IMM-1952-97
VANCOUVER, B.C. March 4, 1998
(Before the Honourable Mr. Justice Campbell)
BETWEEN:
EL-MENOUAR MANDI, REDA MANDI, FATMA MANDI, NASSIM MANDI, LEILA MANDI and LUISE INGEBORG MANDI,
Applicants,
-and
MINISTER OF CITIZENSHIP AND IMMIGRATION,
Respondents.
MR. G. GOLDSTEIN, Appearing for the Applicants;
MS. B. CARBONELL, Appearing for the Respondents.
REASONS FOR ORDER
CAMPBELL, J. (Orally):
Two separate issues have been raised by Mr. Goldstein which I find do raise a credible argument for setting aside the order in this case, being the omission from the hearing of the three minor applicants, and problems with interpretation. In the hearing the mother acted as the designated representative of the minor children, having been so appointed pursuant to Rule 11. This was done with the consent of the counsel who acted for all applicants, being the father, the mother, one adult child, and the three minor child applicants.
It is not contested that less than 50 per cent of the way through the hearing the following exchange took place, which occurs at page 62, line 29 of the Tribunal Record:
"PRESIDING MEMBER: Counsel, maybe we can let the children go out. Maybe we could let the children -
COUNSEL: Yeah, I was about to ask Mrs. Mandi, could we ask if -PRESIDING MEMBER: I think it recalls bad memory and I do not think we want to have them go through this.,,
Following this exchange, the evidence of the mother continued.
While this passage shows some concern by the Presiding Member for the sensibilities of the children, I find that this action required that more needed to be done before it was taken. First, counsel indicates that he was about to ask the mother if she wanted the children removed. He did not do this. Secondly, the Presiding Member did not ask the mother if she wanted the children removed. And thirdly, and most importantly, no one asked the children if they wanted to be removed. It is important to note that these three minor children are not of tender years, being ages 16, 15 and 12. In my opinion, regardless of the fact that they are minors, they should have been asked.
In the supplementary affidavit filed, the children objected to not being asked to give evidence. While this might be something within the exclusive control of counsel who acted on their behalf, surely their right to be present during the hearing at least requires that they be given an opportunity to object to being removed.
I do not take the mother's or their silence to be an agreement to being removed from the hearing, given the power imbalance between the children and the adults in the decision making
process present at that time, and also the power imbalance between the mother and the presiding member at the point when the exchange took place. I would not have expected, given these circumstances, that an objection would have been raised, so the duty really arises to be sure rather than make assumptions.
This failure takes on real importance when I consider the evidence regarding the inaccurate interpretation. The adult child, Leila, who is age 20, says in her supplementary affidavit at paragraph 5 as follows:
"As a result of the poor quality of the interpretation, a great deal of relevant evidence was not conveyed to the panel. The panel seemed to take the attitude that it was more important to hurry the proceedings along rather than take the necessary steps and the necessary time to get all the relevant facts in our case."
The important passage is "a great deal of relevant evidence was not conveyed to the panel." The evidence and argument today shows without contest that Leila is a person who is fluent in both German and English. The language problems that she is testifying to are language
problems in the interpretation between German and English. Indeed, the hearing involved French interpretation as well, but that is not an issue here.
I put weight on Leila's statement which is unchallenged as it is unsubstantiated by the fact that during the course of the hearing the mother also objected to the quality of the interpretation. As a result, I find that the whole proceeding is tainted.
In particular, the failure to accurately interpret, impacts adversely on the children's application. Paragraph 3 of Leila's affidavit is as follows:
"It then also became apparent to the tribunal that the interpreter was inadequate. The quality of the interpretation being given was so poor that the board members became visibly exasperated with the interpreter. The chairman of the panel noticed that I was becoming very concerned over what was being interpreted. I told him that the interpreter was not translating everything which my mother was saying. For instance, instead of literally translating the insults which my mother
was subjected to in Germany, such 'bitch' and 'whore,' the interpreter would say that she was called bad names."
The evidence of the children was accepted regarding racist insults towards them. However, the tribunal characterized this as discrimination rather than persecution.
Given the fact that there is cogent evidence of faulty interpretation of key hate words, and given the fact that the children were not present for 50 per cent of the evidence, a real concern arises as to whether the tribunal got accurate evidence on which to base its conclusion. While the children were not called to testify, they were not even present to voice any potential objection even through their counsel.
The suggestion has been made that it is for the applicants to prove the faulty interpretation by paying for an "expert" interpreter to listen to the tapes of the proceeding and then identify the places where some inaccuracy has occurred. The law which counsel both agreed to is that it must be apparent that any error in interpretation causes some prejudice to the applicants.
On the face of the record, I find that the faulty interpretation does prejudice the
application of the mother, father and the children. And I frankly do not believe that it is reasonable to put the applicants to the burden of further proving that it exists.
Accordingly I find that an error in due process has occurred and, accordingly, I set this order aside.
The matter is referred to a newly constituted panel for rehearing with the directions that: all efforts be made to have counsel for the applicants agree in advance to the interpreters being used; none of the applicants be omitted from the hearing without their express wish to be so omitted; and all the children be asked by the tribunal if they wish to testify, and that they be allowed to do so if they so signify.
I HEREBY CERTIFY THAT THE FOREGOING is a true and accurate transcript of the proceedings herein to the best of my skill and ability.
W.G. Bemister COURT REPORTER
FEDERAL COURT OF CANADA TRIAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: IMM-1952-97
STYLE OF CAUSE: EL-MENOUAR MANDI and others v. MCI
PLACE OF HEARING: VANCOUVER, BC
DATE OF HEARING: FEBRUARY 24, 1998 REASONS FOR ORDER OF MR. JUSTICE CAMPBELL DATED: MARCH 4, 1998
APPEARANCES:
MR. GERALD GOLDSTEIN MS. BRENDA CARBONELL
FOR THE APPLICANT FOR THE RESPONDENT
SOLICITORS ON THE RECORD:
MR. GERALD GOLDSTEIN
FOR THE APPLICANT
MS. BRENDA CARBON-ELL
Mr. Morns Rosenberg FOR THE RESPONDENT Deputy Attorney General of Canada