Date: 20020108
Docket: IMM-2890-01
Neutral citation: 2002 FCT 17
BETWEEN:
AIME BAGAMBIKI
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
[1] The applicant seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board ("the Board") dated February 19, 2001, in which the Board determined that the applicant was not a Convention Refugee.
[2] The issues are whether the Board breached the principles of fairness by failing to provide a competent translator at the hearing and whether the Board erred in finding that the applicant had not been forcibly conscripted into the Rwandan military in July 1999.
[3] The applicant submits that the Board breached the principles of fairness in failing to provide a competent translator at the hearing and that there were numerous errors in translation made in areas on which the Board made credibility findings against the applicant. The applicant made a complaint two hours into the hearing that he was not understanding the translation. The Board adjourned the hearing and obtained a new translator to complete the hearing and stated that they would have an audit conducted on the applicant's concerns.
[4] Both parties agree that the law in this area is as set out in Mohammadian v. Canada (Minister of Citizenship and Immigration), [2001] 14 Imm. L.R. (3d) 130 (F.C.A.) In that case, Pelletier J. had certified the following questions pursuant to section 83 of the Immigration Act ("the Act"):
Does the analysis developed by the Supreme Court of Canada R. v. Tran supra in relation to the application of s. 14 of the Charter to criminal proceedings apply to proceedings before the CRDD, and in particular:
1. Must the interpretation provided to applicants be continuous, precise, competent, impartial and contemporaneous?
2. Must applicants show they have suffered actual prejudice as a result of a breach of the standard of interpretation before the Court can interfere with the CRDD's decision?
3. Where it is reasonable to expect that an applicant do so, such as when the applicant has difficulty understanding the interpreter, must the applicant object to the quality of the interpretation before the CRDD as a condition of being able to raise the quality of interpretation as a ground of judicial review?
The Court of Appeal answered the first and third questions in the affirmative and the second question in the negative. In this case the applicant complied with the third question since he raised the matter at the hearing at the first appropriate time. However, the question is: was the interpretation provided to the applicant precise and competent? In my view, on the facts of this case, the interpretation was not precise. The errors were not major errors but they were errors in the translation that could have affected the Board's findings with respect to credibility. In my view, an audit of three different five minute segments during the two hours of interpretation is not sufficient to overcome the requirement of precise and competent interpretation when there is an affidavit from a translator indicating that there were errors.
[5] This case is not similar to Varaich v. Canada (MEI) (1994), 75 F.T.R. 143, where the adjudicator was upheld because he had asked the applicant directly what he did not understand and engaged in a relatively lengthy questioning of the interpreter as to his qualifications before concluding he was competent and instructing the hearing to proceed. There was no such questioning of the applicant in the case before me and, as I stated earlier, the applicant did make his concerns known at an early stage. If there had been discussion of the differences at that time, in my view, it would have complied with Mohammadian, supra but these are not the facts before me today.
[6] Accordingly, there was a breach of fairness by not having a translation which was precise and competent and the matter must be returned for reconsideration by a differently constituted Board in these circumstances. In light of my finding with respect to the translation I will not review the finding on whether the applicant had not been forcibly conscripted into the Rwandan military in July 1999, because of the possibility that the translation errors may have affected this finding.
[7] The application for judicial review is allowed. The decision of the Board dated February 19, 2001 is quashed and the matter is returned to the Board for redetermination by a differently constituted Board.
"W.P. McKeown"
JUDGE
TORONTO, ONTARIO
January 8, 2002
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
COURT NO: IMM-2890-01
STYLE OF CAUSE: AIME BAGAMBIKI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, DECEMBER 18, 2001
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: McKEOWN J.
DATED: TUESDAY, JANUARY 8, 2002
APPEARANCES BY: Mr. Robert W. Young
For the Applicant
Mr. Marcel Larouche
For the Respondent
SOLICITORS OF RECORD: Sullivan, Festeryga, Lawlor and Arrell
Barristers & Solicitors
1 James Street South
11th Floor
Hamilton, Ontario
L8P 4R5
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20020108
Docket: IMM-2890-01
BETWEEN:
AIME BAGAMBIKI
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER