VB8-00419

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 / Dossier de la SAR : VB8-00419 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX (a.k.a. XXXX XXXX) Personne(s) en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision October 9, 2018 Date de la décision Panel Richard Jackson Tribunal Counsel for the person(s) who is(are) the subject of the appeal Simon K. Yu Barrister and Solicitor Conseil(s) (de la/des) personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] These are my reasons for allowing the appeal of XXXX XXXX XXXX XXXX XXXX XXXX, a.k.a. XXXX XXXX (appellant) from a decision of the Refugee Protection Division (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 Libya. [2] The appeal is allowed. Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (Act or IRPA),1 the Refugee Appeal Division (RAD) refers the matter to the RPD for redetermination by a differently constituted panel. [3] The determinative issue in this case is whether a denial of natural justice was suffered by the appellant as a result of interpretation errors in his refugee hearing. BACKGROUND [4] The appellant is a 20 year old citizen of Libya who resided in XXXX although his family is originally from XXXX. He came to Canada on a study permit in 2014. He returned to Libya in 2015 to complete his high school exams and again in XXXX 2016 to attend the wedding of his sister. On the day of his sister's wedding he was threatened by a member of the Al-Quds militia when he expressed his support for Al-Karama. In XXXX 2016 the appellant was stopped at a checkpoint and accused of being an Al-Karama infiltrator. He was detained until released in XXXX 2016 following the payment of a ransom. He then went into hiding until he could make arrangements to return to Canada. He fears he will be persecuted on the basis of his political opinion if he should return to Libya. The RPD denied the appellant's refugee claim on January 3, 2018. APPELLANT'S ARGUMENTS [5] The appellant argues that the RPD erred in its credibility findings and that interpretation at the hearing was not "continuous, precise, competent, impartial and contemporaneous." The appellant argues that concerns about interpretation were raised by the appellant's previous counsel at the RPD hearing but were dismissed by the RPD. The appellant also argues that the RPD panel failed to put contradictions to the appellant at the hearing. NEW EVIDENCE AND ORAL HEARING [6] The appellant has submitted new evidence in this appeal pursuant to section 110(4) of the Act. The appellant asks the RAD to accept the affidavit of Mr. XXXX XXXX (Mr. XXXX), an experienced and IRB certified Arabic interpreter.2 Mr. XXXX acted as the interpreter for the appellant at his second and third hearings before the RPD,3 but not the appellant's first hearing where the appellant alleges serious errors in interpretation occurred. In his affidavit, Mr. XXXX reviewed the audio tape of the first hearing and provided an analysis of deficiencies in the interpretation. [7] I find that this evidence meets the requirements of section 110(4). It arose after the hearing and the appellant was not aware of the full scope of the interpretation issues until the recording was reviewed by another interpreter. As such, this evidence was not reasonably available to the appellant to present to the RPD prior to the RPD decision. [8] I find that the evidence with respect to the interpretation issue is relevant, and I have no reason to doubt its credibility. I therefore accept the affidavit from Mr. XXXX as new evidence. [9] Given there is no credibility issue in regard to the new evidence in this appeal there is no requirement for me to consider an oral hearing under section 110(6) of the Act. THE RPD DECISION [10] The RPD accepted the appellant's identity as a national of Libya. However, the RPD did not believe central elements of the principal appellant's story and found that the appellant's evidence failed to meet the definintion of a Convention refugee under section 96 of the Act and that the appellant did not meet the definition of a person in need of protection under section 97(1) of the Act. ANALYSIS [11] With respect to questions of fact, mixed fact and law, I have applied the standard of correctness as per Huruglica.4 When reviewing the RPD decision, I am required to independently determine whether the RPD was correct in relation to each alleged error of law, fact or mixed fact and law. I may defer to the RPD's credibility assessment of oral testimony, if I find that the RPD had a meaningful advantage in the circumstances. Reasons will be provided in my analysis if I find that the RPD had meaningful advantage. Given my findings in regard to a denial of natural justice in this case, which was never decided in front of the RPD, the issue of deference does not arise. Do the interpretation errors at the first hearing alleged by the appellant and supported by Mr. XXXX affidavit amount to a denial of natural justice? [12] In my independent analysis, after reviewing the transcript and listening to the audio tape of the appellant's RPD hearing, I find that there were significant interpretation errors which, if had they not been made, may have caused a different overall credibility finding by the RPD. [13] As noted above I have no reason to doubt the credibility of Mr. XXXX affidavit and I accept his expertise as a highly experienced interpreter for the Immigration and Refugee Board (IRB) who has experience in interpreting the Libyan Arabic dialect into English in past RPD proceedings. I also note that in his Basis of Claim form (BOC),5 the appellant had requested an interpretation in the "Arabic Libyan" dialect. [my emphasis] [14] The appellant argues that that the interpreter at his first hearing was from Iraq where a different dialect of Arabic is commonly spoken. In listening to the audio tape I note that the issue of dialect was raised by the RPD panel at the outset of the hearing.6 The interpreter advised the panel that the appellant spoke Arabic "with a Libyan accent" and that the interpreter had an Iraqi "accent" but that he had lived in Libya and understood some of the common terminology. I find that this reply from the interpreter to the panel was vague in regard to the interpreter's qualifications to interpret at this proceeding. The panel did not explore this response further and instead proceeded with the hearing. It is common sense that there is a major difference between the term "accent" and the term "dialect" and in reviewing the audio tape I am not satisfied that the interpreter understood this basic difference. There is no evidence on the record about whether the first interpreter had prior experience in interpreting before the IRB from the Libyan Arabic dialect. I note that this interpreter was replaced for the two subsequent hearings although there is no evidence on the record to indicate why this change was made. [15] In reviewing the audio tape I further note that at the beginning of the hearing there was some interpretation difficulties where the panel's instructions had to be repeated to the interpreter and the interpreter seemed unfamiliar with basic terms used by the RPD such as "internal flight alternative" which needed to be repeated and explained by the RPD panel several times. In providing advice to the claimant [appellant] at the outset of the hearing the RPD panel advised the claimant [appellant] that the interpretation needed to be "not perfect but adequate."7 It is unclear why the RPD panel would establish what appears to be an incorrect standard as part of his initial instructions to the appellant at the beginning of the hearing. I find it would have been better if the RPD panel had more clearly explained the role of the interpreter and the obligation of the appellant to stop the proceeding and alert the RPD panel and his counsel if he either did not understand the interpreter's statements or had reason to believe that the interpretation was in some way incorrect. This instruction was not set out at the outset of the proceeding as is customary and only partially accomplished later on in the proceeding when the appellant's counsel interrupted the proceedings because of interpretation issues as set out below. I agree with the appellant's current counsel that "adequacy" is not the standard used by the Federal Court in regard to interpretation but rather whether the interpretation is "continuous, precise, competent, impartial and contemporaneous".8 [16] The appellant's former counsel raised interpretation difficulties brought to his attention by an observer in the room (the appellant's sister who noted discrepancies).9 A lengthy discussion followed where the RPD panel asked that the appellant be precise in regard to what errors he thought had been made. The appellant was unable to offer clear examples in that moment. Following a short break the appellant's counsel stated that the hearing could proceed. However, after this intervention a serious interpretation issue arose in regard to a question from the RPD panel about whether the appellant's tribe had a political affiliation. This issue is addressed below. I note that the appellant's interpretation concerns at the first hearing were not addressed in the RPD reasons for decision. I find that the RPD erred in not taking the appellant's concerns about interpretation sufficiently seriously during the first hearing when they were brought to his attention by counsel and when confusions arose later in the ensuing questioning. [17] The appellant argues that at the first hearing there were difficulties of understanding between the interpreter and the appellant and that there were some statements in the proceeding that were not interpreted at all. The appellant notes the following significant interpretation errors which are supported in the affidavit of Mr. XXXX: (i) The appellant used the term "Fajr Libya" which was interpreted as "early in the morning" by the interpreter rather than by its normal English translation of "Libyan Dawn".10 This is significant because "Libya Dawn' is the name of a political/military organization in Libya to which the [appellant] alleges his tribe is affiliated or associated with in Libya. (ii) The appellant stated "people defended me" (when he was confronted at the wedding) which was interpreted as "anyone touched me will face the consequences."11 I find the differences in interpretation in this instance to be significant because it changes the meaning of the words used by the appellant to words that imply a much higher level of a threat against the appellant's attackers than may have been intended by the appellant. (iii) In regard to the position held by Al Shawaikir in Al-Quds, (the militia that kidnapped the appellant), the appellant used the phrase "Taht Al Aamer" which means "under the leader." However, the interpretation provided was "second in command."12 In the RPD reasons for decision it is stated that "whether or not Shawaikir has a leading role in the Misrata militias is an important detail." (my emphasis)13 I find this interpretation error to be significant and critical given the importance the RPD panel gave to its finding of inconsistencies in the appellant's account of the circumstances in regard to his kidnapping and release.14 [18] In his affidavit Mr. XXXX further states that "there were many conversations between Mr. XXXX (the appellant) and Mr. XXXX (the interpreter at the first hearing) that were not translated back to English." This evidence further establishes that the interpretation provided for the appellant at his first RPD hearing was flawed. [19] RPD Rule 19 of the Refugee Protection Division Rules (RPD Rules)15 provides that a refugee claimant may request that the Division 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,16 and this right has been held to be generally applicable to a proceeding before the RPD.17 [20] 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.18 What is important is whether the appellant understood the interpretation and was able to adequately express himself through the interpreter. [21] Complaints about the quality of interpretation must be raised at the earliest opportunity; failure to do so results in a waiver of the right to object to the interpretation on judicial review, and by analogy also on appeal to the RAD.19 In this case the appellant and his counsel raised concerns about interpretation early in the first hearing but the RPD determined to press onward. In this case the appellant spoke only a little English and his counsel did not speak Arabic. Therefore, the appellant and his counsel could not reasonably be expected to have been aware of the precise interpretation issues until subsequent to the rejection of his refugee claim when they could examine an audio tape and/or transcript with the assistance of a different interpreter. In these circumstances, it was incumbent upon the panel to be highly alert to the possibility of interpretation issues. I find that the appellant had not waived his right to object to the interpretation on appeal. [22] The RPD made many negative credibility findings in respect to the appellant's refugee claim. The interpretation errors set out above do not affect each finding. However, the RPD ultimately made a cumulative credibility finding that was significantly based on interpretation errors in regard to the appellant's tribal affiliation, abduction and release which is the central element of the refugee claim. It is impossible for the RAD to determine conclusively whether the RPD would have come to a different decision about the appellant's overall credibility as a witness had the appellant's words been correctly interpreted and translated. However, it is clear that the appellant's ability to tell his story to the RPD was seriously impaired by the quality of interpretation, and I find that in this case there is sufficient evidence to establish that there has been a denial of natural justice. [23] The appellant attacks other RPD findings. However, my finding that there has been a denial of natural justice is sufficient to dispose of this appeal. In my opinion the interpretation in the appellant's RPD hearing did not meet the standard established by case law to ensure that procedural fairness was accorded to the appellant in this case. [24] I am not in a position to make an overall credibility determination in this case nor am I able to consider substituting a decision of the RAD for the decision of the RPD. Consequently, the refugee claim must be re-heard by the RPD. CONCLUSION [25] Pursuant to section 111(1)(c) of the Act, the RAD refers the matter to the RPD for redetermination by a differently constituted panel. The appeal is allowed. (signed) "Richard Jackson" Richard Jackson October 9, 2018 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 Exhibit P-2, Appellant's Record (AR), p. 79-82. 3 Hearings held on September 21, 2017 and November 14, 2017. 4 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93. 5 Refugee Protection Division (RPD) Record, p. 27. 6 Audio of first RPD hearing, at 2:30. 7 Audio of first RPD hearing, at 17:20. 8 Elmaskut v. Canada (Minister of Citizenship and Immigration), 2005 FC 414. 9 Audio of RPD hearing, at 32:40. 10 Audio of RPD hearing, at 43:49. 11 Audio of RPD hearing, at 1:37:19. 12 Audio of RPD hearing, at 1:39:42. 13 Exhibit RPD-1, RPD Record, Member's Decision, para. 10. 14 Exhibit RPD-1, RPD Record, Member's Decision. 15 Refugee Protection Division Rules, SOR/2012-256. 16 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. 17 Mohammadian v Canada (Minister of Citizenship and Immigration), 2001 FCA 191. 18 Sohal v. Canada (Public Safety and Emergency Preparedness), 2011 FC 1175. 19 Mohammadian v Canada (Minister of Citizenship and Immigration), 2001 FCA 191. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB8-00419