Federal Court Decisions

     IMM-3136-96

B E T W E E N:

     HAQUE, AZIZUL

     HAQUE, ZENATH

     HAQUE, ESRATH

     HAQUE, MASUDA

     Applicants

     - and -

     THE MINISTER OF CITIZENSHIP AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

LUTFY J.:

     The sole issue raised in this application for judicial review is the accuracy of the interpretation of the testimony during the hearing of the applicants' claims for refugee status. The applicants are the parents and two minor children of the same family. The Convention Refugee Determination Division ("the Tribunal") concluded that the father's ("the principal applicant") testimony concerning the events leading up to the family's departure from Bangladesh was not credible and determined that the applicants were not Convention refugees.

     The Tribunal's findings concerning credibility are stated in clear and unmistakable terms and are not contested in this judicial review. The applicants, however, rely on the report of a second official Bengali interpreter ("the report") which questions the quality of the communication between the principal applicant and the person who provided the interpretation during his testimony.

     The respondent's counsel, in her thorough submissions, challenges the report on several grounds. The report was filed as an exhibit to the affidavit of the principal applicant. As a result, the author of the report was, in the view of the respondent, sheltered from cross-examination.¹ The respondent also submits that the applicants have waived any right to challenge the competence of the interpretation because of their failure to do so at any time during the hearing, or immediately thereafter, and because of the principal applicant's acknowledgment at the outset of the hearing that he and the interpreter understood each other.² Finally, the respondent characterizes the report's criticisms of the interpretation as a microscopic examination of the transcript which raises nothing other than minor errors and omissions unrelated to the substance of the Tribunal's decision.

     I have read the report and have reviewed the transcript, particularly those portions relating to the alleged errors and omissions in the interpretation. Concerning the error which the applicants characterize as the most important of those highlighted in the report, the principal applicant may have misunderstood the question of the Refugee Hearing Officer as to why he had not contacted his lawyer in Bangladesh concerning the issuance of a warrant for his arrest in the month prior to his departure for Canada. However, in the exchange immediately following the question in issue, the principal applicant answered that he never communicated with his lawyer in Bangladesh because his father had done so on his behalf. This response reflects what the principal applicant intended to communicate. In making its negative finding of credibility and concluding that no arrest warrant was issued, the Tribunal understood and noted in its reasons that "...[t]he claimant said he did have an attorney but ... has not communicated directly with [him]." Accordingly, any problem in interpreting the first question had no impact on the thrust of the principal applicant's testimony on this issue or on the Tribunal's understanding of his evidence.

     The applicants rely on two other discrepancies in the interpretation. Neither, in my view, is material. The apparent omission of the specific date of the principal applicant's release from jail was unequivocally clarified in the immediately following responses. Similarly, I conclude after a reading of the relevant questions and answers that the claimant acknowledged that persons within his own political party would resort to the use of force.

     Substantially all, if not all, other discrepancies mentioned in the report are acknowledged by its author to be minor, somewhat lacking in precision or subsequently corrected. I find that none is material to the hearing and the Tribunal's decision.

     The errors and omissions listed in the report are not of the kind to have caused prejudice to the applicants.³ Without deciding whether the decision of the Supreme Court of Canada in R. v. Tran⁴ applies to a refugee hearing, I find that the applicants have failed to establish that the interpretation of the testimony fell short of the criteria of continuity, precision, impartiality, competency and contemporaneousness set out by Chief Justice Lamer. I adopt the reasoning of my colleague Madam Justice McGillis in Banegas v. Canada (Minister of Citizenship and Immigration)⁵ and, in particular, her following comments which are equally applicable to this case:

In particular, none of the alleged errors in interpretation affected in any manner the various inconsistencies in the applicant's evidence which gave rise to the adverse finding of credibility. ... During the course of his hearing, the applicant indicated that he understood the interpreter, gave responsible answers to the questions posed and made no objection, either personally or through his counsel, to the quality of the interpretation. More importantly, the applicant did not state in his affidavit that he did not understand the proceedings.6

     In the light of my findings concerning the substance of the report, I need not deal with the respondent's other issues. The Tribunal's decision turns on its finding of lack of credibility. The applicants' written submissions concerning the Tribunal's lack of cross-cultural sensitivity and its characterization of the current status of the Jatiya Party do not establish grounds of reviewable error.

     For these reasons, this application for judicial review is dismissed. Counsel for the applicants has requested the certification of a question. In my view, the disposition of this application does not require a response to the proposed question, particularly in view of my conclusions concerning the report. The request is denied.

                        

                         Judge

Ottawa, Ontario

August 27, 1997

__________________

¹      Zaman v. Canada (Minister of Citizenship and Immigration) (May 16, 1997), IMM-1730-96 (F.C.T.D.).      Coscia v. Canada (The Minister of Citizenship and Immigration) (May 26, 1997), IMM-2348-96 (F.C.T.D.).

²      Dhillon v. Canada (Minister of Employment and Immigration) (March 13, 1995), IMM-2341-94 (F.C.T.D.).

³      Tung v. Canada (Minister of Employment and Immigration) (1991), 124 N.R. 388 (F.C.A.).

⁴      [1994] 2 S.C.R. 951.

⁵      [1997] F.C.J. No. 928 (QL).

⁶      Ibid., at paragraph 7.