TB5-09178

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 : TB5-09178 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision January 27, 2016 Date de la décision Panel Edward Bosveld Tribunal Counsel for the person(s) who is(are)the subject of the appeal Teklemichael A. Sahlemariam Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX XXXX (the Appellant), a citizen of Ethiopia, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted new evidence in support of his appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and either find him to be a Convention refugee or return the matter to the RPD for redetermination. DETERMINATION [2] This appeal is allowed. Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the Refugee Protection Division for redetermination by a differently constituted panel. Background [3] The Appellant alleged before the RPD that he is a member of the XXXX XXXXethnic minority; he is also an accomplished XXXX XXXX XXXX XXXX XXXX XXXX XXXX. He alleged that his family's farmland was expropriated by the Ethiopian government without compensation, and that he, his parents, and his brother were arrested and mistreated. He left Ethiopia to XXXX XXXX XXXX XXXX XXXX; he remained here and made a refugee claim. Upon return, he fears harm as an opponent of the government and because of his ethnicity. [4] The Appellant's application for refugee protection was heard on August 11, 2015. By a decision of August 19, 2015, the RPD rejected the claim. The panel cited numerous inconsistencies within the Appellant's evidence, noted his lack of corroborating documents, and concluded that he was generally lacking in credibility. [5] The Appellant asks the RAD to accept numerous documents as new evidence in support of his appeal. He argues on appeal that he was poorly represented by counsel before the RPD, that the interpretation in his RPD hearing was severely flawed, and that the RPD erred in finding that he lacked credibility. ANALYSIS Admissibility of Evidence Submitted on Appeal [6] Section 110(4) of the IRPA provides that the Appellant may present only evidence that arose after the rejection of his claim or that was not reasonably available, or that he could not reasonably have been expected1 in the circumstances to have presented, at the time of the rejection. [7] It is for the Appellant to make full and detailed submissions in his Memorandum about how any proposed new evidence meets the requirements of Section 110(4) and how that evidence relates to the Appellant.2 [8] It is not necessary for the RAD to consider all of the Appellant's proposed new evidence. The issue of interpretation is determinative here; if the Appellant was denied natural justice and procedural fairness through inadequate interpretation, then this matter must be returned to the RPD for reconsideration. [9] The Appellant asks the RAD to accept the affidavit of XXXX XXXX XXXX, an experienced XXXX XXXX XXXX XXXX who reviewed the audio recording of the Appellant's RPD hearing. Mr. XXXX also produced a partial transcript of the proceeding, as well as an analysis of deficiencies in the interpretation.3 [10] The RAD finds that this evidence meets the requirements of Section 110(4). It arose after the hearing - the Appellant was not aware of the interpretation issues until the recording was reviewed by another interpreter. As such, this evidence was not reasonably available to him to present to the RPD. [11] The RAD also finds that the evidence with respect to the interpretation issue is relevant and material, and has no reason to doubt its credibility. [12] The RAD accepts as new evidence the affidavit, and attached documents, from Mr. XXXX. [13] It is not necessary for the RAD to consider the Appellant's other proposed new evidence, as this matter must be returned to the RPD on the basis of interpretation errors. The Appellant is not precluded from submitting such evidence to the RPD, in accordance with that Division's Rules. What is the Role of the RAD? [14] While the IRPA sets out grounds for appeal as well as possible remedies, it does not specify the standard by which the RAD is to review the decision of the lower tribunal. [15] The Appellant submits that questions of natural justice and procedural fairness are to be determined on a standard of correctness, and argues that the RAD is to conduct a full appeal on the merits of his claim. In his submission, the RAD has a special obligation to intervene when the need arises. [16] The determinative issue here is the denial of natural justice suffered by the Appellant as a result of interpretation errors in his refugee hearing. A denial of natural justice is either beyond the scope of a standard of review4 or it is to be reviewed on a standard of correctness.5 [17] As this appeal will be decided on the basis of the alleged interpretation errors, it is not necessary for the RAD to consider the appropriate standard to be applied to the RPD's credibility findings. Interpretation in the RPD Hearing [18] Section 19 of the Refugee Protection Division Rules provides that a refugee claimant may request the Division to provide an interpreter for a language or dialect specified by the claimant. The right to an interpreter in a proceeding in another language is enshrined in Section 14 of the Canadian Charter of Rights and Freedoms (the Charter), and this right has been held to be generally applicable to a proceeding before the RPD.6 [19] Interpretation should be continuous, precise, impartial, competent and contemporaneous. Although the standard of interpretation is high, it need not be so high as to be perfect. If a breach of this standard is shown, it is not necessary to show actual prejudice.7 What is important is whether the Appellant understood the interpretation and was able to adequately express himself through the interpreter.8 To put it another way, persons who do not speak and understand one of the official languages must be able to tell their story, and the interpretation must be of such quality that they are not impeached in their ability to make their case.9 [20] Complaints about the quality of interpretation must be raised at the earliest opportunity;10 failure to do so results in a waiver of the right to object to the interpretation on judicial review,11 and by analogy also on appeal to the RAD. Here, the Appellant does not speak English well, while his counsel before the RPD apparently did not speak Amharic, and therefore neither could reasonably be expected to have been aware of the interpretation issues, until subsequent to the rejection of his refugee claim. The RAD therefore finds that he has not waived his right to object to the interpretation on appeal. [21] Was the Appellant able to adequately express himself - to tell his story to the RPD? [22] Not every interpretation error identified by the Appellant's new evidence constitutes a breach of natural justice. However, there are enough serious errors to cause the RAD to doubt the fairness of the Appellant's RPD hearing. Some examples follow. [23] The RPD member asked the Appellant to pause between sentences to allow for interpretation. The interpreter then instructed the Appellant to "tell your story briefly," which is considerably different and could have a significant impact on the Appellant's testimony.12 [24] The Appellant responded to one question with, "Then I asked them why, when I went to prison." This was interpreted as, "And when they question at the jail." The Appellant said, "How could you take a land from a person because he is a peasant and because you assume he does not know; is he not a citizen?" The interpreter changed this to, "This is very unfair, you claim that these are farmers but you are expropriating their lands."13 [25] It appears that the interpreter added her own words to those of the Appellant. He testified that "after that they forcefully detained them... and took it away." The interpreter said, "And then they use force. They put my mother and my eldest brother in jail." When the RPD member said "you further stated my parents were detained," the interpreter changed this to "you said my parents protested... you said my parents were detained."14 [26] When the Appellant testified "I meant my father was not alive at that time, I meant my mother," the interpreter said, "Well at the time my father was not alive, but it was my mother and my eldest brother."15 [27] There appear to be instances where the interpretation has little in common with the testimony. The RPD member asked the Appellant, "So when did you go to that office? When were you called to the office?" and the interpreter changed this to, "When were you called for the competition?" The member stated, "And at this time the community's question is self-administration... XXXX is not allowed to administer itself." The interpreter changed this to, "As an example nations and nationalities were allowed to administer themselves but only the people in XXXX will not allow administering themselves, they will never allow them."16 [28] The RPD's general credibility finding was based on apparen t inconsistencies within the Appellant's testimony. In light of the serious interpretation errors discussed above, the RAD finds that the Appellant was, without the knowledge of the RPD, denied natural justice in his refugee hearing. The Appellant was not able to adequately tell his story to the RPD, and must be given another opportunity to do so. Counsel Incompetence [29] This appeal will be determined on the basis of inadequate interpretation. However, the RAD also notes the Appellant's argument that he received "ineffective assistance" from his former counsel. He claims that former counsel did not give him enough time to prepare and gave him poor advice with respect to documents. [30] It is easy to allege counsel incompetence, but such allegations must not be made lightly. In a recent decision,17 the Federal Court set out a three-part test for establishing that counsel incompetence resulted in a violation of procedural fairness. The Appellant must show that the alleged actions, or lack therefore, constituted incompetence. He must show that there was a miscarriage of justice in the sense that, but for the alleged misconduct, there is a reasonable probability that the outcome of his refugee proceeding would have been different. He must also give the counsel in question notice of these allegations and an opportunity to respond. [31] There is no indication that the Appellant here has given former counsel notice of the serious allegations against him or an opportunity to respond. It is therefore inappropriate for the Appellant to make such allegations. CONCLUSION [32] Pursuant to Section 111(1)(c) of the IRPA, the RAD refers the matter to the Refugee Protection Division for redetermination by a differently constituted panel, ensuring that interpretation is provided by a qualified and competent interpreter. This appeal is allowed. (signed) "Edward Bosveld" Edward Bosveld Janary 27, 2016 Date 1 In the French version of the IRPA, this phrase is instead the equivalent of "normally have been expected;" see Singh, Parminder v. M.C.I. (F.C., no. IMM-6711-13), Gagné, October 28, 2014, 2014 FC 1022, para 51. 2 Refugee Appeal Division Rules, Section 3(3)(g)(iii). 3 Appellant's Record, Pages 11-47. 4 C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 SCR 539, 2003 SCC 29. 5 Sketchley v. Canada (Attorney General)(F.C.A.), 2005 FCA 404, [2006] 3 F.C.R. 392. 6 Mohammadian, Soliman v. M.C.I. (F.C.T.D., no. IMM-6500-98), Pelletier, March 10, 2000. Reported: Mohammadian v. Canada (Minister of Citizenship and Immigration), [2000] 3 F.C. 371 (T.D.); (2000), 4 Imm. L.R. (3d) 131 (F.C.T.D.). Reported: Mohammadian v. Canada (Minister of Citizenship and Immigration), [2001] 4 F.C. 85 (C.A.) 7 Sohal, Manwinder Singh v. M.P.S.E.P. (F.C., no. IMM-1078-11), Harrington, October 18, 2011, 2011 FC 1175, para. 18, citing R. v. Tran, [1994] 2 SCR 951. 8 Lawal, Kayode Fasasi v. M.C.I. (F.C., no. IMM-3534-07), de Montigny, July 10, 2008; 2008 FC 861, at para 26. 9 Dhaliwal, Hardial Singh v. M.C.I. (F.C., no. IMM-978-11), de Montigny, September 26, 2011, 2011 FC 1097, para. 18. 10 Mohammadian, para. 27. 11 Bal, Tarlok Singh v. M.C.I (F.C., no. IMM-1472-08), de Montigny, October 17, 2008, 2008 FC 1178, at para 31. 12 Appellant's Record, Page 44. 13 Appellant's Record, Page 43. 14 Appellant's Record, Page 45. 15 Appellant's Record, Page 46. 16 Appellant's Record, Page 47. 17 Yang, Huo Jun v. M.C.I. (F.C., no. IMM-3666-14), Annis, October 22, 2015, 2015 FC 1189, para. 16. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB5-09178