A-167-80
Juan Antonio Perez (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Heald and Urie JJ. and Kelly
D.J.—Toronto, July 28 and 30, 1980.
Judicial review — Immigration — Immigration Appeal
Board held that applicant was not a Convention refugee —
Court set aside Board's decision on the basis that the Board's
finding was contrary to the evidence and the Board used
incorrect translations of evidence — Board confirmed its deci
sion adopting its original reasons and referring to both the
correct and incorrect translations of the evidence — Applica
tion allowed — Federal Court Act, R.S.C. 1970 (2nd Supp.), c.
10, s. 28 — Immigration Act, 1976, S.C. 1976-77, c. 52, s.
70(2).
Leiva v. Minister of Employment and Immigration,
A-251-79, followed. Garcia v. Minister of Employment
and Immigration, A-123-79, followed. Tapia v. Minister
of Employment and Immigration [1979] 2 F.C. 468,
followed.
APPLICATION for judicial review.
COUNSEL:
Nancy Goodman and Barbara Jackman for
applicant.
B. Segal for respondent.
SOLICITORS:
Knazan, Jackman & Goodman, Toronto, for
applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
HEALD J.: It is my opinion that the decision of
the Immigration Appeal Board dated March 6,
1980 wherein the Board determined that the appli
cant is not a Convention refugee and refused to
allow the application to proceed must be set aside.
The original decision by the Board in this matter,
dated March 13, 1979, which was to the same
effect as the March 6, 1980 decision herein
impugned was set aside by this Court by judgment
dated October 26, 1979 and the matter was
referred back to the Board for decision on the
basis that:
(a) The finding made by the Board that the
applicant did not inform the immigration
authorities before December 1976 "that he was
unable to return home" was contrary to the
evidence; and
(b) The Board used incorrect translations of the
two letters written in Spanish to the applicant
by his lawyer; correct translations of those two
letters are attached, as Exhibits A and B, to the
affidavit of translation of Beatriz Tabak dated
October 12, 1979, which was filed in this Court
on October 19, 1979.
It is my view that the Board, in its decision of
March 6, 1980, failed to comply with both of the
directions given to it by this Court as set out
supra.
Dealing firstly with direction (a) of this Court.
In its reasons for the decision of March 6, 1980,
the Board states (Appendix I, page 8): "... the
Board confirms its decision previously rendered,
confirms its reasons for the said decision and
refuses the application to proceed and again deter
mines that the applicant is not a Convention
refugee." Included in these original reasons was
the finding of fact that: "only in December 1976
did he inform the Immigration Authorities that he
was unable to return home" (Case, page 62). By
adopting the original reasons, the Board fails to
have regard to the findings of this Court as set out
in direction (a) supra. It seems clear from the
evidence that the applicant advised the immigra
tion authorities at least as early as February 11,
1976 that he was unable to return home (see Case,
page 7, lines 1 to 12). The February 11, 1976 date
is only 18 days after the applicant came to
Canada. At page 5 of Appendix I, the Board
stated: "The Board is of the opinion that it is not
material to his claim for refugee status whether he
asked for refugee status on 26th August, 1976 or
in December of 1976, or whether he did so seven
months after his arrival in Canada or eleven
months after his arrival in Canada." This state
ment seems to indicate that the Board did not
consider the fact that the applicant advised the
immigration authorities on February 11, 1976 of
his inability to return home. While it may be true
from a strictly technical point of view, that a
formal application for refugee status was not made
until several months later, it seems to me that the
evidence relating to February 11, 1976, is relevant
to a proper determination of the issues herein and
that it does not appear, on the record before us, to
have been considered by the Board.
Coming now to direction (b) of this Court, the
Board has incorporated both the incorrect and
correct translations of the letters of March 24,
1976 and July 30, 1976 in its reasons for the
decision of March 6, 1980. After setting out both
sets of letters, the Board said (Appendix I, page
8): "The Board has carefully examined the con
tents of these letters and finds that both sets
convey substantially the same message and that
the translations appearing of record before the
Federal Court are not of such a nature as to
influence or persuade the Board to alter its origi
nal decision." This Court, by its order of October
26, 1979 made a finding that the Board had used
incorrect translations of the two letters in question.
In spite of this finding, the Board, on the "referral
back" examined the contents of the incorrect as
well as the correct translations. In so doing, the
Board, in my opinion, failed to comply with the
provisions of section 70(2) of the Immigration Act,
1976, S.C. 1976-77, c. 52, and with the jurispru
dence of this Court.' That jurisprudence provides
that the Board, on an application for redetermina-
tion, is entitled to examine only the transcript of
the examination under oath, which would, of
course, include exhibits adduced on such examina
tion and the declaration under oath. The letters in
issue were adduced in evidence on the examination
in their original form. The senior immigration
officer apparently had the translations done later.
The "correct translations" came before this Court
on an application to vary the contents of the case
' See Leiva v. Minister of Employment and Immigration,
File No. A-251-79, July 24, 1979. [Reasons for judgment not
distributed—Ed.] See also Garcia v. Minister of Employment
and Immigration, File No. A-123-79, July 26, 1979. [Reasons
for judgment not distributed—Ed.] See also Tapia v. Minister
of Employment and Immigration [1979] 2 F.C. 468.
which, in the circumstances, was the only way the
translations obtained by the senior immigration
officer could be challenged. Since they arose out of
exhibits adduced on the examination under oath
they were matters properly before the Board on
the application for redetermination. The Board
was not, in my view, entitled to consider the
inaccurate translations when the matter was remit
ted 'to it by the Court. They were inadmissible
because such translations were not, in any way,
proved to be true and accurate translations. The
"correct translations" were properly proved by the
affidavit of the translator. This error by the Board
would be sufficient, in my view, to require the
matter to be referred back to the Board. However,
even assuming the Board's power to look at both
translations, I cannot agree with their conclusion
that the two translations "convey substantially the
same message." Dealing firstly with the letter of
March 24, 1976, the third paragraph of the correct
translation makes it clear that the applicant's sit
uation was more precarious and dangerous under
the new military government than before because
the applicant had himself been an active member
of the Union Civica Radical Party. The correct
translation makes the definite statement that this
active membership "puts your life in danger." The
incorrect translation, while advising continued
residence in Canada, is not nearly so positive or so
definite and is, in my view, significantly different
from the correct translation.
Dealing now with the letter of July 30, 1976. I
have likewise concluded that here also, there is at
least one significant difference between the correct
and the incorrect translation. The incorrect trans
lation refers in the third paragraph thereof to a
promise of "possible political amnesty more or less
immediately" by the President of the Republic.
The correct translation makes no such reference
but refers rather to "a more or less immediate
liberalization." To me, the correct translation is
significantly less hopeful and less definite than the
incorrect one.
For all of the above reasons, I would allow this
section 28 application, set aside the decision of the
Immigration Appeal Board herein dated March 6,
1980 and refer the matter back to the Board for
decision on a basis not inconsistent with these
reasons.
* * *
URIE J.: I agree.
* * *
KELLY D.J.: I agree.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.