MB6-07334

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / N° de dossier de la SAR : MB6-07334 / MB6-07335 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXXXXXX XXXX XXXX Personne en cause Appeal considered at Ottawa, Ontario Appel instruit à Date of decision September 28, 2017 Date de la décision Panel Me Christina Harrison Baird Tribunal Counsel for the person who is the subject of the appeal Michael Loebach Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX1 and XXXX XXXX XXXX2, citizens of Lebanon, appeal the decision of the Refugee Protection Division (RPD) rejecting their claims for refugee protection. The Appellants request to submit new evidence and to have an oral hearing. The Appellants request that the Refugee Appeal Division (RAD) set aside the decision of the RPD and substitute its own finding that they are Convention refugees or persons in need of protection. [2] The Minister did not intervene in the Appeal. DECISION [3] Pursuant to s. 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter back to the RPD for re-determination by a different member. [4] The appeal is allowed. BACKGROUND [5] The Appellants allege that if they are returned to Lebanon they may be killed by their former neighbour, whom they suspect of being a terrorist, or by his associates. [6] The RPD determined that the Appellants had failed to establish their credibility and that they had an Internal Flight Alternative (IFA) from their home in Aley to Al Bahharah. [7] The Appellants submit that there has been a breach of natural justice due to interpretation problems and a reasonable apprehension of bias at their RPD hearing. They state that although they raised inadequate interpretation at the hearing, they did not pursue a complaint about either interpretation or bias because they believed they had to conclude the matter with the RPD Member, whose mandate was expiring in twelve days. The Appellants also argue that the RPD erred in numerous ways, including by failing to consider the totality of the evidence, ignoring or misconstruing the evidence, misstating the standard of proof, failing to properly assess credibility, misstating relevant sections of IRPA, improperly applying the test for state protection, and improperly analysing the availability of an IFA. For these reasons, the Appellants request that the RAD grant the appeal. [8] This matter has been considered by a previous RAD member, who dismissed the appeal and confirmed the decision of the RPD on 18 May 2016. On 27 September 2016, the Federal Court set aside that RAD decision and remitted the matter for re-determination by a different RAD member in accordance with the law. SCOPE OF THE RAD APPEAL [9] The RAD is required to consider carefully the decision of the RPD and to carry out its own analysis of the record to determine whether, as submitted by the Appellants, the RPD erred. In this appeal, the determinative issue is whether there was a breach of natural justice, in which case, no deference is due to the RPD. Having made its own analysis of the record, the RAD may either confirm the decision of the RPD, or set it aside and substitute its own decision.3 The RAD must provide a final determination unless it cannot do so without hearing the oral evidence presented to the RPD. Only in cases where it cannot make a final determination, the RAD may refer the matter back to the RPD for re-determination. 4 DECISION ON WHETHER TO ADMIT NEW EVIDENCE [10] The Appellants submitted as new evidence on appeal: * The male Appellant's Written Statement, which was sworn on 29 February 2016; 5 and * Exhibit G to that Written Statement, Counsel's Affidavit dated 29 February 2016, accompanied by Counsel's notes taken during the RPD hearing.6 [11] The test for admissibility of new evidence is provided in s. 110(4) of IRPA, which states that the person who is the subject of the appeal (here, the Appellants) may present only evidence that arose after the rejection of their claim, or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. In addition, the jurisprudence requires the evidence to be relevant, new and credible.7 [12] I find that a portion of the Written Statement presented by the Appellants is new evidence within the meaning of s. 110(4) of IRPA; specifically paragraphs 11 to 15, which explain the Appellants' perspective on the interpretation difficulties and the perception of bias on the part of the RPD Member. The Written Statement was created after the rejection of the Appellants' claims. In addition, the Appellants could not reasonably have been expected in the circumstances to have presented this evidence at the time of the rejection. It was only upon reading the RPD Reasons in conjunction with the transcript prepared at the request of counsel,8 that the Appellants "fully realize[d] the importance of counsel's advice" regarding the quality of interpretation and the apprehension of bias. [13] I find that Counsel's affidavit and notes taken during the RPD hearing are also new evidence within the meaning of s. 110(4) of IRPA. The affidavit was created after the rejection of the Appellants' claims. The notes appended to the affidavit were created before the rejection and were reasonably available at the time of the rejection. However, the male Appellant swears that he and his wife instructed Counsel not to pursue a complaint about either the interpretation or the perceived bias because they believed that they had to proceed with the interpreter and the RPD Member who had been assigned to them. Moreover, they did raise the interpretation difficulties during the hearing. From the RPD Member's dismissive responses, I find it was reasonable for them to conclude that they had little choice but to proceed. The Federal Court has recognized the difficulty that counsel and their clients face when considering whether to allege a reasonable apprehension of bias: not least, the risk of alienating the tribunal. Scholars have noted that parties may find it better to hope for the best in the tribunal's decision, and if necessary, to make the allegation of bias in the forum best equipped to deal with it. 9 In the circumstances of this case, I find the Appellants could not reasonably have been expected to submit Counsel's affidavit and notes prior to the rejection. [14] I find that the documents presented by the Appellants are also admissible in accordance with the jurisprudential criteria because they are relevant, new and credible. The content of the documents is clearly relevant to the Appellants' allegation that there was a breach of natural justice. Both the Written Statement and Counsel's affidavit are new and, as sworn testimony, they benefit from a presumption of truth. Counsel's notes were taken contemporaneously with the RPD hearing and record Counsel's impressions of what occurred. They are new in the sense that they support an argument that could not fruitfully have been made before the rejection of the claim. The notes are a credible reflection of Counsel's thoughts at the time of the hearing. Paragraphs 11 to 15 of the Written Statement are admitted as Exhibit A-1. Counsel's affidavit and notes are admitted as Exhibit A-2. [15] The Appellants' request to adduce new evidence is granted in part. DECISION ON WHETHER TO HOLD AN ORAL HEARING [16] The general rule is that the RAD must proceed without a hearing, on the basis of the record of the proceedings of the RPD.10 The RAD only has discretion to hold an oral hearing when there is additional documentary evidence and all of the conditions in s. 110(6) are met.11 I note, in particular, the requirement in that section that the new evidence have the potential to justify accepting or rejecting the claim. [17] I have held that the documents proposed by the Appellants meet the statutory and jurisprudential criteria for admission. However, if I accept the content of those documents, the appropriate relief is not to accept or reject the claim. Rather, if the Appellants are successful in persuading the RAD that there was a breach of natural justice at the RPD, then the appropriate relief is to send the matter back to the RPD for a true de novo determination by a different panel. Therefore the evidence that I have accepted raises no issue with respect to the credibility of the Appellants that is both serious and central to my decision, and that would justify accepting or rejecting this claim, in accordance with the requirements s. 110(6) of IRPA. [18] The Appellants' request for an oral hearing is denied. ANALYSIS [19] I have listened to the recording of the hearing before the RPD and analyzed the RPD Record. I have considered all the arguments of the Appellants. Having conducted an independent analysis of the record, I find that there has been a breach of natural justice and procedural fairness. The RPD member failed to deal appropriately with the obvious communication difficulties between the interpreter and the other parties in the hearing room. Inadequate interpretation [20] The interpretation in refugee proceedings must be continuous, precise, competent, impartial and contemporaneous.12 The Appellants state that they understood about 90 percent of the interpretation. However, the interpreter's accent made it difficult and his behaviour interfered with the hearing, confusing the male Appellant while he was giving his testimony. The male Appellant alleges that: "There were crucial points that he was confusing and took a long time to translate, this because he was supposed to just translate what was being said, however he would ask me questions about what I said and at times add more to what I had said. This confused me because I was not sure if the questions were coming from the judge or from him."13 [21] The Appellants state that they were not asked at the beginning of the RPD hearing whether they understood the interpreter. Furthermore, they state that when the female Appellant attempted to raise an error in interpretation, the RPD member did not allow her to speak. When the Appellants raised the issue of interpretation again toward the end of the first hearing session, they submit RPD did not deal with it appropriately. [22] On a balance of probabilities, I find that the interpretation in this hearing was neither continuous, nor contemporaneous, nor precise. The audio recording shows frequent requests from the interpreter that participants in the hearing repeat themselves; added to occasions where the interpreter spoke for unduly long periods in Arabic, referred to the Appellant in the third person, or summarized rather than interpreted the testimony; as well as times when the interpreter neglected to interpret at all. This behaviour resulted in frustration, confusion and time wasted, and, in my view, contributed materially to the finding that the male Appellant was not credible. Moreover, I find that the RPD's conclusion that an Internal Flight Alternative existed for the Appellants cannot be severed from the problematic language interpretation of their testimony. As a result there was a breach of the Appellants' right to be heard and of procedural fairness. [23] The audio recording of the RPD hearing and the transcript provided by the Appellants show that indeed the RPD did not ask the Appellants to confirm that they understood the interpretation at the beginning of the hearing. These records also show the following exchange about an hour and a half into the hearing, during which the female Appellant attempted to interject and identify an error in interpretation: "RPD: So when you went and filed the complaint to the police, just exactly what did you tell the police? Interpreter: Sorry? RPD: When you filed the complaint to the police, just exactly what did you complain about? Male Appellant through Interpreter (MA-I): I went to the police station, I have a problem with this person, and I report, I made complaint against XXXX XXXX in the police station. RPD: What was the complaint my question was. MA-I: In June 17 before I made my complaint to the police on June 17th. On June 17th a problem occurred you know with this between me and this person. And that problem, and that incident was the main issue, the main thing for that incident I went to the police to report. RPD: Ok, my question was sir, what was the complaint that you made to the police. MA-I: I told them I got a problem, a problem occurred, you know, with XXXX XXXX between me and XXXX XXXX. They told me we got your report, we got your complaint, and don't worry, your report, your complaint, we got it. RPD: Stop for one minute please sir. I just want to know what the complaint was that you made to the police. What was the complaint? What was the complaint you made to the police? MA-I: I told you, this is what I told you. The problem occurred between me and XXXX XXXX This is the complaint itself, so I report that to the police. RPD: When you went into the police station, excuse me madam if you could remain silent for now. Do you need to go to the bathroom? Counsel: Do you need a ... Female Appellant: No, no. I want to answer question. Counsel: No, you, you may have an opportunity to testify later. You cannot help him, assist him in answering the questions. Later on ... Female Appellant: No I am not asking you but just one word ... RPD: No you cannot ... Counsel: Oh, she is noting the translation, she's saying that one word, is being translated incorrectly. RPD: Well, we'll get over that. Sir. Just answer my question sir. When you went to the police what did you say to them? What was the nature, and how did you talk to them, what did you say to the police? Interpreter: I am telling him to wait, to calm down, to take your time, I translate, I interpret, after that he can answer.14" [24] The change in the RPD Member's tone of voice on the recording during this exchange indicates to me that she was becoming exasperated by the male Appellant's apparent failure to answer her question and by the female Appellant's attempt to clarify. The Interpreter's final speech appears to indicate that he perceived the male Appellant was losing his composure also. There is a loud and long exhalation of breath on the microphone shared by the male Appellant and the Interpreter while the Interpreter is speaking. On at least two occasions prior to the above-quoted exchange, the RPD observed that the male Appellant was not answering her questions. 15 The RPD and Counsel made efforts to speak slowly in short phrases. Nonetheless, the Interpreter apologized and asked them to repeat themselves in English at least eight times during the first hour and a quarter of the hearing.16 At one point, the Interpreter referred to the male Appellant in the third person and summarized what he was talking about rather than interpreting it.17 At another point, the Interpreter acknowledged that he "got most of it" without seeking clarification or repetition.18 At several points throughout the hearing, the Interpreter failed to interpret the speeches of the RPD or Counsel to the male Appellant. [25] In these circumstances, I find that it was an error for the RPD to dismiss the female Appellant's observation without inquiring further about the adequacy of the interpretation. First, the clarification that the male Appellant was referring to a physical altercation, rather than simply an interpersonal "problem" may have saved all of the hearing participants a great deal of frustration and time. Second, and more importantly, had the Member made the inquiry, the RPD may have come to the correct conclusion that the interpretation was not adequate, and halted the hearing to obtain adequate interpretation. Since the Appellants' right to be heard was engaged, the RPD had a duty to follow up on the nuance raised by the female Appellant. In Olvera-Paoletti, the Federal Court found that fairness had been impacted by the RPD's conduct of the hearing, including questions, unnecessary commentary, the handling of interpretation, and preventing a female co-claimant from speaking to offer clarification.19 [26] The RPD did listen to the female Appellant on the question of interpretation near the end of the first session of the hearing.20 The female Appellant explained her view that an interpretation error had occurred when the Interpreter used the word "problem", a general term, instead of "conflict" or "altercation", which would have been a more specific answer to the RPD's questions about the content of the complaint to the police aboutXXXX XXXX XXXX. However, the RPD denied that the nuance between the words "problem" and "conflict" would affect her decision. Moreover, the RPD chastised the Appellants that they should have made any complaint about interpretation at the beginning. Counsel objected that her client had tried but had been refused the opportunity to speak, and that the nuance had made a difference, in the light of the RPD's repeated questions about the content of the complaint to the police. [27] During an exchange about the ownership of the apartment which was at the root of the altercation with the alleged agent of persecution, the Member declared herself unable to understand the male Appellant's fear of returning to the apartment: "RPD: So why would you want to hold on to the apartment if you are afraid to live there? MA-I: This is the heritage from my father. RPD: So do you intend to go back one day, is that the issue? MA-I: I don't have a security right now to return back there. RPD: I don't understand that answer. MA-I: Right now, if you want, I mean if you will, if like, if I, if I, like if I force to go there, or I return back to go there, I don't have a security to live there. There is no security for me to go back there. I have a fear. I cannot go back. RPD: So why do you still have the apartment? MA-I: The whole building and the apartment, I am not by myself own them. This is a property, we are sharing for owning it. My brother also has a share. Or my mother also has a share in that property. RPD: In the whole property or just in your apartment? MA-I: The whole thing. RPD: Your mother has a share, and your brother has a share, where does your brother live? MA-I: He has another apartment in Aley. It's a little bit far. RPD: But he has a share in your apartment. Counsel: I believe he said the whole building belongs to the family. It is a family property inheritance. I respectfully object to this line of questioning because the fact that the person has a ... RPD: Can you go slower please? Counsel: Okay, you can translate what I said right now. I fail to see any further relevance once he answered that currently there is no safety for him so then the matter of having, owning a property, having a co-ownership to a family inheritance there does lower his subjective fear by any amount. RPD: Are you giving me submissions? Counsel: I am objecting to the line of question... RPD: Then if you please give the interpreter time to interpret. Okay the claimant indicating that he owned his apartment. And it was a separate unit. Does the unit that you own, do you own it exclusively or is the unit you own also owned by your mother and your brother. MA-I: No, with a partner. RPD: So you don't own it exclusively. MA-I: No. RPD: Thank you. That's not what you said before. MA-I: No, I wasn't at the time maybe understand your question fully.21" [28] In my view, the Appellant answered directly the RPD's question about the ownership of the apartment.22 However, the RPD continued to seek clarification for a further five minutes, ultimately concluding incorrectly that the male Appellant had changed his answer. This exchange also should have been a cue to the RPD Member to verify the adequacy of the interpretation. [29] When the Appellants raised their difficulties to understand the Interpreter, the RPD spoke to the Interpreter on the record, indicating: "... classic Arabic is classic Arabic as far as I'm concerned. ... I don't think that you should be in a position that you are feeling that you have to defend your interpretation. You are professional and you've been doing this for a long time."23 Then she asked the male Appellant whether he understood the interpreter. The male Appellant answered through the interpreter: "90 percent I understand. But some a few words a little bit different. But..." He never completed the last sentence. The next speech was by the Member, who stated: "I don't know what to do because we are running out of time here." After an exchange with Counsel, the Member added, "It's just I have to get everything wound up before the end of this month."24 The hearing was adjourned to reconvene on 18 December 2015. The same interpreter appeared on that date and further difficulties with interpretation were noted by the RPD, Counsel and the female Appellant. [30] I have considered whether any conduct on the part of the Appellants constituted waiver of their rights. They did not waive their rights. First, the male Appellant clearly stated that he did not speak enough English to proceed without interpretation. While he indicated that he could understand most of the Interpreter's words, he also used the negative conjunction "but" to begin an explanation that he was not permitted to complete. Second, the Appellants did raise the issue of interpretation at the earliest opportunity.25 Counsel stated objections on the record and the female Appellant explained why she felt the inadequacy of interpretation was important. Third, in light of the RPD's dismissive response, their knowledge that the Member would be leaving the RPD in about 12 working days, and their strong desire to complete their refugee status determination, the Appellants state they felt considerable pressure to continue the hearing, despite the difficulties. Fourth, the Federal Court has noted that the principle of waiver can be applied to any breach of the rules of natural justice, but it is not universally applied in situations like this one where generalized problems of procedural fairness are co-mingled with a question of bias. 26 [31] In Chan, Justice La Forest acknowledged the possibility that difficulties arising in the process of interpretation can give rise to distorted renderings of evidence, and that information vital to determining factual issues may be lost through imprecise or incomplete translation of testimony.27 While there is no requirement for the Appellants to show prejudice where they have demonstrated serious deficiencies in the interpretation, in my view the prejudice is clear in this case. The RPD stated: "The panel found much of the claimants' evidence and testimony to be inconsistent and implausible giving rise to enough reasons to rebut the presumption of truthfulness on their part. ... The panel finds the evidence in this claim totally untrustworthy and lacking in any credibility and that, on a balance of probabilities, the incidents as described never occurred and therefore, the panel does not believe what the Appellants have alleged in their claim."28 [32] I cannot believe that such a categorical finding was unaffected by the problems I observed in the language interpretation. Reasonable Apprehension of Bias [33] The Appellants made extensive argument that the behaviour of the RPD Member gave rise to a reasonable apprehension of bias. The RAD remarks that the RPD did ask a pointless, sarcastic and insensitive question of the male Appellant. On two separate occasions, the RPD sought confirmation from the male Appellant that nobody had killed him.29, 30 In my view, this question departed from the appropriate tone and demeanour for the adjudicative process.31 Whether this, alongside the harshness and pursuit of irrelevant questions that the Appellants allege, raises a reasonable apprehension of bias, it is not necessary for me to decide. I find that the inadequacy of interpretation is a determinative issue, and that it resulted in a breach of natural justice independent of any question of bias. DISPOSITION [34] I find that the breach of natural justice in this matter requires the intervention of the RAD. The appropriate remedy is to send the matter back to a differently constituted panel of the RPD for a true de novo hearing. Since the Appellants did not fully enjoy their right to be heard, I am not able to provide a final determination without hearing the oral evidence and I refer the matter back to the RPD for re-determination by a new RPD panel, with Directions. DIRECTIONS [35] The new RPD member shall: * Commence a fresh consideration of this claim without the record of previous proceedings before the RPD or the RAD; and * Ensure that Arabic to English interpretation is provided by a different interpreter, whom the Appellants confirm they can understand, and who meets the standards for interpretation prescribed by law. CONCLUSION [36] Pursuant to s. 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter back to the RPD for re-determination by a different member. [37] The appeal is granted. Christina Harrison Baird Me Christina Harrison Baird September 28, 2017 Date /ag 1 Hereinafter "the male Appellant". 2 Hereinafter "the female Appellant". 3 Section 111(1)(a) and 111(1)(b) of IRPA. 4 Section 111(1)(c) and 111(2) of IRPA; Canada (Minister of Citizenship and Immigration) v. Huruglica, 2016 FCA 93 at para. 103. 5 Appellant's Record, Volume I, pages 12-17. 6 Appellant's Record, Volume II, pages 275-306. 7 Canada (Citizenship and Immigration) v. Singh, 2016 FCA 96 (CanLII) at paras. 38 and 44 to 49. 8 Appellant's Record, Volume II, pages 339-434. 9 Chaudhry v. Canada (Minister of Citizenship and Immigration), 2006 FC 1015 (CanLII), at para. 20. 10 Section 110(3) of IRPA. 11 Balde v. Canada (Minister of Citizenship and Immigration), No. IMM-3724-14, Mosley, May 12, 2015, 2015 FC 624 at para. 32. 12 Mohammadian v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 17118 (FC), adopting R. v. Tran, 1994 CanLII 56 (SCC), and cited with approval in Mohammadian v. Canada (Minister of Citizenship and Immigration), 2001 FCA 191 (CanLII). 13 Exhibit A-1, Written Statement, Appellant's Record, Volume I, pages 12-17, paragraph 13. 14 Audio Recording of the RPD Hearing on 11 December 2015, at minute 1:33:18 and following; and Transcript, Appellant's Record, Volume II, pages 339-434, at page 367 and following (with corrections based on the RAD's audition of the recording). 15 Hearing on 11 December 2015, at minutes 38:06 and 1:10:32. 16 Ibidem, at minutes 11:08, 31:50, 39:14, 49:04, 57:58, 58:56, 1:13:10 and 1:16:30. 17 Ibidem, at minute 27:17. 18 Ibidem, at minute 40:23. 19 Olvera-Paoletti v. Canada (Citizenship and Immigration), 2008 FC 444 (CanLII), paras. 14, 15 and 23. 20 Hearing on 11 December 2015, at minute 2:14:26. 21 Hearing on 11 December 2015, at minute 58:57 and following; and Transcript, at page 356 and following. 22 Ibidem, at minute 1:00:56; and Transcript, at page 356. 23 Ibidem, at minute 2:22:26 and following; and Transcript, at page 382 and following. 24 Ibidem, at minutes 2:25:51 to 2:28:49; and Transcript, at page 383-384. 25 Mohammadian v. Canada (Minister of Citizenship and Immigration), 2001 FCA 191 (CanLII), at para. 13. 26 Chaudhry v. Canada (Minister of Citizenship and Immigration), 2006 FC 1015 (CanLII), at para. 17. 27 Chan v. Canada (Minister of Employment and Immigration), 1995 CanLII 71 (SCC), at para. 45. 28 RPD Reasons, paras. 8 and 20. 29 Hearing on 11 December 2015, at minute 2:14:35; and Transcript, at page 379. 30 Audio Recording of the RPD Hearing on 18 December 2015, at minute 1:39:11; and Transcript, Appellant's Record, Volume II, pages 339-434, at page 413. 31 Chaudhry v. Canada (Minister of Citizenship and Immigration), 2006 FC 1015 (CanLII), at para. 13. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB6-07334 MB6-07335 2 RAD.25.02 (2014.09.11) Disponible en français