A-696-82
Sunai Leota Faiva (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
Court of Appeal, Heald, Le Dain JJ. and Clement
D.J.—Toronto, March 4; Ottawa, March 21,
1983.
Immigration — Deportation — S. 28 application to review
and set aside Adjudicator's order — Regulations requiring
interpreter if adjudicator not satisfied person concerned
understands language of inquiry — Adjudicator indicating not
so satisfied — Nevertheless proceeding when Tonganese inter
preter unavailable — Adjudicator "prepared to relax .. .
requirements" — Adjudicator lacked jurisdiction or erred in
law — Duty to conduct inquiry subject to requirement for
interpreter where necessary — No right to relax standard —
Deportation order set aside — Immigration Regulations, 1978,
SOR/78-172, ss. 27, 28, 29 — Immigration Act, 1976, S.C.
1976-77, c. 52, ss. 27(2)(e), 104(2) — Federal Court Act,
R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
Judicial review — Applications to review — Immigration —
Adjudicator lacked jurisdiction or erred in law in proceeding
without interpreter although not satisfied person concerned
understood language of inquiry — Adjudicator without juris
diction to relax requirements set out in Regulations — Immi
gration Regulations, 1978, SOR/78-172, ss. 27, 28, 29 —
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.
This is a section 28 application to review and set aside a
deportation order on the ground that the Adjudicator acted
without jurisdiction or erred in law in conducting the inquiry
without an interpreter although not satisfied at the outset that
the applicant understood English. The Immigration Regula
tions, 1978, require that, before any evidence is presented, the
adjudicator satisfy himself that the person concerned under
stands and is able to communicate in the language in which the
inquiry is being held. If not so satisfied, the inquiry must be
adjourned to allow the case presenting officer to secure an
interpreter. In the instant case, the Adjudicator indicated to the
Case Presenting Officer that he was not satisfied that the
applicant understood what was going on and inquired as to the
possibility of obtaining an interpreter in the Tonga language.
He was advised that nobody in Toronto spoke Tonga. Following
an adjournment, the inquiry resumed, the Adjudicator having
decided to "proceed with the inquiry and ... see how things
go". Things did not go well and the Adjudicator again
adjourned the matter, stating that he was "just not satisfied ...
that he [applicant] does in fact understand and can proceed
without an interpreter". The further adjournment was granted
so that the Commission might make additional efforts to locate
an interpreter. A Tonganese interpreter still could not be
unearthed and when the inquiry resumed the Adjudicator
announced that he was "prepared to relax somewhat the
requirements concerning a person concerned's ability to under
stand and communicate, and ... attempt once again to proceed
with the inquiry".
Held, the application should be allowed and the deportation
order set aside. The Adjudicator acted without jurisdiction or
erred in law in conducting the inquiry without an interpreter.
His duty to conduct an inquiry was subject to the requirement
that an interpreter be provided if required to enable the person
concerned to understand and communicate. He had no right to
relax the normal standard. That it may be impossible to
conduct an inquiry if an interpreter cannot be found does not
dispense with the requirement.
COUNSEL:
A. Semenovs for applicant.
M. Duffy for respondent.
SOLICITORS:
Ansis Semenovs, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
LE DAIN J.: In this section 28 application to
review and set aside a deportation order the single
ground of attack is that the Adjudicator acted
without jurisdiction or erred in law in conducting
the inquiry without an interpreter although he was
not satisfied at the outset that the applicant could
understand and communicate sufficiently in Eng-
lish and he only proceeded with the inquiry
because an interpreter in the applicant's language
could not be found.
Paragraph 27(2)(c) of the Immigration Regula
tions, 1978, SOR/78-172 requires an adjudicator
to determine at the beginning of an inquiry wheth
er an interpreter will be required as follows:
27....
(2) Subject to subsection (1) and before any evidence is
presented at the inquiry, the adjudicator shall satisfy himself
that
(e) the person concerned is able to understand and communi
cate in the language in which the inquiry is being held.
Subsection 27(3) of the Regulations provides
that where the adjudicator is not satisfied that the
person concerned is able to understand and com
municate in the language in which the inquiry is
being held he shall adjourn the inquiry to enable
the case presenting officer to obtain the services of
an interpreter.
Section 28 of the Regulations provides further
for the right to an interpreter as follows:
28. Where the services of an interpreter are required at an
inquiry to enable the person concerned to understand and
communicate at the inquiry,
(a) the interpreter shall be provided at no cost to that person;
and
(b) the adjudicator presiding at the inquiry shall administer
an oath to the interpreter whereby the interpreter swears to
translate accurately to the best of his ability all the questions
asked, answers given and statements made at the inquiry and
any documents submitted to the adjudicator in the course of
the inquiry.
Section 29 of the Regulations provides that after
the requirements of sections 27 and 28 have been
met the case presenting officer shall read and file
the report or direction giving rise to the inquiry, or
where there has been an arrest pursuant to subsec
tion 104(2) of the Act, as in the present case, shall
inform the adjudicator of the allegations that have
been made against the person concerned for pur
poses of the inquiry, and after these requirements
have been met the adjudicator shall inform the
person concerned of the reasons for the inquiry,
the allegations that have been made and the possi
ble consequences of the inquiry.
The applicant is from Tonga. After some ques
tioning of him at the beginning of the inquiry the
Adjudicator said to the Case Presenting Officer:
I am not satisfied that Mr. Faiva understands what has gone on
so far at this inquiry. Do you know if it will be possible to have
an interpreter in the Tonga language when we come back for
the resumption of the inquiry? It appears that Mr. Faiva is
having some difficulty in understanding what is going on.
The Case Presenting Officer informed the
Adjudicator that the Commission had attempted,
but been unable, to find an interpreter. He said
that "there is nobody in the Toronto area who
speaks Tonga". The inquiry was adjourned and
upon its resumption the Case Presenting Officer
informed the Adjudicator of the further efforts
that had been made to find an interpreter, all to no
avail. The Adjudicator then indicated his intention
to proceed with the inquiry as follows:
Well, I can appreciate the difficulty that the Commission is
having in obtaining a Tongan interpreter, but what I will ...
intend to do is to proceed with the inquiry and will see how
things go. We will see how much Mr. Faiva understands or
does not understand and I will determine whether or not I can
proceed with the inquiry at a later point.
After some questioning of the applicant to deter
mine whether he understood the nature of the case
against him there was the following exchange be
tween the Adjudicator and the Case Presenting
Officer:
ADJUDICATOR:
And notwithstanding the difficulties the Commission is
having I can not in my reading of the Act and Regulations
proceed in a situation where the person concerned is not
provided with an interpreter and does not understand the
proceeding. 1 am just not satisfied from what is before me
now that he does in fact understand and can proceed without
an interpreter. I am not unsympathetic with the Commis
sion's problem here but you must understand the require
ments 1 have. I feel that based on the information before me,
an interpreter is necessary.
CASE PRESENTING OFFICER:
Well, yes, let us presume hypothetically that it is impossible
to obtain an interpreter in a month's time, what action do
you propose then?
ADJUDICATOR:
All I can tell you is I cannot proceed with this inquiry in the
absence of an interpreter.
I am prepared to grant an adjournment to you to ... so that
the Commission can attempt to locate an interpreter.
After some further discussion by the Case Pre
senting Officer and the applicant's counsel as to
the applicant's capacity to understand and com
municate in English the Adjudicator adjourned the
inquiry with the following statement:
Gentlemen, this is what 1 propose to do. In fact, this is what I
am going to do. I am going to adjourn the matter to another
day. My purpose in doing so are three fold. Firstly, during the
adjournment, it may be possible and I understand the possibili
ty is a bleak one for the Commission to obtain a Tonganese
interpreter.
The second reason 1 am adjourning is that the Commission has
indicated that they would be agreeable to a friend or a relative
of Mr. Faiva acting as interpreter at this inquiry, and I am
granting that adjournment in order that that possibility might
be further explored.
The third reason I am adjourning is that the Commission has
alleged that Mr. Faiva understands English to a greater extent
than he has indicated at this inquiry and I would be prepared at
the resumption of the inquiry to hear from the Commission
concerning this issue.
It is for these three reasons that I have adjourned the inquiry
today.
Now the difficulty I have of course is that I am required to hold
an inquiry by virtue of the fact that Mr. Faiva was arrested. I
am also required to ensure an interpreter is present at any
inquiry whenever required.
It appears at this point in time that I have conflicting respon
sibilities. At the resumption of the inquiry I will decide what
the next step at the inquiry will be.
Upon the resumption of the inquiry the Case
Presenting Officer informed the Adjudicator that
every possible effort to find an interpreter who
could speak Tonga had been made but they had
been unsuccessful. After discussion with the Case
Presenting Officer as to whether it would be
proper in these circumstances to proceed with the
inquiry, the Adjudicator said:
It appears, gentlemen, I am caught in the horns of a dilemna
[sic], and I am faced with the requirement of conducting an
inquiry, and I am faced with the requirement to provide an
interpreter, if I feel that the person concerned requires an
interpreter to understand and communicate at the inquiry, and
no interpreter is presently available.
After the recess he made the following
statement:
As Mr. Ringer has pointed out, because of the arrest that has
occurred, I am required to conduct an inquiry concerning Mr.
Faiva, and I am required to conduct that inquiry as expedi
tiously as possible. On the other hand, the Regulations, specifi
cally Regulation 28, set out that where the person concerned at
an inquiry requires an interpreter to understand and communi
cate at the inquiry, an interpreter shall be provided, and there is
no interpreter available today.
There has been no interpreter available in the past, and it may
be that no interpreter will be found in the future, or at least in
the near future. As I indicated earlier, I am therefore faced
with conflicting requirements.
I am aware that Mr. Faiva's native tongue is Tonganese, that
that is the language with which he has the greatest fluency. I
also understand that Mr. Faiva has some facility in the English
language. There are doubts in my mind that Mr. Faiva is
sufficiently conversant in the English language to understand
and communicate at the inquiry. I would say, frankly, that if
Mr. Faiva's native tongue was Portuguese or Spanish or some
other language for which an interpreter could be readily pro-
vided, or provided in a short period of time, I would have no
hesitancy in adjourning the inquiry to provide an interpreter.
The difficulty with this case is that no such interpreter is either
available now and/or, quite possibly, in the near future, and it
may not be possible at all.
Faced with my conflicting requirements, I am prepared to relax
somewhat the requirements concerning a person concerned's
ability to understand and communicate, and I will attempt once
again to proceed with the inquiry. If, however, Mr. Faiva does
not indicate sufficient understanding or sufficient ability to
communicate here, I will adjourn immediately. In other words,
although 1 am prepared to relax somewhat the standard that
would normally apply, there is a bottom line, and that bottom
line will be the determination.
The applicant was then examined as a witness.
The Adjudicator found that the applicant was a
person described in paragraph 27(2)(e) of the
Immigration Act, 1976, S.C. 1976-77, c. 52,
namely, one who entered Canada as a visitor and
remained therein after ceasing to be a visitor. He
then proceeded to consider whether he should
make a deportation order or issue a departure
notice. He began the statement of his decision on
this second issue as follows:
Mr. Faiva, I have considered the evidence and I have reached a
decision. Firstly I will state 1 am satisfied from your testimony
that your command of the English language is and has been
sufficient for you to effectively communicate at this inquiry and
to understand the questions put to you and all other matters at
this inquiry.
What the foregoing shows is that the Adjudica
tor was unable to satisfy himself before any evi
dence was presented, as required by subsection
27(1) of the Immigration Regulations, 1978, that
the applicant was able to understand and com
municate without the aid of an interpreter. Indeed,
his statements show that he was of the view that
an interpreter was required. He adjourned the
inquiry twice to permit the Commission to find an
interpreter who could speak Tonga. When he
learned that this was not possible he took the view
that he had a duty to conduct the inquiry without
an interpreter if that was possible. He said that he
was prepared to relax the normal requirement or
standard concerning ability to understand and
communicate at an inquiry although there was a
definite limit as to how far he was prepared to go
in this respect. Although I appreciate the difficulty
in which the Adjudicator found himself and the
conscientiousness with which he approached the
issue before him, I am of the opinion that he acted
without jurisdiction or erred in law in proceeding,
in those circumstances and on that basis, to con
duct the inquiry and to receive the applicant's
evidence without an interpreter. His duty to con
duct an inquiry was subject to the requirement
that an interpreter be provided if required to
enable the person concerned to understand and
communicate. If an interpreter was required,
which was clearly his opinion, and could not be
provided, he no longer had a duty to proceed with
the inquiry. He did not have the right to do so. He
did not have the right to relax the normal standard
or requirement concerning ability to understand
and communicate in the language of the inquiry.
This defect or error could not in my opinion be
covered by the Adjudicator's statement at the
conclusion of the inquiry, after the applicant had
been made to give his evidence without the aid of
an interpreter, that he was by then satisfied that
the applicant had had a sufficient understanding
and ability to communicate. That statement must
inevitably be viewed in the light of the Adjudica
tor's earlier statement that he was prepared to
relax the normal standard or requirement concern
ing ability to understand and communicate. But
the essential point here in my opinion is that an
adjudicator does not have authority to proceed
with an inquiry and to receive the evidence of the
person concerned without an interpreter unless he
is satisfied that the person concerned is able to
understand and communicate in the language of
the inquiry. The Adjudicator was clearly not so
satisfied. The fact that it may not be possible to
conduct an inquiry if an interpreter in the required
language cannot be found does not in my opinion
dispense with the requirement, which is an essen
tial right of the person concerned. He may in fact
be prejudiced although it may reasonably appear
after he has given his evidence, as perhaps it did in
the present case, that he had a sufficient ability to
understand and communicate in the language of
the inquiry.
For these reasons I would allow the section 28
application and set aside the deportation order.
HEALD J.: I concur.
CLEMENT D.J.: I concur.
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.