Federal Court Decisions

Date: 20050210

Docket: IMM-1830-04

Citation: 2005 FC 226

Toronto, Ontario, February 10^th, 2005

Present:           The Honourable Mr. Justice Campbell                                

BETWEEN:

                                                KOUROSH KHOSRAVI-TABRIZI

                                                                                                                                            Applicant

                                                                           and

                           THE MINISTER OF CITIZENSHIP AND IMMIGRATION

                                                                                                                                        Respondent

                                            REASONS FOR ORDER AND ORDER

[1]                In the present case, after two hours of evidence from the Applicant through a translator in his refugee protection hearing, the Refugee Protection Division ("RPD") reached the conclusion that the translation to that point was unreliable. As a result, the translator was then changed.

[2]                In its decision, the RPD, nevertheless, relies upon the unreliable translation to make a finding on the Applicant's apparently conflicting evidence; the finding is that the conflict "undermines the Applicant's credibility" (Tribunal Decision, p. 8). The Applicant in his Affidavit filed in the present Application objects, and the argument is made by Counsel for the Applicant that the credibility finding is based on a misunderstanding due to the unreliable translation.

[3]                It is obvious that, from the moment that the translation was known to be unreliable, a duty arose to rectify the problem exposed so as to be sure that the results of the hearing would be fair. In my opinion, simply replacing the translator, but continuing to rely on the unreliable translation, does not meet this duty. I place no onus on the Applicant in the present case; in my opinion, total responsibility to deal with the translation problem was on the RPD. I find that this responsibility was not met.

[4]                As a result, I find that the RPD's decision was rendered in breach of natural justice, and therefore, was made in reviewable error.    

                                                                       ORDER

Accordingly, I set the RPD's decision aside and refer the matter back to a differently constituted panel.

"Douglas R. Campbell"

                                                                                                                                                   J.F.C.                               

FEDERAL COURT

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                           IMM-1830-04

STYLE OF CAUSE:               KOUROSH KHOSRAVI-TABRIZI

Applicant

and

THE MINISTER OF CITIZENSHIP AND IMMIGRATION

Respondent

DATE OF HEARING:                      FEBRUARY 10, 2005

PLACE OF HEARING:                    TORONTO, ONTARIO

REASONS FOR ORDER

AND ORDER BY:                             CAMPBELL J.

DATED:                                              FEBRUARY 10, 2005

APPEARANCES BY:                      

Helen Turner                                         For the Applicant

Mielka Visnic                                        For the Respondent

SOLICITORS OF RECORD:                                                                                                                                 

Helen Turner

Toronto, Ontario                                   For the Applicant

John H. Sims, Q.C.                                                      

Toronto, Ontario                                   For the Respondent