Date: 20040108
Docket: IMM-6219-02
Citation: 2004 FC 15
BETWEEN:
SAMPANTHAR THAMBIAH and
NAGESWARY SAMPANTHAR
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LEMIEUX J.:
INTRODUCTION AND BACKGROUND
[1] Sampanthar Thambiah and Nageswary Sampanthar are citizens of Sri Lanka, Tamils, a married couple from Jafna and are aged 65 and 60 respectively. The Refugee Protection Division of the Immigration and Refugee Board (the tribunal), by a decision dated October 14, 2002 rejected their claims finding Mr. Thambiah was not a credible or trustworthy witness because of a number of significant discrepancies in his testimony.
[2] Counsel for the applicants raised four issues in his challenge to the tribunal's decision:
(1) The tribunal misconstrued the record in making its credibility findings;
(2) The tribunal's decision was reached in breach of the principle of natural justice related to the interpretation provided at the hearing;
(3) The tribunal erred by failing to assess, based on the evidence before it, whether the applicants were at objective risk; and
(4) The tribunal did not determine Nageswary Sampanthar's claim.
[3] I will deal with the natural justice issue first. The respondent's position is that if there were interpretation errors, they were waived by the applicants.
[4] The applicants' arguments are to be measured by the standard set out in Mohammadian v. Canada (Minister of Citizenship and Immigration), 2001 FCA 191, [2001] 4 F.C. 85.
[5] In that case, based on the principles enunciated by the Supreme Court of Canada in R. v. Tran, [1994] 2 S.C.R. 951, Justice Stone held that the interpretation provided to applicants before the Refugee Board had to be continuous, precise, competent, impartial and contemporaneous and that it was unnecessary for the applicants to show they have suffered actual prejudice as a result of a breach of the standard of interpretation before the Court can interfere with the tribunal's decision. The Court also held where it was reasonable to expect an applicant to do so, such as when an applicant has difficulty understanding the interpreter, an applicant must object to the quality of interpretation before the tribunal as a condition of being able to raise the quality of interpretation as a ground of judicial review.
[6] In Tran, supra, Chief Justice Lamer, on behalf of the Court, explained what lay behind the standards of interpretation the Court had retained.
(1) Continuous
[7] At paragraph 56 of his reasons, the Chief Justice stated in considering what constituted adequate interpretation, courts and commentators have treated continuity as a necessary requirement. "As a result, breaks in interpretation and/or summaries of the proceedings have usually not been viewed in a favourable light". At paragraph 58, he found that "breaks and interruptions in interpretation are not to be encouraged or allowed".
(2) Precision
[8] Chief Justice Lamer stated "the need for precision in interpretation is self evident". He quoted the following from Graham Steele's article entitled "Court Interpreters in Canadian Criminal Law" (1992), 34 Crim. L.Q. 218.
... the interpretation must be, as close as can be, word-for-word and idea-for idea; the interpreter must not "clean up" the evidence by giving it a form, a grammar or syntax that it does not have; the interpreter should make no commentary on the evidence; and the interpretation should be given only in the first person, e.g. "I went to school" instead of "he says he went to school".
[9] Chief Justice Lamer went on to say at paragraph 59: "this necessity for precision is an additional reason why summaries are most unlikely to meet the general standard of interpretation ... ". He quoted an American case holding that summaries provided to the defendant by the prosecutor's interpreter were inadequate because "however astute [the interpreter's] summaries may have been, they could not do service as the means by which [the accused] could understand the precise nature of the testimony against him during that period of the trial's progress when the state chose to bring it forth."
[10] On the point of precision, Chief Justice Lamer cautioned at paragraph 60 that it was important to keep in mind that interpretation "was an inherently human endeavour which often takes place in less than ideal circumstances." He stated "it would not be realistic or sensible to require even a constitutionally guaranteed standard of interpretation to be one of perfection." He again quoted Steele as follows:
Even the best interpretation is not "perfect", in that the interpreter can never convey the evidence with a sense and nuance identical to the original speech. For that reason, the courts have cautioned that interpreted evidence should not be examined microscopically for inconsistencies. The benefit of the doubt should be given to the witness.
[11] Stressing the distinction between interpretation and translation, Chief Justice Lamer stated:
In light of the fact that interpretation involves a process of mediation between two people which must occur on the spot with little opportunity for reflection, it follows that the standard of interpretation will tend to be lower than it might be for translation, where the source is a written text, where reaction time is usually greater and where conceptual differences which sometimes exist between languages can more fully be accommodated and accounted for.
3. Impartiality
[12] The Chief Justice ruled that it stood to reason interpretation, particularly in a criminal context, should be objective and unbiased. This would exclude a party litigant to interpret and also a relative or friend of a party, the judge, nor a person closely connected to the events giving rise to the criminal charge, rules which may be relaxed if the proceeding is non-adversarial.
4. Competent
[13] This standard requires that the interpretation "must be of a high enough quality to ensure that justice is done and seen to be done." At paragraph 62, the Chief Justice said: "This means, at a minimum, that an accused has a right to competent interpretation."
5. Contemporaneous
[14] This is a timing issue which the Chief Justice stated required the interpretation to take place contemporaneously with the proceeding in question. He distinguished between "consecutive" (after the words are spoken) and "simultaneous" (at the same time the words are spoken). He stated "while it is generally preferable that interpretation be consecutive rather than simultaneous, the overriding consideration is that the interpretation be contemporaneous." He stated that consecutive interpretation had the advantage of allowing the accused to react at the appropriate time, such as when making objections. He added it also made it easier to assess on the spot the accuracy of the interpretation, something rendered more difficult when one has to listen to the original language and its translation at the same time, as would be the case with simultaneous interpretation.
ANALYSIS AND CONCLUSIONS
[15] In order to establish breaches of the required standards of interpretation, the applicant in this case retained an interpreter who was not at the hearing and who listened to the recording tape of the hearing and produced a transcript which captured (1) exchanges between the interpreter and Mr. Thambiah in Tamil not interpreted and therefore not in the official transcript record; and (2) statements made by the interpreter at the hearing in English which had not been made by Mr. Thambiah in Tamil.
[16] The two concluding paragraphs of the reviewing interpreter's affidavit upon which he was not cross-examined read:
I have limited my corrections to points which seemed particularly bad. There are many minor errors I did not include, which do not seem to have caused any real confusion (for example, at one point the interpreter says Canada instead of France, but the question was finally understood regardless).
My impression was that the interpreter was impatient, and often spoke to the applicants in an annoyed and severe tone. I am employed as a school settlement counsellor, but I have also worked as an interpreter. Speaking to a refugee claimant in this way would normally be intimidating and add to the stress of having to discuss their history.
[17] My review of the transcript provided by the reviewing interpreter retained by the applicants and my consideration of the official transcript available to the tribunal leads to a conclusion that the interpretation provided the tribunal did not meet the standards of quality required by Tran and Mohammadian, supra and, as a result, the tribunal's decision must be set aside.
[18] I reach this conclusion recognizing that, in Tran, supra, the Chief Justice cautioned that interpretation does not call for perfection and the interpreted evidence should not be examined microscopically for inconsistencies.
[19] Moreover, in this case, there is no allegation the interpreter was not competent. Mr. Thambiah was understood by the interpreter at the hearing and the interpreter understood him.
[20] The evidence shows a number of breaches of the standard of interpretation required by Tran and Mohammadian, supra. The references below to CT mean certified transcript (the official record available to the tribunal) and AT-AR means applicants' transcript (AT) produced by their reviewing interpreter with references to applicants' record (AR).
[21] I enumerate the breaches:
1. The interpreter failed to interpret some of the answers given by the applicant (Mr. Thambiah) -
(a) CT page 252; AT-AR 164;
(b) CT page 255 and AT-AR page 168;
(c) CT page 264 and AT-AR page 177;
(d) CT page 265 and AT-AR page 178 and
(e) CT page 267 and AT-AR page 180.
2. The interpreter cut off Mr. Thambiah's answers and engaged in a discussion with him commenting on some of the answers, he, Mr. Thambiah, gave or had given:
(a) CT page 253 and AT-AR pages 165 and 166;
(b) CT page 266 and AT-AR page 179 providing a damaging gratuitous answer not made by Mr. Thambiah;
3. The interpreter changed the tenor of the presiding members' questions to Mr. Thambiah:
(a) CT page 255 and AT-AR page 167;
(b) CT page 267 and AT-AR page 180;
4. The interpreter provided directions to Mr. Thambiah -
AT-AR page 169;
5. The interpreter provided embellishments to answers given by Mr. Thambiah:
(a) CT pages 262/263 and AT-AR pages 175 and 176;
(b) CT page 266 and AT-AR page 178.
[22] The examples given breach the standards of continuity, precision and impartiality as discussed in Tran, supra.
[23] I do not accept the respondent's submission that the applicants waived their right to object. I note Chief Justice Lamer in Tran said the threshold for waiver was high.
[24] This is not a case like Mohammadian where the refugee claimant was clearly conscious of difficulties in interpretation but held back. In the case before me, the applicant, Mr. Thambiah, was understood by the interpreter. However, he was in no position to appreciate that the interpreter was not translating some of his answers, changed the tenor of some of the questions put to him by the tribunal or that the interpreter gratuitously provided answers he did not give. In the circumstances I conclude there was no waiver by the applicants of their interpretation rights.
[25] The need to quash this decision rests on a second ground. I agree with counsel for the applicants the tribunal misconstrued the evidence resulting in some of its credibility findings not being consistent with the requirements of 18.1(4)(d) of the Federal Court Act which provides the Federal Court may grant relief if it is satisfied the tribunal based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it.
[26] In my view, the tribunal materially erred:
(1) when it found Mr. Thambiah's problem, according to his PIF, began in November 2000. This ignores the clear statement in his PIF and in his testimony he was arrested in 1999 as well as in November of 2000;
(2) when the tribunal found his PIF narrative had omitted to mention what he testified to about the SLA harassing him between December 1999 and April 2001. This finding ignores the statement in his PIF that he had regular visits from military personnel during this period;
(3) the tribunal drew an implausibility finding that the SLA would in 1995 suddenly after 13 years start to question Mr. Thambiah about his adopted son who they knew had as far back as 1987 suspected links with the LTEE. This finding ignores the fact the SLA could not question him about his adopted son's activities until April 1996 because between 1987 and 1995 the LTEE controlled the area where the couple was living and, after the SLA captured it in 1995, the applicants had not resettled there until April 1996;
(4) the tribunal wrongly attacked the applicants' subjective fear because of their delay in leaving Jafna which the tribunal attributed to the applicants' reluctance to avoid paying a bribe in circumstances where the couple had little enough resources to pay for airline tickets.
DISPOSITION
[27] For all these reasons, this judicial review application is allowed, the tribunal's decision is set aside and the applicants claim for refugee status is remitted for consideration by a different panel of the Refugee Protection Division. My findings are fact based and would not seem to generate a question of national importance. However, each party will have one week from the date of this decision to formulate one or more certified questions with the other party having a right of reply within one week of the other party's communication to the Court proposing a certified question.
"François Lemieux"
J.F.C.
OTTAWA, ONTARIO
January 8, 2004
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-6219-02
STYLE OF CAUSE: SAMPANTHAR THAMBIAH ET AL v. MCI
PLACE OF HEARING: Toronto, Ontraio
DATE OF HEARING: October 23, 2003
REASONS FOR ORDER: Lemieux J.
DATED: January 8, 2004
APPEARANCES:
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FOR THE APPLICANT
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FOR THE RESPONDENT |
SOLICITORS OF RECORD:
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Barrister & Solicitor |
FOR THE APPLICANT |
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Toronto, Ontario |
FOR THE RESPONDENT |
Date: 20040108
Docket: IMM-6219-02
Ottawa, Ontario, this 8th day of January 2004
Present: The Honourable Mr. Justice Lemieux
BETWEEN:
SAMPANTHAR THAMBIAH and
NAGESWARY SAMPANTHAR
Applicants
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
For reasons filed this day, this judicial review application is allowed, the tribunal's decision is set aside and the applicants claim for refugee status is remitted for consideration by a different panel of the Refugee Protection Division. My findings are fact based and would not seem to generate a question of national importance. However, each party will have one week from the date of this decision to formulate one or more certified questions with the other party having a right of reply within one week of the other party's communication to the Court proposing a certified question.
"François Lemieux"
J.F.C.