle’s involvement with the
police investigation and prosecution of the MS13. The Board found him to have a
generalized risk from the attempt at forcible recruitment by the MS13.
[6]
Barbara
Duffus, an independent certified interpreter, reviewed the recording of the
refugee hearing and filed an affidavit where she noted several errors in
mistranslation from English to Spanish and from Spanish to English by the
interpreter at the hearing.
II. Issue
[7]
Was
there a breach of procedural fairness in the translation at the hearing?
III. Analysis
A. Waiver
[8]
The
parties agree that waiver could not have occurred as the Applicant did not
speak English and could not have known he was not being translated properly
until the tapes were reviewed by another interpreter.
B. Standard of Review
[9]
The
jurisprudence has established that the applicable standard of review is
correctness for a breach of natural justice and procedural fairness (Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12; Dunsmuir v New Brunswick, 2009
SCC 9).
C. The Legal Test
[10]
The
Federal Court of Appeal in Mohammadian v Canada (Minister of Citizenship and
Immigration), 2001 FCA 191 (FCA) [Mohammadian] at para 4,
found that “interpretation provided to applicants before the Refugee Division
must be continuous, precise, competent, impartial and contemporaneous.” This
allows the Applicant to tell his or her story.
[11]
The
standard of interpretation is high but does not need to be perfect, it is
linguistic understanding (R v Tran, [1994] 2 S.C.R. 951 [Tran]; Singh
v Canada (Minister of Citizenship and Immigration), 2010 FC 1161 at para 3)
[12]
However,
where there are errors in translation, the errors must be material to the Board’s
credibility findings (Huang v Canada (Minister of Citizenship and
Immigration), 2003 FCT 326 at para 16, Sherpa v Canada (Minister of Citizenship and Immigration), 2009 FC 267at paras 59-60).
[13]
If
a breach of this standard is shown, it is not necessary to show actual
prejudice (Tran, above, Mohammadian, above).
D. Material Translation
Errors
[14]
When
the affidavit of the reviewing interpreter is compared with the transcript, it
is clear that the translation errors led to confusion in the Applicant’s
testimony. The translation errors were numerous, but not all were material to
the credibility findings of the Board. The decision as a whole must be assessed
to determine if the Applicant was denied procedural fairness. The number of
errors is immaterial but the fact that they were material errors that were the
foundation of negative credibility findings is important to the decision as a
whole. The errors in the translation were central to the Board member finding that
the Applicant’s testimony was not credible and confusing.
[15]
The
Supreme Court of Canada has attached a high importance of the right to
interpreter assistance given by the Canadian Charter of Rights and Freedoms,
Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act
1982, being Schedule B to the Canada Act 1982, c 11 under section 14 (Tran,
above).
[16]
Comparing
the document prepared by the certified court interpreter and translator Barbara
Duffus, which sets out the mistranslations made by the interpreter at the
hearing in the transcript, it is easy to see why the Board member found the
Applicant’s answers internally inconsistent and confusing.
[17]
By
way of example, the translation of “pendiente” from Spanish to English, was
translated by the interpreter at the hearing as meaning “pending” rather than
its meaning in this context as “hit list”. This word was material to the case
so much so that the Board member quoted it in his decision. This word was
mistranslated several times throughout the hearing. This led to the Board
member concluding that “…there is no mention of anyone looking for the claimant
on an ongoing basis” even though the Applicant’s actual answer was that the
MS13 still had him on their hit list. Paragraph 13 of the decision states “…When
the claimant was asked the question again, he recanted his testimony, and provided
confusing testimony, repeating that gangs ask for his uncle, and say that the claimant
is 'pending'”.
[18]
At
paragraph 13 the decision maker stated “…Later in questioning the claimant said,
'in my country, people don’t get involved', suggesting that it is a choice not
to report. In any event, the claimant’s evidence in this area was never
clarified, despite further questioning.”
[19]
Another
material error was made during the Board member’s inquiry into why the Applicant
did not go to the police for assistance. The interpreter translated the Spanish
word for police to the Board member as “people”.
Time: English Dialogue Spanish
dialogue
00:31:35 Interpreter: Claimant:
In my
country people In my country, the police do
do
not get involved not get involved in these
in
things until things things until things happen,
happen,
then they then they may want to do
may
want to do something. something.
[20]
These
examples are provided as illustrations of the mistranslations that were relied
on by the Board member which led to a breach of the Applicant’s right to procedural
fairness.
[21]
In
no way is this Court saying that with proper translation the Board would have
found the applicant to be a credible witness. Indeed, with proper translation
the Board may still have found Applicant’s testimony confusing and not credible.
But, the Applicant deserves to have his story told. The Board must make its
decision on the Applicant’s story properly translated. Further, the questions
asked by the Board member to the Applicant must also be properly translated, so
that he can answer the questions.
[22]
In
conclusion, the Court finds that there was a breach of procedural fairness. As
a result of this finding, it is unnecessary to deal with any other issues that
were raised.
[23]
Neither
party proposed a question for certification, and none arises in this case.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. This
application for judicial review is granted, the Board’s decision is quashed and
the matter is to be referred back for a new determination before a differently
constituted panel.
2. There is no serious
question of general importance to certify.
"Glennys L.
McVeigh"
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