A-243-89
Xie Wei Ming (Applicant)
v.
Minister of Employment and Immigration
(Respondent)
INDEXED AS: MING V. CANADA (MINISTER OF EMPLOYMENT
AND IMMIGRATION) (CA.)
Court of Appeal, Urie, Marceau and MacGuigan
JJ.A.—Toronto, February 9; Ottawa, February
28, 1990.
Immigration — Refugee status — Application to set aside
exclusion order and decision no credible basis to claim of
Convention refugee status — Chinese national of wealthy
capitalist class fearing return to China due to family back
ground and as left country illegally — Applicant not under
standing interpreter as spoke too quickly, spoke different
dialect and used English words — Application allowed — Not
receiving fair hearing — Ability to understand and be under
stood minimal requirement of due process — Adjudicator's
responsibility to assure himself interpretation competent —
Resolution of objections requiring inquiry, although not as
formal as voir dire, notwithstanding affirmation of under
standing — Importance of ability to express himself in light of
panel's conclusions as to credibility based on "contradictions"
in applicant's evidence — Immigration Act, s. 46.01 inviting
presentation of evidence of human rights record of relevant
country, but not making it mandatory.
Judicial review — Applications to review — Determination
of Convention refugee status claim — Immigrant expressing
difficulty understanding interpreter — Adjudicator not deal
ing with specific objections, but accusing applicant of being
uncooperative — Ability to understand and be understood
minimal requirement of due process — Adjudicator's respon
sibility to assure himself interpretation competent through
inquiry where objections to interpretation raised — Impor
tance of ability to express himself where credibility at issue —
Exclusion order and decision no credible basis for claim set
aside for failure to give fair hearing.
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.
Federal Court Act, R.S.C., 1985, c. F-7, s. 28.
Immigration Act, R.S.C., 1985, c. I-2, s. 46.01 (as added
by R.S.C., 1985 (4th Supp.), c. 28, s. 14).
CASES JUDICIALLY CONSIDERED
APPLIED:
Société des Acadiens du Nouveau-Brunswick Inc. et al.
v. Association of Parents for Fairness in Education et al.,
[1986] 1 S.C.R. 549; (1986), 69 N.B.R. (2d) 271; 27
D.L.R. (4th) 406; 177 A.P.R. 271; 66 N.R. 173.
COUNSEL:
Lorne Waldman for applicant.
Urszula Kaczmarczyk for respondent.
SOLICITORS:
Lorne Waldman, Toronto, for applicant.
Deputy Attorney General of Canada for
respondent.
The following are the reasons for judgment
rendered in English by
MACGUIGAN J.A.: This section 28 [Federal
Court Act, R.S.C., 1985, c. F-7] application seeks
to review and set aside an exclusion order, dated
February 16, 1989, issued against the applicant by
an adjudicator and also to review and set aside the
decision, also dated February 16, 1989, of the
adjudicator and a member of the Convention
Refugee Determination Division ("the panel")
that the applicant did not have a credible basis for
his claim of Convention refugee status. Leave to
commence this application was granted by the
Chief Justice on May 5, 1989.
The applicant, who arrived in Canada in Febru-
ary, 1989, is a citizen of the People's Republic of
China whose family were formerly members of the
wealthy capitalist class. Because of his family
background and because he left the country ille
gally, he claimed he feared being imprisoned if he
were forced to return to China. On the view I take
of the case no further recital of facts is necessary.
Five objections were taken to the impugned
decisions: (1) that the applicant was denied a fair
hearing by reason of inadequate interpretation; (2)
that certain comments made by the adjudicator
gave rise to a reasonable apprehension of bias; (3)
that the panel erred in law in its assessment of the
applicant's credibility in that it misconstrued or
overlooked evidence; (4) that it applied an incor
rect test in determining whether there was a cred
ible basis to the claim; and (5) that the panel lost
jurisdiction in that it reached its decision without
requiring the presentation of certain obligatory
evidence.
In oral argument the applicant abandoned the
fifth objection, but in my view it bears comment
ing on, if only to avoid its resurrection by another
applicant in another case. The argument, as it was
presented in the applicant's memorandum of fact
and law, was based on an interpretation of subsec
tion 46.01(6) of the Immigration Act [R.S.C.,
1985, c. I-2 (as added by R.S.C., 1985 (4th
Supp.), c. 28, s. 14)] ("the Act"), which reads as
follows:
46.01 .. .
(6) If the adjudicator or the member of the Refugee Divi
sion, after considering the evidence adduced at the inquiry or
hearing, including evidence regarding
(a) the record with respect to human rights of the country
that the claimant left, or outside of which the claimant
remains, by reason of fear of persecution, and
(b) the disposition under this Act or the regulations of
claims to be Convention refugees made by other persons who
alleged fear of persecution in that country,
is of the opinion that there is any credible or trustworthy
evidence on which the Refugee Division might determine the
claimant to be a Convention refugee, the adjudicator or
member shall determine that the claimant has a credible basis
for the claim.
This subsection clearly invites the presentation
of evidence of the human rights record of the
relevant country and of the disposition of other
Convention refugee claims from that country, but
it does not, as the applicant would have contended,
make it mandatory. Such evidence is not a pre-
condition to the making of a decision that no
credible basis for refugee status exists, and, if no
such evidence is presented by either the applicant's
counsel or the case presenting officer, it is in no
way incumbent upon a panel to require the presen
tation of such evidence before arriving at a
decision.
At the first session of the inquiry on February 2,
1989, the inquiry was adjourned so that the appli
cant could be represented by counsel. At his
request the adjudicator designated a counsel for
him.
At the first session, the adjudicator asked the
applicant, before swearing in the interpreter,
whether he understood her and he replied that he
did. Mrs. Too, a different interpreter, was present
at the remaining two sessions of the inquiry on
February 13 and 16, 1989. The adjudicator intro
duced the interpreter by saying that she was
known to be proficient, but he did not ask the
applicant if he understood her before swearing her
in.
After several affirmations by the applicant that
he understood particular statements of the
adjudicator, the following dialogue transpired
(Case at pages 10-11):
ADJUDICATOR: Now, if the evidence should show that you meet
the requirements of the Act under Subsection 9(1) as explained
and your admission to Canada will not be contrary to the Act
and/or the Regulations then I will allow you to come into
Canada as an immigrant.
Do you understand that, sir? Could you answer verbally
please?
PERSON CONCERNED: Can you, can you say it slowly.
ADJUDICATOR: Slowly? This lady is translating it for you, I'm
not. You're not listening to my, to my speech.
PERSON CONCERNED: Because I told you to speak slowly. I
cannot hear clearly.
ADJUDICATOR: Oh, you cannot hear this lady clearly?
PERSON CONCERNED: Too fast.
ADJUDICATOR: Are you saying that this lady is speaking too
quickly?
PERSON CONCERNED: Yes, too fast.
ADJUDICATOR: Okay. What didn't you understand?
PERSON CONCERNED: Because normally I speak very, very
slow. I don't speak that fast.
ADJUDICATOR: I'm not concerned with that at this point. I'm
saying what didn't you understand?
PERSON CONCERNED: Nothing, I cannot understand but if you
can speak slowly then I will ...
ADJUDICATOR: You mean if the lady can speak slowly?
PERSON CONCERNED: Yes.
ADJUDICATOR: It seems to me you're speaking at the same rate
from what I can gather as Mrs. Too.
PERSON CONCERNED: But you speak too fast.
ADJUDICATOR: Who is speaking too fast? I want to, I want to
try to clarify that. Who is speaking too fast?
PERSON CONCERNED: You interpret too fast. I cannot hear
completely.
ADJUDICATOR: WIl, I think Mr. Xie the onus is on you to also
listen carefully and that my impression that you're not listening
as carefully as you should.
PERSON CONCERNED: I ' m listening.
ADJUDICATOR: Okay. I'm glad to hear that.
COUNSEL: Well, with, with respect, Mr. Adjudicator, perhaps
we could just have a very short review.
ADJUDICATOR: A short review, Mr. Scott?
COUNSEL: Yes, Mr. Adjudicator. Mr., Mr. Xie, the words on
this paper ...
ADJUDICATOR: Excuse me, Mr. Scott, what do you mean a
short review? you want to recess or ...
COUNSEL: No, no. No. Just to make sure that he understands.
ADJUDICATOR: Okay. Well, he said he's ... sorry, go ahead.
I think that I'm going to continue and he, he has requested that
Ms., Mrs. Too speak more slowly and I've entertained that and
I, I'm sure Mrs. Too has also entertained it and will speak, try
to speak more slowly and therefore and I'm going to continue
on until such time as Mr. Xie indicates that he does not hear or
understand.
Following that exchange, the applicant replied
some six times, when questioned, that he under
stood. Taken by itself, any problem of interpreta
tion of the February 13 session would thus appear
to have been resolved. However, at the beginning
of the next session on February 16, the following
exchange occurred between the applicant's coun
sel, S. Scott, and the adjudicator (Case at pages
20-21):
COUNSEL: Yes, it has been completed, Mr. Adjudicator, Hon
ourable Member. Be [sic], before we resume however there is a
matter of some considerable importance which I must now
raise.
It will be remembered that last day, on, on not less than two
occasions, Mr. Xie raised the issue of the interpreter and the
speed with which she was interpreting the proceedings. He
could not of course convey to me what was going on because,
we were unable to communicate one with the other.
However, on the night of last day, which I take was Monday,
Mr. Xie phoned Jenny Han (sic.) whom I had retained as my
interpreter. He was in a state of confusion and distress. He had
not understood the interpreter. His confusion he said arose
from two separate and distinct matters or issues.
The first being the speed with which the interpreter was
speaking and the other was the difficulty, I guess it was three
pardon me Mr. Adjudicator. He was confused with her dialect
and felt that she was mixing English words with the Cantonese
dialect when she was unable to make a, a word to word
interpretation.
Ms. Han (sic.) was concerned she called me and we met
yesterday when she informed me in detail.
ADJUDICATOR: I didn't hear that, Mr. Scott.
COUNSEL: Pardon?
ADJUDICATOR: I didn't hear what you said. You, you ...
COUNSEL: When she informed me in detail.
ADJUDICATOR: SO ...
COUNSEL: And so, Mr. Adjudicator, I feel it is my responsibili
ty to raise these issues with you before we proceed.
ADJUDICATOR: Well, Mr. Scott, Mrs. Too has interpreted for
many years at this, at this, at this office as you are quite well
aware yourself no doubt.
COUNSEL: I cannot say, sir. I have not seen Mrs. Too prior to
last time.
ADJUDICATOR: Okay. Perhaps you're not but I am aware of it.
COUNSEL: Yes.
ADJUDICATOR: And I'm saying that no one has ever com
plained about Mrs. Too's interpretation in terms of, in terms of
my experience conducting these hearings which go back about
ten years and Mrs., Mrs. Too has interpreted for, for many
persons who come from the same place as, as Mr. Xie. And
apart from Mr. Xie saying that Mrs. Too is speaking too
quickly which Mrs. Too has made every effort to speak more
slowly, note from my experience she has spoken at the same
rate as she has done with others.
I have no reason at his point to doubt Mrs. Too's competence in
interpreting at this inquiry. I have reasons, however, to be
suspicious of your, your, your, your client's attitude at this
inquiry since in my opinion, by his posture, by his posture, he
displays a certain sort of lack of cooperation, if I may put it
that way. And therefore I'm going to continue this inquiry with
Mrs. Too until some specific issue arises during the course of
this inquiry.
I'll ask for Mr. Warrington's input, please?
I.R.B. MEMBER: I would only add Mr. Adjudicator that Mrs.
Too should inform and will you inform the person concerned,
Mr. Xie, that if there's, are any questions regarding the inter
pretation to ask you to repeat anything and also that you will
continue to speak slowly.
On this basis the applicant contended that he
was denied a competent interpreter as is his right
pursuant to sections 7 and 14 of the 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]]. It was argued that, when
an objection is taken to the competency of an
interpreter, the proper course for the tribunal is to
stop the proceedings and conduct a voir dire to
ensure that the interpreter is competent, with the
refugee claimant or his counsel allowed to partici
pate by asking relevant questions of the interpret
er, calling evidence on the question of the inter
preter's competence and making submissions in
this regard. It was said that, if the interpreter is
found not to be competent, the proceedings cannot
continue until a competent interpreter is provided.
It is common ground that, as Wilson J. put it in
Société des Acadiens du Nouveau-Brunswick Inc.
et al. v. Association of Parents for Fairness in
Education et al., [1986] 1 S.C.R. 549, at page 622
"the ability to understand and be understood is a
minimal requirement of due process" and that the
applicant was entitled to a competent interpreter.
It was, however, argued by the respondent that
the problem was reasonably resolved by the panel
in its decision to proceed, subject to specific issues
which might arise. It was said that the reasonable
ness of this course was indicated by the fact that
the applicant's counsel appeared to abandon any
further objection and by the fact that the applicant
subsequently seemed satisfied. (Case, at page 36):
Q. Mr. Xie, up until now, have you had any problems under
standing Ms. Shirley Too?
A. I understand.
Q. Completely?
A. Today. You translate right.
ADJUDICATOR: You mean that she translated correctly?
CASE PRESENTING OFFICER: Yes.
PERSON CONCERNED: Maybe you used to speak in English,
that's why your speech is quite fast.
However, I find myself unable to take such a
light view of the matter. The applicant's counsel
raised three objections to the interpretation: the
speed with which the interpreter was speaking; her
dialect in Chinese; and her incorporation of Eng-
lish words. The adjudicator in his comments took
note only of the first objection, one which could
probably indeed have been resolved by the inter
preter's speaking more slowly. But the other two
problems could not be so easily dealt with, certain
ly not without some form of inquiry. The adjudica
tor did not even ask Mrs. Too if she felt there was
a problem. Instead, he asserted his belief in her
competence and blamed the applicant for lack of
cooperation. No doubt the interpreter had often
proved her competence before, but in a language
with as many dialects as Chinese problems of
comprehension may possibly arise even between
people who may be said to speak the language
competently.
In my view the objection raised by the appli
cant's counsel was a serious one. Once raised, it
required resolution. It could not be dismissed by
the adjudicator without inquiry, although it is
doubtful that an inquiry as formal as a voir dire as
used in a criminal trial would be necessary or
desirable. Given the fact that the applicant's coun
sel could not communicate with the applicant
during the hearing except through the very inter
preter whose competence vis-Ã -vis his client was
in question, I cannot take as decisive the counsel's
failure to continue to press his objection after a
negative ruling by the adjudicator. It was the
adjudicator's responsibility to assure himself that
the interpretation was competent.
Nor can I take as decisive the subsequent affir
mation by the applicant that he understood the
proceedings. No doubt he was able to follow in a
general way, but the very objection he raised at the
beginning of the third session, in the face of previ
ous similar avowals that he understood, must stand
as a caution.
Moreover, the issue is not only whether the
applicant understood. It is also whether he could
adequately express himself through this interpret
er. This factor assumes special importance in light
of the reliance of the panel on the applicant's
credibility in arriving at its conclusion. It was the
"contradictions" in his evidence that caused the
panel (Case, at page 47) to question his claim to
have a well-founded fear of persecution based on
his particular social group.
Taking the issue of the competence of the inter
preter in its total context, I must conclude that the
applicant did not receive a fair hearing. In the
result, I would allow the section 28 application, set
aside the decisions under attack, and refer the
matter back to a differently constituted panel for
rehearing.
URIE J.A.: I agree.
MARCEAU J.A.: 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.