Toronto, Ontario, September 29, 2005
PRESENT: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In the present case, a controversy arose during the course of the hearing before the Refugee Protection Division ("RPD") respecting the quality of the interpretation provided by a Punjabi speaking interpreter from Pakistan, who interpreted the evidence of the claimant who is a Punjabi speaking person from India.
[2] During the course of the hearing before the RPD, Counsel for the Applicant made strong objection to the quality of the interpretation, but, nevertheless, the Presiding Member did not act on the objection and pressed on to complete the hearing. In the present Application, the Applicant argues that the failure of the RPD to act on the objection constitutes an error in due process.
[3] The general standard to be met with respect to the quality of interpretation is that it must be continuous, precise, impartial, and contemporaneous (Mohammadian v. Canada(Minister of Citizenship and Immigration), [2001] 4 F.C. 85 (C.A.)). In addition, for the interpretation to be considered as meeting the standard, it must be established that the Applicant understood the interpretation and adequately expressed him or herself through the interpreter (Xie v. Canada (Minister of Employment & Immigration), [1990] 2 F.C. 336 (C.A.)).
[4] During the course of trying to resolve the controversy with respect to the quality of the interpretation, the Presiding Member made the following statement:
Well, I've hear your objection, sir. Interpretation is not a science; it's not an exact. It is translation of words. I'm going to ask you, sir, is the police after you, or against you?
(Tribunal Record, p.195)
In addition, with respect to the application of the standard, in his affidavit in support of the present Application, the Applicant states as follows:
50. During the hearing I had many difficulties understanding certain words that was used by this interpreter and especially the nature of the questions asked. I tried my very best to answer the questions but did not know for such what was being asked of me at times.
51. I also had difficulty expressing myself to this interpreter since he would translate differently what I told him orally.
(Applicant's Application Record. p.22)
[5] I find that the Presiding Member's statement made during the course of the hearing is an error in law. In addition, based on the Applicant's affidavit, on which he was not examined, I find that the Applicant was denied a fair hearing. As a result, I find the RPD's decision to be patently unreasonable.
ORDER
Accordingly, I set aside the RPD's decision and refer the matter back to the differently constituted panel for redetermination.
JUDGE
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-10462-04
STYLE OF CAUSE: YADVINDER LAMME
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: September 28, 2005
APPEARANCES:
Diana Willard For the Applicant
Matina Karvellas For the Respondent
SOLICITORS OF RECORD:
Diana Willard
Barrister and Solicitor
Toronto, Ontario For the Applicant
John H. Sims, Q.C .
Deputy Attorney General of
Canada For the Respondent