Date: 20000529
Docket: IMM-1941-99
BETWEEN:
ELENA KOMPANETS
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
MacKAY J.
[1] This is an application for judicial review of a negative decision of a visa officer based at the Canadian Embassy in Warsaw, Poland. The applicant and her husband applied for permanent residence in Canada and were interviewed at the Canadian Embassy in Warsaw on January 5, 1999. In a letter dated March 2, 1999, the applicant was informed that she had insufficient points to receive an immigrant visa. The primary applicant, Ms. Elena Kompanets, received 69 of the 70 points required.
[2] In addition to an Order to quash the decision and mandamus to order a second "hearing (interview) interpreted by an independent, competent professional/accredited interpreter who is not an employee of the Canadian Embassy", the applicant also requests that this Court certify two questions concerning arrangements for interpreters at interviews of applicants for immigrant visas for the Court of Appeal pursuant to section 83 of the Immigration Act .
[3] The applicant is a 34-year old citizen of the Russian Federation. She made an application for a permanent resident visa on behalf of herself, her husband and her daughter on May 8, 1998. The Canadian Embassy in Warsaw, Poland, invited her to an interview to be held on January 5, 1999. The invitation contained the following paragraph:
| Please note that if we find that you are not able to communicate in English well when you come for an interview and no interpreter has been arranged, you would have to be re-scheduled for a second selection interview approximately eight months from the date of the first interview. Please advise therefore if you need us to arrange for an interpreter. Interpreter's expenses must be entirely financed by you ($120 US for interpretation lasting no longer than two hours - to be paid in cash after the interview). |
[4] On December 31, 1998, after the Embassy had closed for the long weekend, a fax message arrived at the Embassy in Warsaw, requesting that an interpreter be arranged for the interview. Because the Embassy was closed on January 1, and the 2nd and 3rd were a weekend, the fax was not read until January 4, 1999, the day before the interview. According to the affidavit of the visa officer, an interpreter was arranged for but then failed to appear at the time of the interview.
[5] When the professional interpreter did not appear, the visa officer relied upon one of his colleagues, a locally-engaged immigration officer to act as an interpreter. According to the interviewing visa officer, two of the staff members at the Embassy were fluent in Russian and they acted as interpreters when necessary. According to the applicant's affidavit, in this case the interpretation and translation provided by local staff members was inadequate:
| 17. A translator was present during the Interview. During the course of the Interview, however, it became apparent to me that the translator's grasp of the Russian language was poor. My responses to the Officer's questions, as well as my husband's responses, were often lengthy and detailed, sometimes lasting approximately five minutes. The Officer's questions, which at times were lengthy, were translated as one brief question. The translator's translations, however, were curt and poor, and clearly inaccurate and incomplete. The translator frequently translated our five-minute responses into one or two short phrases. |
| 18. At the conclusion of the interview, I attempted to pay the translator for his services as required. The translator refused to accept any money, however, stating in broken Russian, that he was not a real translator and that I was therefore not required to pay him. |
[6] The Embassy employee who was relied upon to translate at the interview is not a certified interpreter, nor is there evidence that he has equivalent training or background. From the affidavit evidence of the visa officer, the interpreter was born in and grew up in Poland. Until 1989, all Polish students were required to learn Russian in school. He thus took eight years of Russian in school. He translates documents for the Embassy, has acted before as an interpreter in immigration cases and has acted as the visa officer's interpreter on a trip to Belarus. The visa officer swears that he has no doubt that the interpreter "interpreted fully and accurately every thing that I said." But the applicant points out, the visa officer is unable to speak or understand Russian and is unable to test the interpreter's facility with the Russian language. I note that the applicant did not take issue with the interpretation at the time of the interview and only raised it as an issue after the application for a visa was refused. The applicant argues that the inadequate translation at the interview resulted in a violation of natural justice and procedural fairness, warranting intervention by this Court. To this end, the applicant cites Porras v. Canada (M.C.I)1, where Mr. Justice Pinard found that the applicants were unable to fully present their cases to the Convention Refugee Determination Division because of translation problems. There the situation was found to be a denial of procedural fairness that warranted the intervention of the Court. The respondent distinguishes Porras, on the basis that the translation problems were clear from the record while here there is no record of the interview itself, apart from the officer's CAIPS notes made at the time and there was no indication that the applicants had then raised an issue of translation services. Nor did that issue get raised by the applicant before the decision was made.
[7] The respondent argues there is no credible evidence that there were any significant problems with the translation provided by the Embassy employee. It is urged that the failure to raise any translation issues at the time of the interview is fatal to the complaint2 and that this Court has, in the past, tacitly approved of the use of Embassy employees as interpreters during visa interviews.3
[8] The applicant argues that using an Embassy employee who is an immigration programme officer created a reasonable apprehension of bias. To paraphrase Mr. Justice Cory in R. v. R.D.S.4, the test is whether a reasonable and objective person, viewing the situation thoroughly and dispassionately, would conclude that there was a reasonable basis for considering that the translator would be biased against the applicant.
[9] Neither the applicant nor the visa officer have sufficient facility with English or Russian, respectively, to be able to tell whether the translation was adequate or whether it was not. There is no evidence before the Court from the translator himself. The applicant's principal assertion is that the translating by the staff member was marked by long questions to, and answers by, her and her husband which were translated into much shorter form. While it is possible that the translator was condensing the questions and answers there is no evidence that was prejudicial to them. While one does not have to show actual bias or the effect of bias on the final decision, there must be some evidence that would provide a basis for finding a reasonable apprehension of bias. Where criticism of the interpretation service is raised only after the application is refused and no solid base or evidence of its inadequacy is provided, particularly where the service has been used before without complaint, the Court has no basis to support intervention dependant on a finding of inadequacy of interpreting services.
[10] The applicant also alleges that the visa officer made an error in the evaluation of the category of "personal suitability". Insufficient weight was given to a number of factors, according to the applicant. First, the applicant argues that she showed a high degree of adaptability by taking a degree in economics to adapt to the changing economic conditions of Russia. In addition, it is alleged that the visa officer erred by not giving sufficient weight to the applicant's ability to support herself upon arrival in Canada.5 A one year visit to Canada, it is argued, is highly suggestive of more than the average level, which the units assigned reflected, for adaptability, resourcefulness, initiative and motivation. It is also argued that the visa officer should have brought any concerns about her adaptability to the attention of the applicant so those could have been addressed before the decision was made. By his affidavit the visa officer states that at the conclusion of the interview he did indicate that her ability in the English language was a matter of concern and that he had assessed her personal suitability as average. The applicant was given an opportunity to provide further information but did not do so before the letter of refusal was prepared and sent two months after the interview.
[11] The factor of personal suitability and the points awarded for it is a matter within discretion on the part of the visa officer. There was evidence before the visa officer regarding the visits of the applicant and her husband to Canada. There was also evidence of the resources available to them. These were referred to in the CAIPS notes made by the visa officer. There is nothing in the record or in the argument raised on this application to lead to a conclusion that there was no reasonable basis for the visa officer to assess the applicant as he did. Reasonable people may disagree on the points awarded, but significant deference must be accorded to the visa officer's discretionary finding of fact. No error of law or of jurisdiction has been shown and the finding on personal suitability should not be interfered with.
[12] As for the issue of whether the visa officer should have brought any concerns to the attention of the applicant so they could be addressed, I have noted the visa officer's affidavit evidence that he did indicate concern about his ability in English and the assessment of her personal suitability as average, and that he was provided no further information. Even if that opportunity were not given, it is my opinion that the visa officer did not violate any principle of natural justice or procedural fairness. From the record, it appears that the visa officer, in his interview, covered a wide range of issues, many of which were relevant to personal suitability. The applicant had an opportunity during the conversation on these points to bring favourable information to his attention. The applicant was also invited to submit any further materials or information following the interview. No further submissions were made. It is my opinion that there was no denial of procedural fairness or violation of the principles of natural justice.
[13] In written submissions for the applicant it is urged that the visa officer also did not properly assess the applicant's dependent husband's application for permanent residence. I am not persuaded that this issue is relevant in review of the assessment of Ms. Kompanets' application.
Conclusion
[14] It is my opinion that this application is to be dismissed. I do not find that the visa officer committed any error that would warrant intervention by the Court.
[15] The applicant requested that the Court certify two questions, set out above in paragraph [2], for consideration by the Court of Appeal, pursuant to ss. 83(1) of the Immigration Act. It is my opinion that the questions proposed do not reflect the facts as I have found them but a revised question in the following terms, reflecting facts here found is a serious question of general importance, which the Order now issued certifies pursuant to ss. 83(1).
| Is it a breach of procedural fairness for a visa officer, without first obtaining consent of an applicant for permanent residence in Canada, to rely upon a colleague from the staff at a Canadian mission abroad for services as an interpreter at an interview of the applicant, where the staff member relied upon does not have professional qualifications as an interpreter? |
(signed) W. Andrew MacKay
___________________________
JUDGE
OTTAWA, Ontario
May 29, 2000
__________________1 [1999] F.C.J. No. 194 (T.D.).
2 Zhu v. Canada (M.C.I.), [1997] F.C.J. No. 620 (T.D.); Wai v. Canada (M.C.I.) (1996), 35 Imm. L.R. (2d) 173 (F.C.T.D.).
3 Wai v. Canada (M.C.I.), (1996), 35 Imm. L.R. (2d) 173 (F.C.T.D.)
4 [1997] 3 S.C.R. 484.
5 The application form states that the couple has a net worth of US $180,000.