Docket: IMM-2526-01
Neutral Citation: 2002 FCT 717
Ottawa, Ontario, this 26th day of June, 2002
PRESENT: THE HONOURABLE MR. JUSTICE BLANCHARD
BETWEEN:
AHMED AZOUZ
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
(a) This is an application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("Refugee Division") dated the 23rd day of April, 2001, in which the applicant Ahmed Azouz was determined not to be a Convention refugee.
Facts
(b) The applicant, Ahmed Azouz, a 56 year old citizen of Morocco, claims to have a well-founded fear of persecution from Moroccan authorities on grounds of political opinion. The applicant states that he was an Imam of a mosque, in which he also taught the Koran. He alleges that in 1991 he was dismissed from his post after he gave a sermon in which he urged support for the victims of the bombing of Al Amariya Orphanage in Irak during the Gulf War. After his dismissal, the applicant claims that he was only allowed to leave his home once a week and was barred from going to the mosque.
(c) The applicant further alleges that on February 14, 1999, when he was returning from a visit with friends in the town of Wagda near the border with Algeria, he was called to the office of the commander of the area who questioned him about the reason for his trip. The applicant alleges that he was detained, interrogated, tortured and accused of contacting armed Islamic groups from Algeria.
(d) Upon his release, the applicant alleges that he was told that he would have to provide the authorities with information on these groups in Algeria.
(e) The applicant alleges that a relative of his, who lives in the United States, arranged for him to obtain a visa for a visit to that country. The applicant left Morocco on the 28 of August, 1999 to travel to the United States. The applicant remained in the United States for a period of approximately nine months and then left for Canada on the 16th of May 2000, arriving on the same day.
(f) The applicant applied for refugee status on the 14th of July 2000.
(g) This matter came before the Refugee Division on February 28, 2001, and on March 16, 2001.
(h) At the first sitting of the hearing, on February 28, 2001, it became evident that the interpreter was not translating the proceedings correctly and at the beginning of counsel's examination of the applicant, the Refugee Division replaced the interpreter.
(i) At the same hearing, the Arabic speaking board member stepped in and on occasion started translating for the interpreter.
(j) The applicant contends that even after the first interpreter was replaced there remained problems with translation at the proceedings which the applicant raises as an issue in this judicial review.
(k) The applicant had requested that Ms. Nashwa Tawfiq attend the proceedings as an observer. Ms. Tawfiq could speak both Arabic and English and was requested by the applicant to observe and report on the quality of the translation.
The Board's Decision
(l) The Refugee Division concluded that there was insufficient credible or trustworthy evidence to find that the applicant was a Convention refugee. In support of its decision, the Refugee Division made the following findings of fact:
(a) The Refugee Division found that the applicant's delay in the U.S. before coming to Canada to make a refugee claim has a negative impact on the well-foundedness of his claim;
(b) The Refugee Division noted that the applicant's evidence was vague and evasive;
(c) The applicant gave evidence that he was placed under house arrest. Later he changed his evidence and stated that he was allowed to leave his house but did not leave more than once a week;
(d) The Refugee Division noted that the applicant's evidence about what he preached in his sermons, which was very vague at the first sitting, became somewhat more precise at the second sitting;
(e) The Refugee Division noted that the political party of which the applicant claimed to be a member was a recognized secular political party with seats in Parliament and therefore did find not credible the applicant's allegation that the authorities were after him because of his political affiliation;
(f) The Refugee Division found it implausible that the applicant would have been able to make arrangements to leave Morocco if he had recently been detained for political reasons.
(m) Issues
(1) Did the Refugee Division err by failing to observe a principle of natural justice or otherwise act beyond its jurisdiction in determining that the applicant is not a Convention refugee, and particularly with regard to the issue of translation on the two hearing dates of this matter?
(2) Whether the Refugee Division's findings on credibility and plausibility were reasonably open to it on the record?
(3) Whether the Refugee Division's decision is based on an erroneous finding of fact made in a perverse or capricious manner or without regard to the material before it?
Analysis
(n) The central issue in this application for judicial review is that of the quality of the translation at the hearing of this matter.
(o) The applicant argues that given the problems with the interpreters the substance of his testimony was not reaching the board and therefore CRDD's findings on credibility and plausibility cannot stand since they may be explained by the faulty translation at the hearing.
(p) The applicant further argues that the Arabic speaking member of the Board, Ms. Aida Graff, went from being impartial to being a player in the arena. The applicant's evidence, which is uncontradicted, is that the Arabic speaking member of the Board at the hearing asked the applicant several questions directly in Arabic. The panel member also stepped in, on more than one occasion, and started translating for the interpreter a particular word.
(q) The applicant also submits that the Arabic speaking member of the Board showed partiality by unfairly denying his observer's request to take notes respecting the translation during the hearing. Such behaviour, according to the applicant, exhibited animosity toward the observer at the second sitting and created a reasonable apprehension of bias.
(r) As a result of these issues raised regarding the translation of the proceedings, the applicant argues that the CRDD breached the principles of natural justice and procedural fairness.
(s) With respect to the issue of translation of the proceedings, I make the following observations:
(a) Upon becoming aware of the problem with the first interpreter, the interpreter was promptly replaced by the CRDD;
(b) Both parties agreed that the first interpreter had to be replaced because the quality of his work was unacceptable. A review of the transcript of the proceedings prior to the replacement of the first interpreter reveals that no significant issues had yet been raised before the Board and that the substantive issues upon which the Board based its decision were before the Board after the designation of the second translator.
(c) That at no time in the proceedings before the Board did counsel for the applicant object to the translation and, according to the applicant's own evidence, despite the fact that the observer had advised counsel of alleged mistakes being made.
d) The applicant did not produce evidence of any instance of an error in translation which was material to the CRDD's decision.
(t) The Federal Court of Appeal in Mohammadian v. Canada (M.C.I.), 2001 F.C. 85 , dealt with the quality of translation before the CRDD. In particular, Mr. Justice Stone positively answered following certified question:
3. Where it is reasonable to expect an applicant to do so, such as when an applicant has difficulty understanding the interpreter, must the applicant object to the quality of translation before the CRDD as a condition of being able to raise the quality of translation as a ground of judicial review? [answered YES]
(u) The learned judge endorsed the following position of Pelletier J. (as he then was) of theTrial Division at paragraph 13 of his reasons:
.....However, complaints about the quality of translation 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.
It will be a question of fact in each case whether it is reasonable to expect a complaint to 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.
(v) In this case, I am of the view that, the question of the quality of the translation should have been raised before the CRDD. Given the problems with the first interpreter, and the fact that an observer had brought to the attention of the applicant's counsel alleged problems with the interpreter, it must have been obvious to the applicant's counsel that there were problems between him and the interpreter. This is a case where it is reasonable to expect that a complaint be made.
(w) The applicant should have raised this issue before the CRDD. His failure to do so then is fatal to his claim now.
(x) The applicant argues that the conduct of the panel member in interceding and providing translation to and from Arabic raised a reasonable apprehension of bias in the mind of the applicant once he became aware of the situation. The applicant also contends that the conduct of the panel member in preventing others in the room from noting and raising omissions and translation issues, raised a reasonable apprehension of bias in the mind of the applicant.
(y) The applicant further argues that the panel member demonstrated animosity toward the observer and that this tension between them during the second hearing day further created a reasonable apprehension of bias in the mind of the applicant as to whether he would receive a fair hearing.
(z) The test for reasonable apprehension of bias is whether an informed person, viewing the matter realistically and practically and having thought the matter through, would think it more likely then not that the decision maker would unconsciously or consciously decide an issue unfairly. [Committee for Justice and Liberty et al. v. National Energy Board (1976), 68 D.L.R. (3d) 716 (S.C.C.).]
(aa) In this case, there is no evidence that the applicant raised an objection at the hearing on the grounds of apprehension of bias. Such an allegation must be raised at the first available opportunity. The courts have held that the issue cannot be raised for the first time in an application for judicial review. [Bourouisa v. Canada (M.C.I.) (22 April 1997), No. IMM-1808-96 (F.C.T.D.) online: QL.]
(bb) I am also satisfied that the fact that one of the Refugee Division members spoke Arabic and intervened occasionally to clarify points of translation does not give rise to any apprehension of bias.
(cc) In my view it would have been desirable to allow the observer to take notes at the hearing. However, at no time during the hearing did the panel member prevent counsel from objecting to the quality of the translation or indeed from raising the issue of bias. These issues were not raised at the hearing.
(dd) On the facts of this case, I am of the view that an informed person, on application of the test stated by the Supreme Court in Committee for Justice and Liberty, supra, would not conclude that there exists a reasonable apprehension of bias on behalf of the panel member.
(ee) In his written submissions, the applicant argues that his inability to obtain a copy of the recording of the proceedings prevents him from demonstrating that the Panel's decision should be reviewed by the Court. The applicant consequently argues that it is a denial of natural justice to be denied the opportunity to show grounds for review.
(ff) In the instant case, I have before me the tribunal record which includes a complete transcript of both hearing days. The applicant argues that the tapes of the second hearing date are needed to verify the adequacy of translation at the hearing. This is confirmed by the affidavit of Haytham Ilrahim Abiu Haydar, one of the observers who attended the hearing.
(gg) I have dealt with the adequacy of translation earlier in these reasons. I concluded that failure to raise the issue before the Refugee Division bars the applicant from raising the issue in this judicial review application. Given this finding, the question of whether or not the applicant has access to the tapes of the proceeding to verify the adequacy of translation can not, at this point, be material to the outcome of this application.
(hh) The standard of review applicable to credibility and plausibility findings of the Refugee Division was determined in Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315, by Décary J.A., to be patently unreasonableness. At paragraph 4 of his reasons, he wrote:
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
(ii) In this case, the Refugee Division based its negative credibility and plausibility findings on contradictions and inconsistencies in the applicant's story and between the applicant's story and other evidence before the Refugee Division.
(jj) I am satisfied that the Refugee Division did not base its findings on plausibility and credibility on irrelevant considerations or that it ignored evidence. I am also of the view that the Refugee Division's inferences and conclusions are reasonably open to it on the record and consequently do not warrant this Court's intervention.
(kk) I am also of the view that it was reasonable for the Refugee Division to find the applicant's delay in claiming refugee status as being conduct inconsistent with a well-founded fear of persecution. [See Assadi v. Canada (M.C.I.) (25 March 1997), Doc. No. IMM-2683-96 (F.C.T.D.).] This finding was reasonably open to the Refugee Division on the record before it.
Conclusion
(ll) I conclude that the CRDD's decision was made with regard for all of the material before it and not on an erroneous finding of fact made in a perverse or capricious manner. The CRDD'S conclusion was reasonably open to it.
(mm) For the above reasons, this application for judicial review will be dismissed.
(nn) The applicant has submitted for my consideration the following questions for certification:
1. Is there a breach of the rules of Fundamental Justice, Natural Justice, or Fairness, when the decision maker forbids observers from bringing to its attention errors of interpretation/translation that arise in the course of the hearing?
2. Is there a duty pursuant to the rules of Fundamental Justice, Natural Justice, or Fairness, for a tribunal decision maker to raise the issue of errors or irregularities in interpretation/translation that arise in the course of the hearing?
3. When a decision maker is conversant in one of the official languages being used at a hearing and as well as the language being used at the hearing by the claimant, does the decision maker have a duty to acknowledge on the record an interpretation/translation errors which could impact on outcome of decision?
4. Does a decision maker who is aware of significant interpretation/translation errors have a duty to advise of these errors to the co-decision maker, who does not understand the language being used by the claimant?
5. Where an observer, conversant in both languages of the hearing, express concern, or tries to express concern, about mistranslation that has occurred during the hearing, does the decision maker have a duty to note such concerns for the record?
(oo) With regard to the first question, I am of the view that this question does not arise on the facts. On the facts, there was nothing to prevent the observers, the applicant, or counsel from raising the issue of the quality of translation at the hearing before the Refugee Division.
(pp) On the applicant's second question, I am also of the view that this question does not arise on the facts. The Court of Appeal in Mohamadian, supra, has established that a Court should intervene if it has reason to doubt that the translation is incompetent as it did in this instance with respect to the first interpreter. In this instance, however, after the removal of the first interpreter, the applicant has not raised an error of significance in the translation that should have been acted upon by the decision maker.
(qq) The third and fourth questions, in my view, do not raise questions of general importance. The general obligation of a tribunal to provide competent translation has been settled by the Court of Appeal in Mohammadian, supra. In this case, a particular member had the ability to assess the competence of the translation, this in my view does not affect the tribunal's general obligation. Further, the alleged errors referred to in the third and fourth questions were not identified by the applicant, consequently, the questions do not arise on the facts.
(rr) The fifth proposed question, in my view, does not arise on the facts. The evidence is that counsel was made aware of the alleged problems with translation and chose not to pursue the issue. Nothing prevented the observers, the applicant, or counsel from raising the issue of quality of translation at the hearing. This was not done.
(ss) I have considered the five proposed questions submitted by the applicant for certification. I have carefully reviewed the written submissions of both parties on the proposed questions and conclude that the circumstances of this case do not give rise to a serious question of general importance as contemplated by section 83 of the Immigration Act. Therefore, I do not propose to certify a question.
ORDER
THIS COURT ORDERS that:
1. The application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated the 23rd day of April, 2001 is dismissed.
"Edmond P. Blanchard"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2526-01
STYLE OF CAUSE: Ahmed Azouz v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 20, 2002
REASONS FOR ORDER AND ORDER: BLANCHARD J.
DATED: June 26, 2002
APPEARANCES:
Marvin Moses FOR APPLICANT
David Tyndale FOR RESPONDENT
SOLICITORS OF RECORD:
Moses & Associates FOR APPLICANT
480 University Ave., Suite 610
Toronto, Ontario M5G 1V2
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
2 First Canadian Place
Suite 2400, Box 36
Exchange Tower
Toronto, Ontario M5X 1K6