VB7-02542

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 : VB7-02542 Private Proceeding / Huis clos Reasons and decision ? Motifs et décisionJ Person(s) who is(are) XXXX XXXX XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered at Vancouver, BC Appel instruit à Date of decision December 20, 2017 Date de la décision Panel Tribunal Counsel for the person(s) who is(are) Amina Muhammad Conseil(s) du (de la/des) the subject of the appeal personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] These are my reasons for allowing the appeal of XXXX XXXX XXXX XXXX of Egypt from a decision of the Refugee Protection Division (the "RPD") to reject his claim for refugee protection. The appellant claims to face persecution, a danger of torture, a risk to life or a risk of cruel and unusual treatment if he returns to Egypt. [2] Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (the "IRPA"),1 the Refugee Appeal Division (the "RAD") refers the matter to the RPD for re-determination by a differently constituted panel. [3] The determinative issue in this case is whether there was a breach of procedural fairness because of poor interpretation at the RPD hearing. BACKGROUND [4] When the appellant was younger his father had been taken away by Egyptian authorities because of his alleged ties with the Muslim Brotherhood. While attending law school the appellant, along with his family in Egypt, were arrested by a group of armed men and held for approximately a month and interrogated. Following this event he went to Dubai to work but returned to Egypt frequently to arrange visas and to visit his family. He returned again in 2009 to marry and then returned to Dubai. Sometime in 2012 the appellant met someone who offered to secure him a visa to Canada to work. The appellant returned his wife and child to Egypt and came to Canada on a work visa in 2013. He had numerous difficulties in maintaining steady work in Canada. He travelled to Egypt twice in 2015 returning to Canada on each occasion. He returned to Egypt in December 2015 to take over his father's business. [5] In February 2016 the appellant and his father were abducted by men in civilian clothes and held for five weeks and interrogated. The appellant was released by his captors and returned to Canada where he made a refugee claim on July 12, 2016. APPELLANT'S ARGUMENTS [6] The appellant argues that there was a breach of the appellant's right to procedural fairness at the hearing due to unsatisfactory interpretation. The appellant also attacks the credibility findings of the RPD. NEW EVIDENCE AND ORAL HEARING [7] According to the appellant's written statement he is not seeking to introduce new evidence. However, he has filed an affidavit from an interpreter post the RPD decision which asserts that the quality of interpretation in his refugee hearing was poor and much of the appellant's appeal relies upon that allegation. Although the appellant has not complied with the Refugee Appeal Division Rules (the "RAD Rules")2 which require that he provide a written statement indicating whether he is relying on any evidence referred to in section 110(4) of IRPA, and a memorandum explaining how that evidence meets the requirements of section 110(4), I will nevertheless consider the proposed new evidence. I find that the new evidence meets the requirements of section 110(4) because it was not reasonably available to the appellant prior to the rejection of his refugee claim. I will also apply a revised Raza3 approach to the new evidence and I find the interpreter's affidavit meets the modified Raza factors of credibility, relevance, and materiality. [8] As noted above the interpreter's affidavit presented by the appellant to the RAD meets the test in section 110(4). The affidavit4 sets out that he believes there are "discrepancies I (he) noticed in the CD that there was serious miscommunication between the claimant and the hearing panel as a result of the interpreter's interpretation of the claimant's testimony." While I do not find the interpreter's opinion about the impact of the errors he found in the compact disc (CD) to be relevant, I do find that that the errors noted in the transcript of the RPD hearing to be highly relevant and material to the appeal and I have no reason to doubt the credibility of the interpreter making the affidavit. As such, the affidavit is admissible as new evidence in this appeal, with the exception of those portions that contain the affiant's impressions or opinion. [9] The appellant has not sought an oral hearing and none is granted in this appeal. RAD ANALYSIS The quality of interpretation before the RPD [10] RPD Rule 19 of the Refugee Protection Division Rules (the "RPD Rules")5 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,6 and this right has been held to be generally applicable to a proceeding before the RPD.7 [11] 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.8 What is important is whether the appellant understood the interpretation and was able to adequately express himself through the interpreter.9 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.10 [12] Complaints about the quality of interpretation must be raised at the earliest opportunity;11 failure to do so results in a waiver of the right to object to the interpretation on judicial review,12 and by analogy also on appeal to the RAD. Concerns with respect to the interpretation [13] In this case the appellant speaks little English and therefore neither he nor his counsel could reasonably be expected to have been aware of the interpretation issues until subsequent to the rejection of his refugee claim. The appellant went to a certified interpreter to obtain a transcript of the hearing. In his affidavit the interpreter noted some fourteen errors in the transcript that he attributes to interpretation problems caused by the interpreter at the hearing. These errors are set out in the interpreter's affidavit and I will not recite them here.13 The appellant raised his concerns about interpretation in a letter to the RPD following the rejection of his claim and when he learned about them from his interpreter.14 The RPD advised the appellant that the RPD no longer had jurisdiction which gave rise to the appeal to the RAD. I find that the appellant has not waived his right to object to the interpretation on appeal. [14] I also find, based on a balance of probabilities, and considering the affidavits from the appellant and the interpreter who discovered the high number of significant interpretation errors, that the interpretation at the hearing did not reach the standard of continuous, precise, impartial, competent and contemporaneous qualities as set out in the above-noted case-law. [15] In this case, the RPD made many negative credibility findings in respect to the appellants' refugee claim. The appellant does not challenge every finding on appeal, and the interpretation errors noted above do not affect each finding. However, the RPD ultimately made a cumulative credibility finding - based on its many concerns, it found that there was "not sufficient reliable or credible evidence to establish that the claimant [appellant] would face either a serious possibility of persecution, nor would he more likely than not face a risk to life or a risk of cruel and unusual punishment, or a danger of torture if removed to Egypt."15 [16] It is impossible for the RAD to determine whether the RPD would have come to a different conclusion had the appellant's words been correctly translated. However, it is clear that the appellant's ability to tell his story to the RPD was impeached by the quality of interpretation, and the RAD finds that this resulted in a denial of natural justice. CONCLUSION [17] This appeal is allowed. Pursuant to section 111(1)(c) of IRPA, the RAD refers the matter to the RPD for re-determination by a differently-constituted panel. I also recommend that the RPD assign a different interpreter. (signed) "Richard Jackson" December 20, 2017 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Refugee Appeal Division Rules, SOR/2012-257. 3 Raza v. Canada (Minister of Citizenship and Immigration), 2007 FCA 385. 4 Appellant's Record, p. 2-3, para. 9. 5 Refugee Protection Division Rules, SOR/2012-256. 6 Canadian Charter of Rights and Freedoms, Part 1 of the Constitution Act, 1982 being schedule B of the Canada Act, 1982 (U.K.), 1982, c.11. 7 Mohammadian v. Canada (Minister of Citizenship and Immigration), 2001 FCA 191. 8 Sohal v. Canada (Public Safety and Emergency Preparedness), 2011 FC 1097, para. 18, citing R v Tran, [1994] 2 SCR 951. 9 Lawal v. Canada (Citizenship and Immigration), 2008 FC 861, at para 26. 10 Sohal v. Canada (Public Safety and Emergency Preparedness), 2011 FC 1097, at para. 18. 11 Mohammadian v. Canada (Minister of Citizenship and Immigration), 2001 FCA 191, at para. 27. 12 Bal v. Canada (Citizenship and Immigration), 2008 FC 1178, at para 31. 13 Appellant's Record, p. 2-7. 14 See Appellant's Record. 15 Refugee Protection Division Decision, p. 10, para. 25. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : RAD File No. / N° de dossier de la SAR : VB7-02542 RAD File No. / N° de dossier de la SAR : VB7-02542