Docket No.: IMM-5300-01
Neutral Citation: 2003 FCT 167
Ottawa, Ontario, this 14th day of February, 2003
PRESENT: THE HONOURABLE JOHANNE GAUTHIER
BETWEEN:
ERVIN ROLAND KOVACS and
SZIMONETTA KOVACS
Applicants
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
1. The applicants, Ervin Roland Kovacs and Szimonetta Kovacs, seek judicial review of an exclusion order made by senior immigration officer dated November 2, 2001. They request that the exclusion order be set aside and their eligibility to make a refugee claim referred to a different officer.
2. Both applicants are citizens of Hungary. They arrived in Canada on November 2, 2001, accompanied by their son, a Canadian citizen, born in Toronto in June 2001. Mr. Kovacs described their intention at paragraph 16 of his affidavit as follows:
Our intention when we arrived at Pearson Airport was to enter Canada to deal with certain matters relating to our son who was born in Toronto and consult with counsel regarding potential procedure to obtain permanent status in Canada, but we knew that we had to make refugee claims and were never given the opportunity to adequately explain our situation: ...because were not provided any interpreter.
The applicants described their language skill in English as basic and Elizabeth Godri, the interpreter, who assisted Mr. Kovacs in the preparation of his affidavit described his skills as poor on a scale of "fluent, well or poor".
3. While the applicants remained at the Immigration section at the airport, their uncle, Julius Flasko, a Canadian citizen, was waiting for them. According to Mr. Flasko's affidavit, on two separate occasions he spoke with the immigration officer to tell him that the applicants required an interpreter to understand what was taking place and that they wanted to make refugee claims.
4. In his affidavit, Mr. Kovacs reiterates that he and his uncle requested an interpreter from the immigration officer but none was provided. After the exclusion order was issued (about 25 minutes after the first conversation with Mr. Flasko) Mr. Flasko told the immigration officer again that the applicants wanted to make refugee claim and was told that "it was too late to do so as they were going home that night." In effect by that time because an exclusion order had been issued, the applicants were no longer eligible to make refugee claims pursuant to subsection 44(1) of the Immigration Act R.S.C. 1985 c. I-2, as modified. The exclusion order was based on paragraph 19(1)(i) and the fact that the applicants themselves had not informed the examining officer of any intention to make a refugee claim.
5. In their memorandum, the applicants raise various issues, but at the hearing it was agreed between counsel that the Court should focus on one issue only that is:
Is the decision of the senior immigration officer void because of the failure to provide an interpreter to the applicants during their interview at their port of entry.
6. The respondent submitted that procedural fairness or natural justice only requires access to interpretation for those not conversant in Canada's official languages. The respondent then went on to argue that contrary to the evidence put forth by the applicants, as a matter of fact, the notes of the immigration officer who interviewed the applicants suggest that both applicants were fluent in English. Also, the notes do not mention any request for an interpreter or to make refugee claims.
7. The respondent chose to challenge the applicants' version of events by simply filing an affidavit of Darlene Phillips, a legal assistant employed by the Department of Justice, who attaches the notes of one of the immigration officers who interviewed the applicants upon their arrival stating that she is informed by Martin Henderson, counsel for the respondent, and verily believes that he requested the immigration officer to transmit the visa officer's notes to him and that these are the notes that were transmitted to Mr. Henderson.
8. Although the immigration officer's notes could be admissible to prove his state of mind at the time of the interview (for example, that the immigration officer did not believe that the applicants needed an interpreter) they are not admissible as proof of their content and cannot be used to establish controversial facts. In Chou v. Canada (M.C.I.) [2000] F.C.J. No. 314, QL, affirmed on this very point by the Court of Appeal at [2001] F.C.J. No. 1524, QL, this Court held that a visa officer's notes should only be given weight when they are accompanied by an affidavit of the officer who made them. This confirmed a line of jurisprudence starting with the Federal Court of Appeal decision in Wang v. Minister of Employment and Immigration [1991] 1 F.C. 165. As Reed J. said at paragraph 13 of the trial decision in Chou: "In the absence of a visa officer's affidavit attesting to the truth of what he or she recorded as having been said at the interview, the notes have no status as evidence of such."
9. In Tajgardoon v. Canada (M.C.I.) [2001], 1 F.C. 591 (F.C.T.D.), Justice Pelletier (as he then was) also held that in order to make the CAIPS notes evidence of the facts to which they refer, they must be adopted as the evidence of the visa officer in an affidavit of the said officer. In that decision, Justice Pelletier was following the principal approach to hearsay evidence enunciated in the trilogy of decisions of the Supreme Court of Canada dealing with hearsay (R.v. Khan [1990] 2 S.C.R. 531, R. v. Smith [1992], 2 S.C.R. 915 and R. v. B.(K.G.) [1993] 1 S.C.R. 740) and held that the visa officer's notes did not satisfy the requirement of necessity and reliability.
10. I see no reason not to apply the same reasoning here.
11. In the circumstances, the Court must decide the applicants' motion solely on the basis of the evidence before it. Given that none of the affiants were cross-examined, this means that there is uncontradicted evidence, (ie. the affidavits of Ervin Kovacs, Julius Flasko, and Elizabeth Godri), that the applicants did need the help of an interpreter and requested the presence of one before the exclusion order was made and that they intended to claim refugee status.
12. The failure to provide the requested interpreter constitutes a breach of procedural fairness that voids the decision of the senior immigration officer unless the outcome of the decision was inevitable (see Yassine v. Canada (M.E.I.) [1994] F.C.J. No. 949 (C.A.), QL). I have no basis to conclude that the applicants' case would be hopeless had they obtained the help of an interpreter prior to the issuance of the removal order.
13. In view of the foregoing, the motion for judicial review is granted. The exclusion order is set aside and the matter referred back to a different immigration officer for determination of the eligibility of the applicants to make refugee claims in accordance with the law.
14. No serious question has been asked to be certified.
ORDER
THIS COURT ORDERS that:
1. The motion for judicial review is granted.
2. The exclusion order is set aside and the matter referred back to a different immigration officer for determination of the eligibility of the applicants to make refugee claims in accordance with the law.
"Johanne Gauthier"
Judge
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-5300-01
STYLE OF CAUSE: Ervin Roland Kovacs et al. v. MCI
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: February 4, 2003
REASONS FOR ORDER AND ORDER: GAUTHIER J.
DATED: February 14, 2003
APPEARANCES:
Daniel M. Fine FOR APPLICANT
Martin Anderson FOR RESPONDENT
SOLICITORS OF RECORD:
Daniel M. Fine FOR APPLICANT
4850 Yonge St., Suite 1902
Toronto, Ontario, M2N 6K1
Morris Rosenberg FOR RESPONDENT
Deputy Attorney General of Canada
Department of Justice
2 First Canadian Place
Suite 2400, Box 36
Exchange Tower
Toronto, Ontario M5X 1K6