Date: 20041122
Docket: IMM-9268-03
Citation: 2004 FC 1621
Toronto, Ontario, November 22nd, 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
DIDIER TSHIBANGU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Tshibangu is a citizen of the Democratic Republic of the Congo. He worked for many years at the permanent mission of the Congo at the United Nations in New York before coming to Canada. He made a refugee claim here, but a panel of the Immigration and Refugee Board dismissed it. He argues that the Board made a number of errors relating to his claim and asks me to order a new hearing.
[2] In my view, the Board made an error that justifies an order for a new hearing. It heard Mr. Tshibangu's claim in French after he specifically requested a hearing in English. Given that error, I need not deal with the other mistakes Mr. Tshibangu alleges. Accordingly, I will grant Mr. Tshibangu's application for judicial review and order the Board to re-hear Mr. Tshibangu's claim in English.
[3] Mr. Tshibangu specifically asked to be granted an English hearing before the Board. His personal information form and other documentation was in English. When he arrived at the hearing, he was surprised to learn that the proceeding would take place in French. French is his first language, but he had not used it extensively in recent years. He was not represented by counsel.
[4] At the outset of the hearing, a Refugee Protection Officer agreed to answer any questions Mr. Tshibangu had about the proceedings. According to a transcript of the discussion, in French, Mr. Tshibangu asked if it would be alright to use both French and English. The officer said that it would be up to the presiding member of the Board, who was bilingual, to decide whether that would be allowed. The officer suggested that Mr. Tshibangu should express himself in French as much as he could, Mr. Tshibangu complied.
[5] When the presiding member began the hearing, she said, in French, that she understood Mr. Tshibangu might wish to use some English words during his testimony. She informed him that he was free to do so and, if she had any difficulty understanding him, she would ask him to repeat himself. The hearing unfolded almost entirely in French.
[6] Counsel for the Minister argues that Mr. Tshibangu has no grounds for complaint because he agreed to the linguistic arrangements before the hearing began. However, as I understand the circumstances, Mr. Tshibangu did not get what he asked for. He simply complied with the advice that he received from the Refugee Protection Officer to do his best in French and only use English if he got stuck. I do not see a clear waiver of his right to a hearing in English. Mr. Tshibangu claims that he was uncomfortable using English at the hearing and was worried that, if he did not use French, the Board would doubt that he was actually from Congo, a francophone country.
[7] I believe Mr. Tshibangu was treated unfairly. Accordingly I will grant this application for judicial review and order a new hearing before a different panel of the Board to be conducted in English. Neither party proposed a question of general importance for me to certify and none is stated.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is granted;
2. A new hearing before a different panel of the Board, to be conducted in English, is ordered;
3. No question of general importance is stated.
"James W. O'Reilly"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-9268-03
STYLE OF CAUSE: DIDIER TSHIBANGU
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: NOVEMBER 4, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: O'REILLY J.
DATED: NOVEMBER 22, 2004
APPEARANCES BY:
Mr. Didier Tshibangu FOR THE APPLICANT (on his own behalf)
Mr. Lorne McClenaghan FOR THE RESPONDENT
SOLICITORS OF RECORD:
DIDIER TSHIBANGU FOR THE APPLICANT (on his own behalf)
Toronto, Ontario
MORRIS ROSENBERG
Deputy Attorney General of Canada
Toronto, Ontario FOR THE RESPONDENT
FEDERAL COURT
Date: 20041122
Docket: IMM-9268-03
BETWEEN:
DIDIER TSHIBANGU
Applicant
and
THE MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT