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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.
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URIE J.: I agree.
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KELLY D.J.: I agree.
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