Date: 20030808
Docket: IMM-2260-02
Citation: 2003 FC 966
Toronto, Ontario, August 8th, 2003
PRESENT: The Honourable Mr. Justice O'Keefe
BETWEEN:
ZHENBIN ZHAO
YANG CHEN BEI BEI ZHAO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review by Zhenbin Zhao (the "principal applicant") and her dependant, Yang Chen Bei Bei Zhao (Rachel), of the decision of the Immigration and Refugee Board (Appeal Division), dated April 26, 2002, wherein the Board member dismissed the appeal of the departure orders against the applicants dated April 26, 2001.
[2] The applicants submit that the following evidence was before the Board member:
1. The principal applicant and her dependant, Rachel, were born in the People's Republic of China.
2. The principal applicant's immigration application originated in the investor category and was converted into the entrepreneur category. The applicants then entered Canada and were granted landed immigrant status on May 28, 1997.
3. The principal applicant invested a total of over $140,000 in Howon Industries Ltd. ("Howon") for her immigration application of entrepreneur. A receipt was issued by Howon confirming the receipt of CAD $100,000 from the principal applicant. Two cheques from the principal applicant to Mei Ying Yeung, a shareholder and director of Howon, in the amounts of over CAD $20,000 each were also provided by the principal applicant.
4. After the principal applicant discovered the financial difficulties of Howon, she incorporated her own company, Bennett Enterprises Ltd. ("Bennett") on July 28, 1998. She has been the sole owner and operator of Bennett, running a consultation and referral business to purchase goods in Canada for companies in China. With each successive year, the loss of Bennett has been reduced. A part-time employee was employed by Bennett in November 2001.
5. After immigrating to Canada, the principal applicant has purchased two homes and two vehicles in Canada. She is also financing Rachel's university education. The principal applicant has substantial savings in Canada and a sum of money is owed to her in China.
6. The principal applicant's daughter, Rachel, was successfully attending Simon Fraser University as a full time student, just starting her third year there. She was also in a serious relationship with her boyfriend of four years, after having known each other for five years, with the understanding of marriage in one or two year's time.
7. On April 26, 2001, at the inquiry held by the Immigration and Refugee Board (Adjudication Division), the adjudicator made a departure order against the applicants pursuant to subsection 32(2.1) of the Immigration Act, R.S.C. 1985, c. I-2, because they were found to be persons described in paragraph 27(1)(b) of the Immigration Act, supra. It was alleged that the applicants failed to fulfill the conditions required by the entrepreneur category and failed to demonstrate reasons against a departure order.
8. On November 27, 2001 and January 28, 2002, hearings were held in the Immigration and Refugee Board (Appeal Division), on appeal against the departure orders issued against the applicants on April 26, 2001.
[3] The applicants' counsel requested an interpreter proficient in Chinese (Cantonese) be provided for the hearing.
[4] The applicants state the issues to be:
1. The Board member failed to observe a principle of natural justice, procedural fairness or other procedure she was required by law to observe, by denying the applicants a competent interpreter at the appeal hearings on November 27, 2001 and January 28, 2002, contrary to section 14 of the Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
2. The Board member erred in law in making the decision by failing to accurately interpret and apply paragraph 27(1)(b) of the Immigration Act, supra.
3. The Board member based the decision on erroneous findings of facts that she made in a perverse or capricious manner or without regard for the material before her, disregarding paragraph 70(1)(b) of the Immigration Act, supra.
4. The Board member failed to observe the principles of natural justice, procedural fairness or other procedures she was required by law to observe, by denying the principal applicant's dependant, Rachel, to be present for part of her own hearing at the appeal hearings on January 28, 2002.
5. The Board member refused to exercise her jurisdiction by dismissing the appeal of the deportation order, having regard to all the circumstances of the case, and as a result exerted "cruel and unusual" treatment on the applicants, contrary to section 12 of the Charter of Rights and Freedoms, supra.
Relevant Statutory Provisions
[5] The relevant sections of the Immigration Act, supra state:
|
27. (1) An immigration officer or a peace officer shall forward a written report to the Deputy Minister setting out the details of any information in the possession of the immigration officer or peace officer indicating that a permanent resident is a person who
. . .
(b) if that person was granted landing subject to terms and conditions, has knowingly contravened any of those terms or conditions;
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27. (1) L'agent d'immigration ou l'agent de la paix doit faire part au sous-ministre, dans un rapport écrit et circonstancié, de renseignements concernant un résident permanent et indiquant que celui-ci, selon le cas:
. . .
b) a sciemment contrevenu aux conditions dont était assorti son droit d'établissement;
|
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70. (1) Subject to subsections (4) and (5), where a removal order or conditional removal order is made against a permanent resident or against a person lawfully in possession of a valid returning resident permit issued to that person pursuant to the regulations, that person may appeal to the Appeal Division on either or both of the following grounds, namely,
(a) on any ground of appeal that involves a question of law or fact, or mixed law and fact; and
(b) on the ground that, having regard to all the circumstances of the case, the person should not be removed from Canada. |
70. (1) Sous réserve des paragraphes (4) et (5), les résidents permanents et les titulaires de permis de retour en cours de validité et conformes aux règlements peuvent faire appel devant la section d'appel d'une mesure de renvoi ou de renvoi conditionnel en invoquant les moyens suivants:
a) question de droit, de fait ou mixte;
b) le fait que, eu égard aux circonstances particulières de l'espèce, ils ne devraient pas être renvoyés du Canada. |
Applicants' Arguments
[6] The applicants submit that the Board member erred in finding that the applicants failed to comply with all of the terms and conditions of their landing and thus failed to comply with paragraph 27(1)(b) of the Immigration Act, supra.
[7] The applicants submit that the Board member disregarded paragraph 70(1)(b) of the Immigration Act, supra by making a decision without regard to the facts before her.
[8] The applicants submit that the Board member failed to observe a principle of natural justice or procedural fairness by failing to provide proper interpretation at the hearing. The applicants state that this is contrary to section 14 of the Charter of Rights and Freedoms, supra.
[9] The applicants submit that the principal applicant's dependant was denied procedural fairness when she left the hearing room and was unable to re-enter for a period of time, thus missing part of the hearing.
[10] The applicants submit that the continued existence of the departure order is a breach of section 12 of the Charter of Rights and Freedoms, supra.
Respondent's Submissions
[11] The respondent submits that the Court should not interfere with Appeal Division decisions unless the decision was not made bona fide and uninfluenced by irrelevant consideration, or if it was made arbitrarily or illegally.
[12] The respondent submits that the Board made no error in declining to grant discretionary relief in the circumstances of this case.
[13] The respondent states that the Board did not make any material errors of fact in its decision. Any factual errors made were not material to the outcome of the case.
[14] The respondent submits that the applicants have failed to establish that they were prejudiced by any errors of interpretation at the hearing.
[15] The respondent further submits that there is no evidence that the principal applicant's dependant was denied the right to be present at her hearing. It is submitted that the principal applicant's dependant left the hearing room without telling the Board member, and as soon as the Board member discovered she was not in the room, the Board member made inquiries and had her return to the hearing room.
[16] The respondent also submits that no breach of section 12 of the Charter of Rights and Freedoms, supra occurred as deportation per se is not cruel or unusual punishment.
Analysis and Decision
[17] Issue 1
Did the Board member fail to observe a principle of natural justice, procedural fairness or other procedure she was required by law to observe, by denying the applicants a competent interpreter at the appeal hearings on November 27, 2001 and January 28, 2002, contrary to section 14 of the Charter of Rights and Freedoms, supra.
In Mohammadian v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 371 (T.D.), aff'd [2001] 4 F.C. 85 (C.A.), Pelletier J. (as he then was) summarized the principles with respect to interpretation as follows at pages 376 to 377:
The elements of the constitutionally guaranteed standard are briefly described below:
- 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.
If a breach of this standard is shown, the accused does not have to show that he has been prejudiced by the breach . . .
[18] I have reviewed the transcript of the hearing. The following excerpt from the cross-examination of the principal applicant indicates some of the problems with the interpretation (tribunal record, page 61):
Q The documents show you had an incorporation cost of $1,070.
A I purchased things in.
Q Did you put about $2,700 into the company that the company that the company now owes you? Do you remember that?
INTERPRETER: 20,000?
MR. BULMER: $2,700 roughly.
Q Do you remember that?
A That's the money for purchasing stuff.
MR. LI: I'm sorry to interrupt here. Madam Chair, there's a problem in - - in the translation as well. We're talking about (indiscernible) cost and then it was interpreted as the cost of buying something else and they talk about $27,000 and then you are talking about $2,700 something. There's a lot of confusion in the communication itself.
PRESIDING MEMBER: Yes, it is. It is confusing and I'm sure confusing to the appellant as to where we're going.
[19] I am satisfied from this excerpt and other examples in the transcript that the applicants did not receive the standard of interpretation required by the law. The Board member made reference to the fact that there was confusion in the communication and that it was confusing to the applicant. The Board's decision must therefore be set aside and the matter remitted for a new hearing before a different panel of the Appeal Division.
[20] Because of my finding on this issue, I will not deal with the remaining issues.
[21] Because of the basis for the decision, neither party wished to propose a serious question of general importance for certification.
ORDER
THIS COURT ORDERS that the application for judicial review is allowed and the matter remitted for a new hearing before a different panel of the Appeal Division.
"John A. O'Keefe"
___________________________
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2260-02
STYLE OF CAUSE: ZHENBIN ZHAO and YANG CHEN BEI BEI ZHAO
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: Wednesday, March 5, 2003
REASONS FOR ORDER
AND ORDER OF: O'KEEFE J.
APPEARANCES:
Peter S. K. Li
For the Applicants
Sandra Weafer
For the Respondent
SOLICITORS OF RECORD: Peter Li & Company
#110 - 4400 Hazelbridge Way
Richmond, British Columbia
V6X 3R8
For the Applicants
Morris Rosenberg, Q.C.
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT
Date: 20030808
Docket: IMM-2260-02
BETWEEN:
ZHENBIN ZHAO
YANG CHEN BEI BEI ZHAO
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
AND ORDER