Judgments

[2000] 3 F.C. 371

IMM-6500-98

Soliman Mohammadian (Applicant)

v.

The Minister of Citizenship and Immigration (Respondent)

Indexed as: Mohammadian v. Canada (Minister of Citizenship and Immigration) (T.D.)

Trial Division, Pelletier J.—Toronto, September 29, 1999; Ottawa, March 10, 2000.

Citizenship and Immigration — Status in Canada — Convention refugees — Quality of interpretation — In proceedings before CRDD, refugee claimants have Charter-guaranteed right to interpretation which is continuous, precise, competent, impartial and contemporaneous — Proof of prejudice not required — However, complaints about quality of interpretation must be made at first opportunity.

Constitutional law — Charter of rights — Criminal process — Right to assistance of interpreter under s. 14 — Whether extending to proceedings before CRDD — Quality of interpretation — S.C.C. decision in R. v. Tran applied — In proceedings before CRDD, interpretation provided to refugee claimants must be continuous, precise, competent, impartial and contemporaneous — Proof of prejudice not required — Failure to complain about quality of interpretation at first opportunity fatal to judicial review application.

The applicant, an Iranian Kurd, challenged the CRDD’s decision rejecting his claim for refugee status in Canada on the ground of faulty interpretation at the hearing. The interpreter did not speak the same variant of Kurdish as the applicant, so that the applicant allegedly understood the interpreter approximately one half of the time.

Held, the application should be dismissed.

The right to the assistance of an interpreter was guaranteed by section 14 of the Charter. The plain language of section 14 together with the rationale in Roy v. Hackett suggested that section 14 applied to proceedings before the CRDD. R. v. Tran has defined the extent of that right: the framework for analysis as to whether a section 14 violation has occurred, the elements of the standard of interpretation to be expected, the absence of a requirement for proof of prejudice as a condition precedent for judicial remedy and the impossibility of waiver (the possibility of waiver was found to be incompatible with the situation of a person facing criminal charges and possible deprivation of liberty). However, it was not beyond the bounds of civilized society to expect a refugee claimant to complain at the first opportunity when unable to understand the interpreter provided by the CRDD. The applicant’s onus to establish his entitlement to refugee status extends to identifying known procedural defects as they occur instead of hoarding them as insurance against future disappointments. Case law suggested that where problems of interpretation could be reasonably addressed at the time of the hearing, there was an obligation to do so then and not later, in judicial review proceedings. There is an obligation on both the tribunal and counsel to take steps to see that problems regarding interpretation are adequately addressed. Where the error could not be detected until after the hearing, the lack of prior complaint has not been held against the applicant. Nothing in the cases would preclude a requirement that a complaint about the quality of interpretation be made at the first opportunity where it is reasonable, in the circumstances of the case, to expect such a complaint to be made.

In this case, the question of the quality of the interpretation should have been raised before the CRDD because it was obvious to the applicant that there were problems between him and the interpreter. His failure to do so was fatal to this application for judicial review.

As to the effectiveness of counsel who represented the applicant at the CRDD hearing, although counsel’s failure to interview a witness was not a recommended practice, it was not sufficient to justify the Court’s interference with the decision.

A question was certified as to whether the analysis of the Supreme Court of Canada provided in R. v. Tran applies to CRDD proceedings and three questions were put regarding related issues.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], ss. 7, 14.

Immigration Act, 1976, S.C. 1976-77, c. 52.

CASES JUDICIALLY CONSIDERED

APPLIED:

R. v. Tran, [1994] 2 S.C.R. 951; (1994), 133 N.S.R. (2d) 81; 117 D.L.R. (4th) 7; 92 C.C.C. (3d) 218; 32 C.R. (4th) 34; 170 N.R. 81; Wyllie v. Wyllie (1987), 37 D.L.R. (4th) 376; 30 C.R.R. 181 (B.C.S.C.); Roy v. Hackett (1987), 62 O.R. (2d) 365; 45 D.L.R. (4th) 415; 23 O.A.C. 382 (C.A.) (Eng.); Aquino v. Minister of Employment and Immigration (1992), 144 N.R. 315 (F.C.A.); Mila v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1133 (T.D.) (QL); Ming v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 336 (1990), 10 Imm. L.R. (2d) 284; 107 N.R. 296 (C.A.); Mosa v. Minister of Employment and Immigration (1993), 154 N.R. 200 (F.C.A.); Yu v. Minister of Employment and Immigration (1994), 75 F.T.R. 241 (F.C.T.D.).

DISTINGUISHED:

Xhelilaj v. Canada (Minister of Citizenship and Immigration) (1997), 132 F.T.R. 161; 39 Imm. L.R. (2d) 47 (F.C.T.D.); Banegas v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 928 (T.D.) (QL); Shah v. Minister of Employment and Immigration (1994), 81 F.T.R. 251 (F.C.T.D.); Tung v. Minister of Employment and Immigration (1991), 124 N.R. 388 (F.C.A.); Jiang v. Minister of Employment and Immigration (1994), 77 F.T.R. 36 (F.C.T.D.); Mathon v. Canada (Minister of Employment and Immigration) (1988), 38 Admin. L.R. 193; 28 F.T.R. 217; 9 Imm. L.R. (2d) 132 (F.C.T.D.); Shirwa v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 51 (1993), 22 Admin. L.R. (2d) 220; 71 F.T.R. 136; 23 Imm. L.R. (2d) 123 (T.D.).

APPLICATION for judicial review of a CRDD decision rejecting an application for refugee status, essentially on the ground of faulty interpretation. Application dismissed.

APPEARANCES:

Micheal T. Crane for applicant.

Marcel R. Larouche for respondent.

SOLICITORS OF RECORD:

Micheal T. Crane, Toronto, for applicant.

Deputy Attorney General of Canada for respondent.

The following are the reasons for order and order rendered in English by

[1]        Pelletier J.: Soliman Mohammadian is an Iranian Kurd. On August 17, 1997, he made a claim for refugee status in Canada. His claim came on for a hearing on August 13, 1998 but had to be adjourned because the interpreter and Mr. Mohammadian could not communicate with each other except in English. It appears that there are four variants of the Kurdish language which reflect the countries in which Kurds find themselves; Turkey, Iran, Iraq and Syria.[1] It can be quite difficult for speakers of one variant to understand speakers of the other, as was the case between Mr. Mohammadian and the first interpreter. The hearing was adjourned and resumed on August 27, 1998, with another interpreter. That interpreter was an Iranian Kurd. There were no difficulties with interpretation at that hearing. The hearing had to be adjourned a second time and a new interpreter was present for the next hearing. The new interpreter was sworn in without any questions being asked of him or Mr. Mohammadian as to the degree of understanding between the two of them.[2] There appeared to be some minor difficulties during the course of the hearing but no objection was taken to the quality of the interpretation at the time. The decision of the Convention Refugee Determination Division (CRDD) rejecting Mr. Mohammadian’s application is now challenged on several grounds, the first of which is faulty interpretation.

[2]        The affidavit of Chris Yousefi establishes that there are variants of the Kurdish language as identified above and that the last interpreter spoke the Iraqi variant of Kurdish, whereas Mr. Mohammadian and his witness Mr. Fateh both speak the Iranian variant. The difference, according to Mr. Yousefi, is that speakers incorporate words from the dominant language of the country in which they live; Arabic for Iraqi Kurds and Persian (or Farsi) for Iranian Kurds. Mr. Yousefi reviewed the tapes of the hearing as well as the transcript and pointed out numerous errors of varying degrees of significance. Mr. Fatah’s affidavit says that he had great difficulty understanding the interpreter, to the point that he only understood him approximately one half of the time. Mr. Mohammadian’s affidavit recites that:

2….The second sitting was interpreted by an Iranian Kurd and I had no difficulties in comprehension or expression. At the third sitting, the interpreter was an Iraqi Kurd. I had great difficulty understanding him and in being understood by him. I did not feel that I was able to express myself as I would have done normally. I had to carefully select my words so that the interpreter would understand. I therefore not only had to concentrate on the questions being posed and my evidence, but I also had to concentrate on the very words that I was using so that the interpreter would understand me. My testimony was greatly affected by this added pressure. I did not feel that I was able to communicate at the hearing in a full way, nor did I understand everything that was being said. I was under the impression that we had to accept the interpreter and could not complain.

[3]        Counsel for Mr. Mohammadian argues that his client’s right to adequate translation is guaranteed by the Charter [Canadian Charter of Rights and Freedoms, being Part I of the Constitution Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44]], as set out in R. v. Tran, [1994] 2 S.C.R. 951. The Court summarized the constitutional requirements as follows [at pages 990-991]:

In sum, the purpose of furthering understanding of the proceedings which underpins the right to interpreter assistance is most likely to be fulfilled if the standard for interpretation under s. 14 of the Charter is defined as one of continuity, precision, impartiality, competency and contemporaneousness. Given the underlying importance of the interests being protected by the right to interpreter assistance, the constitutionally guaranteed standard of interpretation must be high and allowable departures from that standard limited. In assessing whether there has been a sufficient departure from the standard to satisfy the second stage of inquiry under s. 14, the principle which informs the right—namely, that of linguistic understanding—should be kept in mind. In other words, the question should always be whether there is a possibility that the accused may not have understood a part of the proceedings by virtue of his or her difficulty with the language being used in court.

[4]        The issue raised by this case is the application of Tran to proceedings before the CRDD.

[5]        The Court was dealing with the case of a Vietnamese man charged with sexual assault. He spoke English poorly if at all and was assisted by an interpreter at his trial. In the course of the trial, an identification issue arose as a result of which the interpreter was required to testify. Instead of translating the questions he was asked and the answers he gave as they occurred, he provided the accused with a summary at the conclusion of his examination in chief and another summary at the conclusion of his cross-examination. An exchange between the interpreter and the trial judge at the conclusion of the former’s evidence does not appear to have been translated at all. The accused appealed on the ground that his section 14[3] rights had been infringed.

[6]        Lamer C.J., writing for the Court in Tran, began by making it clear that the decision in Tran applied only to criminal proceedings, leaving it open to future consideration as to whether different rules may have to be developed in other contexts.[4] He then reviewed the common law and legislative history of the right to an interpreter before defining the framework for defining a violation of section 14. That framework requires consideration of the following elements:

— it must be shown that the accused requires the assistance of an interpreter. Generally this is not an onerous requirement unless it is raised for the first time at the appellate level.

— unless it is a case of a complete failure to provide an interpreter, the accused must show that the standard of interpretation fell below the constitutionally guaranteed standard of interpretation which requires continuity, precision, impartiality, competency and contemporaneousness.

— the accused must establish that the lapse in interpretation occurred in the course of the proceedings while the case was being advanced and not at some extrinsic or collateral point.

[7]        The elements of the constitutionally guaranteed standard are briefly described below:

— in general terms, the standard of interpretation is high but not so high as perfection.

— continuous: without breaks or interruptions, i.e., interpretation must be provided throughout the proceedings without any periods where interpretation is not available.

— precise: the interpretation should reflect the evidence given without any improvement of form, grammar or any other embellishment.

— impartial: the interpreter should have no connection to parties or interest in the outcome.

— competent: the quality of the interpretation must be high enough to ensure that justice is done and seen to be done.

— contemporaneous: the interpretation must be available as the evidence is given, though not necessarily simultaneously.

[8]        If a breach of this standard is shown, the accused does not have to show that he has been prejudiced by the breach [at page 995]:

Section 14 expressly guarantees the right to the assistance of an interpreter when certain conditions precedent are met. Nowhere does it require or suggest that an ex post facto assessment of prejudice to an accused’s right to full answer and defence be carried out before a violation of the right can be found. Furthermore, the right under s. 14 of the Charter is one held not only by accused persons, but also by parties in civil actions and administrative proceedings and by witnesses. If the right to interpreter assistance were based exclusively on the right to make full answer and defence and on avoiding prejudice to that right, there would be no reason for parties in non-criminal proceedings as well as witnesses to be separately guaranteed the right.

Section 14 guarantees the right to interpreter assistance without qualification. Therefore, it would be wrong to introduce into the assessment of whether the right has been breached any consideration of whether or not the accused actually suffered prejudice when being denied his or her s. 14 rights. The Charter in effect proclaims that being denied proper interpretation while the case is being advanced is in itself prejudicial and is a violation of s. 14. Actual resulting prejudice is a matter to be assessed and accommodated under s. 24(1) of the Charter when fashioning an appropriate and just remedy for the violation in question. In other words, the “prejudice” is in being denied the right to which one is entitled, nothing more.

[9]        The applicant says that this framework applies to a hearing before the CRDD. He alleges that in his case, the standard of interpretation fell below the constitutionally guaranteed standard. As a result, the decision must be sent back for rehearing before a differently constituted panel, without the necessity of any prejudice being shown.

[10]      The question as to whether section 14 applies to these proceedings is not controversial. In Wyllie v. Wyllie (1987), 37 D.L.R. (4th) 376 (B.C.S.C.), it was held that section 14 applied to all civil proceedings. In Roy v. Hackett (1987), 62 O.R. (2d) 365, the Ontario Court of Appeal held that section 14 applied to a labour arbitration hearing involving the Royal Canadian Mint as employer. The Court held that since the arbitration board was bound to apply principles of natural justice, section 14 applied. While those decisions are not binding on this Court, the plain language of the section together with the rationale in Roy, supra, suggests that section 14 applies to proceedings before the CRDD.

[11]      Do some or all of the elements of the application of section 14 set out in Tran apply to proceedings before the CRDD? The elements of Tran are the framework for determining a breach of section 14, the elements of the constitutionally guaranteed standard of interpretation, the impossibility of waiver and the absence of a requirement to show prejudice. In Xhelilaj v. Canada (Minister of Citizenship and Immigration) (1997), 132 F.T.R. 161 (F.C.T.D.), Dubé J. applied the standard of interpretation set out in Tran to a refugee hearing where there were conspicuous problems with interpretation. Waiver (in the form of absence of complaint before the CRDD) and prejudice did not arise because there had been complaints about the quality of interpretation at the hearing and there was obvious prejudice. McGillis J. raised the issue of the application of Tran but expressly declined to decide it in Banegas v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 928 (T.D.) (QL). There is no other jurisprudence on this point in this Court.

[12]      The framework for analysis of a breach of section 14 and the elements of the appropriate standard of interpretation recommend themselves for adoption by reason of their clarity and their applicability to a variety of settings. Judicial comity is another factor in the adoption of the standard of interpretation, given its prior adoption by Dubé J. in Xhelilaj. The more difficult issue is whether the absence of prejudice and the impossibility of waiver should or must also be adopted. The rationale for the rejection of proof of prejudice as a condition of obtaining relief from a breach of section 14 is difficult to refute. The fact that a right is constitutionally protected is a reflection of a societal consensus that this right should be beyond the reach of government and its agents. Requiring proof of prejudice as a condition of obtaining a remedy for infringement of a constitutionally protected right undermines the constitutional protection. It implicitly asserts that the right can be infringed so long as no prejudice results. This is an unwarranted qualification on the protection afforded by the Charter.

[13]      The same is not true of the question of waiver, or more precisely, the requirement that where it is reasonable to expect it, a person complain of the infringement of their right at the first opportunity. In Tran, Lamer C.J. found the possibility of waiver to be incompatible with the situation of a person facing criminal charges and possible deprivation of liberty [at page 996]:

In other words, it is simply beyond the bounds of a civilized society such as ours to permit a person charged with a criminal offence and facing deprivation of liberty who genuinely cannot speak and/or understand the language of the proceedings to dispense either wittingly or unwittingly with the services of an interpreter.

[14]      Is it beyond the bounds of a civilized society to expect a refugee claimant who seeks admission to Canada to complain at the first opportunity when he/she cannot understand the interpreter provided for them by the CRDD? The applicant’s onus to establish his/her entitlement to refugee status must surely extend to identifying known procedural defects as they occur instead of hoarding them as insurance against future disappointments.

[15]      The jurisprudence in this Court is divided on the question of the requirement that interpretation errors be raised before the CRDD as a condition of obtaining relief from the Court in an application for judicial review. In Shah v. Minister of Employment and Immigration (1994), 81 F.T.R. 251 (F.C.T.D.), Teitelbaum J. held that prior complaint was not required in order to be able to raise the issue of quality of interpretation as a ground of judicial review. He relied upon Tung v. Minister of Employment and Immigration (1991), 124 N.R. 388 (F.C.A.) as authority for that conclusion. In fact, Tung is silent on the question of whether an objection to the quality of the interpretation need be taken at the hearing. Furthermore, the Court in Tung concluded that the quality of the interpretation was manifestly inadequate simply on the basis of the transcript, without the benefit of any expert evidence as to various errors.

[16]      In Aquino v. Minister of Employment and Immigration (1992), 144 N.R. 315, a Federal Court of Appeal decision, Mahoney J.A. held without reference to authority that the applicant’s failure to raise the issue of interpretation at the hearing was fatal to his claim for relief:

As to interpretation, it is apparent from the transcript that the appellant understood some English and that one of the members of the panel understood Spanish. The appellant appears to have answered some questions without waiting for translation and the panel member interrupted the interpreter on several occasions to correct the translation. The appellant’s counsel, who one assumes spoke no Spanish, did not object to the interpretation during the hearing although two adjournments were taken during the course of the appellant’s testimony and counsel was clearly on notice, as a result of the member’s interventions, that there were problems. In the circumstances, the appellant’s present objection to the quality of interpretation is not a ground on which the appeal should succeed.

[17]      As can be seen from this passage, the facts are perhaps determinative of the result. It would be reading more into the case than Mahoney J.A. intended to say that it stands for the bald proposition that no relief will be granted with respect to inadequate translation if no objection is taken at the hearing itself. A more accurate statement might well be that where the applicant is represented by counsel, and where there are manifest problems with interpretation, the claimant cannot say nothing at the hearing, and then raise the matter as a ground of relief in a subsequent application.

[18]      In Mila v. Canada (Minister of Employment and Immigration), [1993] F.C.J. No. 1133 (T.D.) (QL), McKeown J. rejected the application of a Romanian woman who was hard of hearing and who apparently had difficulty understanding the proceedings. After noting that no objection was taken at the hearing, McKeown J. found that the applicant suffered no prejudice and ruled against her.

[19]      In Yu v. Minister of Employment and Immigration (1994), 75 F.T.R. 241 (F.C.T.D.), Nadon J. allowed the application of a woman who showed that a crucial part of her testimony had not been properly translated. While expressing some reservations about the expert evidence, Nadon J. concluded that the doubt raised by it was sufficient to send the matter back for a new hearing. The judgment is silent on the question of whether an objection was taken at the hearing.

[20]      In Jiang v. Minister of Employment and Immigration (1994), 77 F.T.R. 36 (F.C.T.D.), Gibson J. allowed an application based upon inadequate interpretation where the interpreter consistently misstated certain dates which led to an adverse credibility with respect to the claimant. It appears that the issue was raised with the CRDD either at the hearing, or prior to the making of an application for judicial review.

[21]      In Mosa v. Minister of Employment and Immigration (1993), 154 N.R. 200, the Federal Court of Appeal allowed the application of an Ethiopian woman when it was shown that a critical part of her testimony had not been properly interpreted. The decision is silent as to whether an objection was taken at the hearing itself.

[22]      This review, which is far from exhaustive, shows that in some cases applicants have been allowed to raise issues of defective translation as grounds for judicial review when it may not have been raised before the CRDD. It is clear that counsel have not been allowed to let manifestly poor interpretation pass without objection and then raise poor interpretation as a ground for judicial review. Aquino v. Minister of Employment and Immigration, supra. There is an obligation on the part of counsel to draw such matters to the attention of the tribunal so that it can be remedied at the hearing itself. Counsel and their clients cannot hedge their bets by ignoring the issue and then raising it in the event of an unfavourable result.

[23]      In general terms, the cases reviewed appear to suggest that where problems of interpretation could be reasonably addressed at the time of the hearing, there is an obligation to address them then and not later, in judicial review proceedings. There is an obligation on both the tribunal (see Ming v. Canada (Minister of Employment and Immigration), [1990] 2 F.C. 336 (C.A.) and counsel (see Aquino) to take steps to see that interpretation is adequately addressed. Where the error cannot be detected until after the hearing (Mosa), the lack of prior complaint has not been held against the applicant.

[24]      There does not appear to be anything in these cases which would preclude a requirement that a complaint about the quality of interpretation be made at the first opportunity where it is reasonable to expect such a complaint to be made.

[25]      There is a powerful argument in favour of such a requirement arising from judicial economy. If applicants are permitted to obtain judicial review of adverse decisions by remaining silent in the face of known problems of interpretation, they will remain silent. This will result in a duplication of hearings. It seems a better policy to provide an incentive to make the original hearing as fair as possible and to avoid repetitious proceedings. Applicants should be required to complain at the first opportunity when it is reasonable to expect them to do so.

[26]      The crucial element is the reasonableness of the expectation that the claimant complain at the first opportunity. In many cases, the applicant is aware that he/she is having difficulty communicating with the interpreter. The reasons may vary but the applicant is aware of the difficulty. In those circumstances, it is reasonable to expect the applicant to speak up. There are other cases where the defective interpretation is not known to the applicant because the errors occur in the language of the tribunal in which the applicant is not competent. Such errors may only be discoverable after the fact, and in those cases, it is not reasonable to expect the applicant to make a complaint at the time of the hearing.

[27]      For these reasons, I find that some but not all elements of the Tran decision apply to proceedings before the CRDD. The framework for analysis as to whether a section 14 violation has occurred, the elements of the standard of interpretation to be expected and the absence of a requirement for proof of prejudice as a condition precedent to gaining access to the Court’s remedial power are applicable to refugee proceedings. However, complaints about the quality of interpretation 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.

[28]      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.

[29]      In this case, I find that the question of the quality of the interpretation should have been raised before the CRDD because it was obvious to the applicant that there were problems between him and the interpreter. His affidavit refers to the difficulty he had understanding the interpreter and says that at times he did not understand what was being said. This is sufficient to require him to speak out at the time. His failure to do so then is fatal to his claim now. The applicant’s assertion that he did not know he could object to the interpreter is not credible given that the first hearing was adjourned because he and the interpreter could not communicate. Clearly, the CRDD had shown it was alive to the issue of interpretation. As a result, I do not have to engage in an analysis as to whether all of the elements of Tran have been met since, even if they have, the applicant’s failure to make a timely complaint in circumstances where it was reasonable to expect him to do so means that relief is not available to him.

[30]      The next ground raised is the effectiveness of counsel who represented the applicant at the CRDD hearing. This arises in the context of counsel failing to ask a witness, Mr. Fateh, if he was aware of the applicant’s involvement in the KDP party in Iran. In his affidavit, Mr. Fateh says he was not interviewed by counsel prior to giving evidence and that, if he had been asked, he could have testified as to his inquiries of the party apparatus in Iran who had confirmed the applicant’s involvement in a cell in Bookan. This is significant because the CRDD disbelieved that the applicant was politically involved in Iran, which led to a finding of lack of credibility.

[31]      The applicant relies upon Mathon v. Canada (Minister of Employment& Immigration) (1988), 38 Admin. L.R. 193 (F.C.T.D.), where Pinard J. held that a lawyer’s failure to file an application for reconsideration, within the time provided by the Immigration Act, 1976 [S.C. 1976-77, c. 52] (the Act) was a denial of the applicant’s rights under section 7 of the Charter not to be deprived of her right to “life, liberty and security of the person” except in accordance with the principles of fundamental justice. Pinard J. inquired whether counsel had breached the standard of care for solicitors in failing to file the request for reconsideration within the time provided by the Act and concluded that he had, which led to a finding of negligence. This in turn led to the availability of a Charter remedy [at pages 203-204]:

It is precisely because of the error and/or negligence of her counsel, who did not file the application for redetermination within the required deadline, even though the applicant had signed it at the proper time, that the applicant was deprived of a full and complete hearing before the Immigration Appeal Board. Accordingly, as the exclusion was solely the result of a lawyer’s error and/or negligence, a litigant who has acted with care should not be required to bear the consequences of such an error or negligence.

[32]      Pinard J. then referred to a number of criminal law cases holding that an accused should not suffer the consequences of his counsel’s ineptness.

[33]      In Shirwa v. Canada (Minister of Employment and Immigration), [1994] 2 F.C. 51 (T.D.), Denault J. reviewed a number of decisions in the Federal Court dealing with this issue and concluded as follows [at pages 60-61]:

While each of the foregoing cases involves a different type misconduct on the part of counsel, it seems clear that the incompetence of counsel in the context of a refugee hearing provides grounds for review of the tribunal’s decision on the basis of a breach of natural justice. The criteria for reviewing such a decision are not as clear, but it is possible to derive a number of principles from these cases. In a situation where through no fault of the applicant the effect of counsel’s misconduct is to completely deny the applicant the opportunity of a hearing, a reviewable breach of fundamental justice has occurred.

In other circumstances where a hearing does occur, the decision can only be reviewed in “extraordinary circumstances” where there is sufficient evidence to establish the “exact dimensions of the problem” and where the review is based on a “precise factual foundation”. These latter limitations are necessary, in my opinion, to heed the concerns expressed by Justices MacGuigan and Rothstein that general dissatisfaction with the quality of representation should not provide grounds for judicial review of a negative decision. However, where the incompetence or negligence of the applicant’s representative is sufficiently specific and clearly supported by the evidence such negligence or incompetence is inherently prejudicial to the applicant and will warrant overturning the decision notwithstanding the lack of bad faith or absence of a failure to do anything on the part of the tribunal.

[34]      Here, a meaningful hearing did occur so the case falls within the second case suggested by Denault J. Therefore, the decision can only be reviewed in “extraordinary cirumstances” based on a “precise factual foundation”. The negligence alleged against counsel at the CRDD hearing is that she did not interview a witness, Mr. Fateh, prior to the hearing and that she did not ask the witness a key question “Was the applicant active in the KDP in Iran?” Because Mr. Fateh was found to be credible by the CRDD, it is argued that his evidence would have been determinative of this point.

[35]      This is what appears in the transcript near the beginning of Mr. Fateh’s evidence in chief:

COUNSEL:           Did you know the claimant back home in Bookan?

WITNESS:            This individual?

COUNSEL:           Yes.

WITNESS:            No.

…

COUNSEL:           Did you know the claimant’s father?

WITNESS:            No.

COUNSEL:           Grandfather?

WITNESS:            No.

COUNSEL:           Did you know anything about the claimant’s involvement, or the claimant’s family’s involvement with the KDP?

INTERPRETER:    I’m sorry, he did not …. I will repeat the question.

WITNESS:            No.

[36]      Mr. Yousefi makes no comment about errors of interpretation with respect to this exchange.

[37]      In his affidavit, Mr. Fateh says the following:

4. Had I been asked directly whether I knew at the time of the hearing that the applicant was active in the support of the KDP party in Iran, I would have answered the truth: which is that I contacted the KDP underground organization in Iran (the KDP is illegal in Iran and I was advised that the applicant was involved in a cell in Bookan. I made this inquiry precisely for the purpose of verifying whether or not the Applicant was active in the KDP in Iran and to provide this evidence at the hearing. But I was never asked this question. I had expected that I was going to be asked this question, but I was not, to my surprise.

[38]      According to the transcript, Mr. Fateh was asked the question and he answered no. This can not be the foundation for a finding of negligence on the part of counsel. With respect to the question of interviewing the witness, counsel’s failure to interview the witness is not recommended practice. But the cases cited by counsel do not establish that it is invariably negligent for counsel not to do so. On balance, I do not find that this would justify the Court’s interference with the decision.

[39]      Finally, counsel argues that the CRDD misstated some of the evidence with respect to the applicant’s involvement with the KDP in Canada, his personal knowledge of Mr. Fateh in Iran and his failure to make a refugee claim in other Convention countries through which he travelled. While the CRDD is not free to misstate the evidence and then to create credibility issues on the basis of the misstated evidence, such misstatements as occurred were minor and the conclusions ultimately drawn could be supported on other evidence before the CRDD.

[40]      As a result, there will be an order that the application to set aside the decision of the CRDD is dismissed.

[41]      The applicant has asked that the following two questions be certified:

1-   Is the failure to object to the quality of interpretation at the hearing of a refugee claim at the Refugee Division of the Immigration and Refugee Board fatal to an objection to the quality of interpretation on an application for judicial review?

2-   What standard of interpretation is required of a refugee claim at the Refugee Division of the Immigration and Refugee Board under s. 14 of the Charter of Rights and Freedoms?

[42]      The respondent objects to the certification of any question on the ground that no deficiency in the interpretation was shown and that there is no conflict in the Trial Division as to whether Tran applies to hearings before the CRDD.

[43]      Both proposed questions raise issues arising out of the decision of the Supreme Court in Tran. Rather than certifying a question as to some but not others of the elements identified in Tran, I prefer to certify a more inclusive question which, given the prevalence of interpreters in proceedings before the CRDD, is a serious question of general importance:

Does the analysis developed by the Supreme Court of Canada in R. v. Tran, supra, in relation to the application of section 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 that 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 an applicant to do so, such as when an applicant has difficulty understanding the interpreter, must the applicant object to the quality of interpretation before the CRDD as a condition of being able to raise the quality of interpretation as a ground of judicial review?

ORDER

[44]      It is hereby ordered that the applicant’s application for judicial review of the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated November 27, 1998 is dismissed.

---