Date: 19981029
Docket: IMM-4727-97
BETWEEN:
GUSTAVO ADOLFO OCAMPO PRADO
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
DUBÉ J:
[1] This application is for the judicial review of a decision of the Immigration and Refugee Board (Refugee Division) ("the Board") dated October 10, 1997, denying refugee status to the applicant. He arrived in Canada on September 26, 1995, and applied for refugee status on the ground of a well-founded fear of persecution based on his political opinion. More specifically, he asserted that he would be persecuted by the Sandinistas because he leaked documents relating to human rights abuse by the Sandinistas in 1986.
[2] The applicant first made his application in Montréal, Québec, where a Legal Aid lawyer assisted him. His Personal Information Form ("PIF") was translated from Spanish to French. The applicant moved to New Brunswick and a hearing before the Board was held at Saint John, N.B. New Brunswick does not provide legal aid for refugee matters. An employee of the Canadian Red Cross, Ms. Letetia Adair endeavoured to assist him but the PIF was not translated into English.
[3] The applicant speaks Spanish and some English but has no knowledge of French. Ms. Adair does not speak French and the translator from Spanish to English does not speak French. It does not appear that the members of the Board are fluent in French as they had to obtain the translation of the word "parents" into English from the Refugee Claim Officer. Yet, the French PIF was used at the hearing against the English translation of the evidence given in Spanish by the applicant. It was specifically used to establish a contradiction between what the applicant apparently said in his PIF against his oral evidence at the hearing.
[4] The applicant complains that neither his assistant at the hearing nor the translator could ascertain whether the comparisons were correct. The Board made specific findings of credibility based partly on the PIF and partly on the oral evidence of the applicant.
[5] The applicant, through his Montréal solicitor, did select the French language for a proposed Montréal hearing, but as the hearing was held in English at Saint John, N.B., the Board ought to have ensured that such a key document as the PIF be translated into English. Under section 14 of the Canadian Charter of Rights and Freedoms, a party to a proceeding has the right to the assistance of an interpreter. Clearly, that section is infringed when neither the interpreter nor the applicant or his assistant understand the official language of one of the key documents. While it could very well be that the Board would have come to the same conclusions if the PIF had been translated into English, nevertheless, it was manifestly unfair to place the applicant in such a situation.
[6] Consequently, the matter is referred back to another Board composed of different members for a rehearing based on a certified English translation of the applicant's PIF.
[7] Counsel for the respondent has requested that the following question be certified under subsection 83(1) of the Immigration Act. Counsel for the applicant has agreed and so do I:
| "Where a change of venue has been granted to a Convention refugee which results in a change of the official language to be used at the hearing, but where the claimant does not request that any documentation be translated from the original official language into the second one, is it a breach of natural justice, procedural fairness, or section 14 of the Charter for the CRDD to examine the claimant on any information contained in any of the documents which have not been translated from the original into the second official language?" |
OTTAWA, Ontario
October 29, 1998
Judge