Date:20000803
Docket: IMM-4764-99
BETWEEN:
TUYET MAI and SOI THI DO
Applicants
- and -
THE MINISTER OF CITIZENSHIP & IMMIGRATION
Respondent
REASONS FOR ORDER
TEITELBAUM, J:
[1] The applicants challenge by way of judicial review the decision, dated September 8, 1999, made by the Convention Refugee Determination Division (CRDD) of the Immigration and Refugee Board in which it was determined that the applicants are not Convention refugees within the meaning of subsection 2(1) of the Immigration Act1. Leave to commence this application for judicial review was granted by Tremblay-Lamer J. on May 4, 2000.
I. Background
[2] The applicants, Tuyet Mai and his wife Soi Thi Do,2 are citizens of Vietnam. They arrived in Vancouver, Canada on February 5, 1998. The applicant made a claim for Convention refugee status in Calgary on March 16, 1998, and his wife asserted her claim in September 1998. The applicant claims a well-founded fear of persecution in Vietnam at the hands of the government due to his political opinion; the applicant"s wife"s claim is based on being a member of a particular social group, viz . the applicant"s family.
[3] In his Personal Information Form (PIF), the applicant states that from 1968 to 1975, he worked for the government division responsible for developing rural homes, in particular, the provincial section for Lam Dong province. After Vietnam fell to the Communists, he was sent to a correctional camp, following which he was released under terms of supervision. The terms required the applicant to submit a weekly written personal evaluation; report when required for meetings; be present and ready to open his house for searches at any time; secure police permission before going anywhere; carry out all practices of the district board of director; and he was prohibited from practising non-approved jobs.3 At the hearing, the applicant indicated that he was allowed to be a labourer.4
[4] The applicant indicated on his PIF that from 1975 until the present he has not been employed
[5] The applicant answered "N/A" on his PIF in regard to questions concerning military service, i.e. whether it is compulsory; whether he served; the nature of his service (voluntary or not); and dates of service.
[6] At the hearing before the CRDD, the applicant stated that he did indeed serve with the military in Vietnam, and that his work for the Government Housing Development Program constituted his military service. He further testified that in 1985 he had about 800 coffee trees and sold annually one ton of coffee beans to coffee merchants, with the permission of the government.5
[7] The applicant testified that after the war ended in 1975, he was captured by the Communist government and sent to a re-education, or correction, camp.6 He also testified that for three days he was tortured; he was stripped, tied up with his hands above his head, and bound so that he could not move.7
[8] The applicant submitted to the CRDD a psychological assessment completed by Dr. Hap Davis, dated May 25, 1999.8 The report was conducted at the behest of applicant"s counsel, who posed certain questions for the doctor to address in his analysis of the applicant"s situation. The report concludes that the applicant suffers from Post Traumatic Stress Disorder (PTSD), as well as symptoms of depression (however, a diagnosis of depression was not made). Dr. Davis assessed the applicant as a category 4 (out of a possible 5), indicating a high level of risk for psychological harm if returned to Vietnam.9
[9] Finally, it should be noted that at the applicant"s and his wife"s hearing before the CRDD, they had an observer present, Co Nguyen.
II. Tribunal"s Decision
[10] A hearing was held before the CRDD on June 2, 1999, and the panel"s decision was released on September 8, 1999.10 The panel concluded that the applicant"s fear of persecution in Vietnam was not well-founded; consequently, the applicant"s wife"s claim also failed. The panel"s reasons reveal that it had difficulties with three areas of the applicant"s testimony: his past military service in Vietnam, from 1968-1975, his subsequent employment, or lack thereof, and the events surrounding the applicant"s departure from Vietnam. The panel also reached negative conclusions regarding the psychological assessment of the applicant by Dr. Davis.
[11] In its decision, the panel states that it found the applicant was not being truthful about his past activities while in Vietnam, specifically in relation to his military service and the period thereafter:
| The panel finds that the claimant was not being truthful about his past activities while in Vietnam. He omitted his military service from his PIF and stated he worked for a Government Housing Development program from 1968 to 1975, the period he was in active military service. He also wrote in his PIF that he was unemployed thereafter when he was farming, albeit on a small scale. This impacts negatively on his credibility. The panel finds that the claimant"s leaving out this vital information about military service and his means of livelihood brings into question his credibility regarding his evidence in the remainder of the claim, especially details of his duties while serving in the military. The panel does not believe he did not engage in active combat or services related to it.11 |
[12] The panel also found problems with the applicant"s actions with regard to the homes he owned in Vietnam and the way in which he dealt with them before leaving Vietnam:
| The claimant was asked about three houses that he indicated in his CVV [Canadian Visitor"s Visa] application that he owned. He was also asked about the delay from the time he obtained his visa on 9 October 1997 to 5 February 1998 when he came to Canada and his response revealed that the claimant delayed to facilitate transfer of titles to his houses to his adult children who are in Vietnam. The panel finds that while the claimant alleged that he is afraid to return to Vietnam because of an undertaking to return which he signed on leaving, he had no intention of returning. He made arrangements to transfer titles to his properties to his children before leaving. The panel does not accept his explanation that he did so for fear that if he did not return the authorities would confiscate his property. There is no evidence before the panel to indicate that the authorities in Vietnam cannot confiscate the property now if they had any reason to do so. |
| The panel looked at the circumstances of the claimant leaving Vietnam. The claimant applied for a CVV and was issued one on the [sic] 9 October 1997. He had no problem leaving on his own passport in his own name. When asked whether transferring titles to the properties to his children did not cause any suspicions, his response was, "We used the excuse that the children are grown up and we are getting old." The panel does not accept this as a reasonable explanation of his action. This was a calculated act and the claimant took his time to complete the transactions without any problems.12 |
[13] Finally, with regard to the psychological assessment of the applicant, the tribunal held,
| The panel lastly examined the psychological report of Dr. Davis. [footnote omitted] The panel notes that the claimant arrived in Canada on 5 February 1998 but did not go to see Dr. Davis until May 1999. He spent four hours with the doctor during which time he was interviewed. He was not referred to any other physician for treatment and no follow-up sessions were deemed necessary as none was recommended. The claimant was asked if Dr. Davis made any recommendations to him and he responded that, "He advised me to live in a peaceful place and avoid stress." The report says at page 5 that: |
| It is roughly 50% likely that he would become depressed if returned, and it is a near certainty that his PTSD [Post Traumatic Stress Disorder] would increase in severity if returned to any region in Vietnam. |
| The panel finds that the lack of a definitive recommendation for treatment calls for a reasonable inference that the doctor did not rate the risk that high.13 |
III. Issues
[14] The following are the issues to be determined:
| 1) Was the applicant denied natural justice by reason of inadequate translation in regard to his oral testimony, and can the applicant raise such an objection in this judicial review? |
| 2 ) Did the CRDD err in its rejection of the applicant"s credibility, based on erroneous inferences and findings of fact, arising, in part, from the translation? |
| 3) Did the CRDD err in its assessment of the psychological report of Dr. Davis? |
| 4) Did the CRDD err in failing to assess the applicant"s claim based on evidence other than his testimony? |
IV. Applicant"s Position
[15] The applicant contends that the interpretation provided at the hearing before the CRDD was unsatisfactory and led to serious misunderstandings of the applicant"s testimony, to the prejudice of the applicant and his wife. The applicant relies on the affidavit of Co Nguyen, who observed the proceedings before the CRDD.14
[16] The applicant submits that the panel"s negative credibility findings arose from misunderstanding the applicant"s oral testimony, incorrect interpretation of that testimony, and reliance upon the panel"s own speculation.
[17] The applicant submits that the panel"s conclusion regarding the psychological assessment is unreasonable and ignores most of the report"s findings. The applicant argues that the report"s purpose was purely that of providing an assessment of his situation, not that of working out a plan for treatment. The panel"s conclusion that the doctor did not rate the risk of return to Vietnam "that high" ignores the report"s findings.
[18] Finally, the applicant contends that the panel failed to assess the claim in light of other evidence. Specifically, the panel makes no mention in its reasons of the document titled "Order of Detention and Restraint."15 The applicant submits that even if his oral testimony is entirely discounted, there still exists evidence sufficient to establish a well-founded fear of persecution.
V. Respondent"s Position
[19] The respondent submits that if the applicants had concerns with the quality of interpretation at the hearing, they were obliged to raise those concerns at the earliest practicable opportunity. There was a three month delay between the conclusion of the hearing and the panel"s decision, which, the respondent submits, gave the applicants ample opportunity to inform the CRDD of their concerns. The respondent contends that the applicants" conduct amounts to an implied waiver of any breach of the principles of natural justice.
[20] The respondent contends that, in any event, the interpretation errors were insignificant and did not play a major role in the CRDD"s decision.
[21] The respondent also submits that it was open to the panel to make the adverse credibility findings which it made.
[22] With regard to the psychological assessment, the respondent contends that it was open to the panel to assign the report no weight for the following reasons: the applicant did not see the doctor until just prior to the CRDD hearing; the report makes no referral for treatment or follow-up; and the facts as related by the applicant to Dr. Davis are inconsistent with the facts given by the applicant at the hearing.
VI. Analysis
1. Interpretation
[23] The issue of faulty or deficient interpretation was most recently dealt with in this Court by Pelletier J. in Mohammadian v. Canada (Minister of Citizenship and Immigration).16 In that case, the Court considered the applicability of the Supreme Court of Canada"s decision in R. v. Tran17 to proceedings before the CRDD.
[24] In Tran, a Vietnamese man was charged with sexual assault; at trial, he was assisted by an interpreter, who was later required to testify after an identification issue arose. The interpreter provided the accused with only a summary of the questions he was asked and the answers he gave; the interpreter did not translate for the accused an exchange between himself and the judge at the conclusion of his evidence. The accused appealed his conviction on the ground that his section 14 Charter right had been infringed.18
[25] Lamer C.J.C., in Tran, reviewed the common law and legislative history of the right to an interpreter, and set out the framework in which to define a section 14 violation. If a breach of the framework can be shown, the accused (Lamer C.J.C. was writing in the context of criminal proceedings) does not have to show that he or she has been prejudiced by the breach; the prejudice lies in being denied the right to which one is entitled.
[26] In Mohammadian, Pelletier J. concluded that the framework for analysis of a s. 14 breach and the elements of the appropriate standard of interpretation as set out by Lamer C.J.C. in Tran should be adopted to apply to proceedings before the CRDD.19
[27] However, the more difficult issue, according to Pelletier J., is whether the absence of prejudice and impossibility of waiver, as articulated in Tran, should also be adopted:
| Is it beyond the bounds of a civilized society to expect a refugee claimant who seeks admission to Canada to complain at the first opportunity when he/she cannot understand the interpreter provided for them by the CRDD? The applicant"s onus to establish his/her entitlement to refugee status must surely extend to identifying known procedural defects as they occur instead of hoarding them as insurance against future disappointments.20 |
[28] Pelletier J. then reviewed this Court"s jurisprudence on the issue of the requirement that interpretation errors be raised before the CRDD as a condition of obtaining relief on a subsequent application for judicial review, and concluded:
| This review, which is far from exhaustive, shows that in some cases applicants have been allowed to raise issues of defective translation as grounds for judicial review when it may not have been raised before the CRDD. It is clear that counsel have not been allowed to let manifestly poor interpretation pass without objection and then raise poor interpretation as a ground for judicial review. Aquino v. Canada, supra. There is an obligation on the part of counsel to draw such matters to the attention of the tribunal so that it can be remedied at the hearing itself. Counsel and their clients cannot hedge their bets by ignoring the issue and then raising it in the event of an unfavourable result. |
| In general terms, the cases reviewed appear to suggest that where problems of interpretation could be reasonably addressed at the time of the hearing, there is an obligation to address them then and not later, in judicial review proceedings. There is an obligation on both the tribunal (see Xie v. Canada, [1990] F.C.J. No. 173) and counsel (see Aquino) to take steps to see that interpretation is adequately addressed. Where the error cannot be detected until after the hearing (Mosa), the lack of prior complaint has not been held against the applicant. |
| There does not appear to be anything in these cases which would preclude a requirement that a complaint about the quality of interpretation be made at the first opportunity where it is reasonable to expect such a complaint to be made. |
| There is a powerful argument in favour of such a requirement arising from judicial economy. If applicants are permitted to obtain judicial review of adverse decisions by remaining silent in the face of known problems of interpretation, they will remain silent. This will result in a duplication of hearings. It seems a better policy to provide an incentive to make the original hearing as fair as possible and to avoid repetitious proceedings. Applicants should be required to complain at the first opportunity when it is reasonable to expect them to do so. |
| The crucial element is the reasonableness of the expectation that the claimant complain at the first opportunity. In many cases, the applicant is aware that he/she is having difficulty communicating with the interpreter. The reasons may vary but the applicant is aware of the difficulty. In those circumstances, it is reasonable to expect the applicant to speak up. There are other cases where the defective interpretation is not known to the applicant because the errors occur in the language of the tribunal in which the applicant is not competent. Such errors may only be discoverable after the fact, and in those cases, it is not reasonable to expect the applicant to make a complaint at the time of the hearing.21 |
[29] Thus, it is a question of fact in each case as to whether and when it is reasonable to expect a complaint about interpretation deficiencies to be made.
[30] In the instant case, the interpretation difficulties now alleged appear to have arisen when the interpreter was translating the applicant"s testimony from Vietnamese into English; it does not appear that the applicant was aware of these difficulties, and it is certainly clear that he was not competent in the English language. No objections were made by the applicant"s counsel at the time of the hearing as to the quality of interpretation. It should also be noted that there was a 15 minute break in the proceedings following the majority of the questions posed by the applicant"s counsel during his direct examination.
[31] In the case at bar, the first opportunity at which it is reasonable to have expected the applicant to have raised the issue of interpretation deficiencies is either at the hearing itself (following the break in the proceedings), or shortly thereafter when the panel had taken the issue under reserve. This was not done. In the circumstances of this case, it is not reasonable to raise this issue as a ground for judicial review after the decision of the Board was handed down.
2. Applicant"s Credibility
[32] It is well established in the jurisprudence that the CRDD is accorded considerable deference on judicial review in regard to credibility findings; on review, the Court may not interfere with such findings unless they are found to be perverse, capricious, or made without regard to the evidence before the tribunal.
[33] In its reasons, the panel clearly states that it made an adverse finding regarding the applicant"s credibility. This stemmed from the panel"s belief that the applicant was not being truthful about his past in Vietnam: he did not indicate on his PIF his military service or his coffee bean enterprise/livelihood.
[34] While these findings by the panel may be questionable given the applicant"s testimony and the fact that he made no attempt to conceal his past, they are within the panel"s purview as the trier of fact.
[35] Furthermore, the panel"s conclusion with regard to the applicant"s four month delay in leaving Vietnam, from October 9, 1997 when he received his Canadian Visitor"s Visa, and February 5, 1998 when he actually departed, is reasonable. Quite simply, the panel was not impressed that this delay accorded with the applicant"s alleged subjective fear of persecution. Is it reasonable for a person fearing persecution to remain in the country for a further four months when the means of easy departure are at hand? The panel concluded that it is not reasonable, and this Court sees no basis for interfering with that finding.
3. Psychological Report
[36] With regard to the psychological assessment of the applicant, the panel appears to have given it little, if any, weight. They do so primarily because the report does not call for any treatment or follow-up. The panel infers from this that the doctor did not rate the risk of return to Vietnam on the applicant"s mental health that high.
[37] The report was made in response to a request from the applicant"s counsel (and this may be why it was done so close to the CRDD hearing, another point on which the panel seizes in order to dismiss the report). The opening paragraphs of the report are instructive:
| Thank you for asking me to perform a psychological assessment on the above-named relative to his application for Convention Refugee Status. I saw him with his wife on May 21, 1999 to address questions posed by you. In preparation of this report I have read the Personal Information Form. He was accompanied by his brother-in-law, Mr. Throng-Do, who worked as an interpreter. |
| I have found no psychological reason by virtue of language or credibility to question his account therein. Mr. Mai has given me permission to submit my findings to you on his behalf. Specifically, you asked whether there were psychological factors which should be considered relative to the return of this man and his family. Accordingly, I have assessed: |
| (a) the credibility of Mr. Mai; |
| (b) the subjective validity of his fear of persecution; |
| (c) the implications of his psychological difficulties.22 |
[38] Thus, without delving into the actual merits of the report, it is clear that Dr. Davis was given a specific mandate by the applicant"s counsel. It did not include any recommendations for treatment, referrals, or follow-up. Indeed, in the report, Dr. Davis concludes:
| It is my opinion based on my reading of the published psychological research that a person who suffers from chronic PTSD attributable to the Vietnam war has undergone permanent changes in brain chemistry and cannot be expected [sic] ever recover from this disorder.23 |
[39] Dr. Davis concludes his report by rating the applicant as a category 4, in terms of risk to mental health should he be returned to Vietnam. Category 4 indicates a high risk for psychological harm if returned, with category 5 indicating an extreme risk.24
[40] Given this express statement by the doctor, as well as the report"s stated purpose, the panel"s dismissive approach to this report appears to amount to an error in terms of the weight it assigned to the report.
4. Failure to Assess Claim
[41] No mention is made in the tribunal"s reasons of the document titled "Order of Detention and Restraint". This document, in its translated form, appears to set out the fact of the applicant"s internment in the correctional camp.
[42] It is presumed that the panel, in coming to its decision, had regard to all of the evidence before it. In its reasons, the panel does not disbelieve the applicant"s story regarding his detention and the treatment to which he was subjected. Therefore, the panel"s failure to mention the Order of Detention and Restraint is not enough to warrant this Court"s intervention. Had the panel expressed disbelief regarding the applicant"s incarceration, such an omission would have been more serious; however, in the present case, it has no impact on the final decision of the panel.
VII. Conclusion
[43] One of the underlying findings which led the CRDD to reject the applicant"s claim for Convention refugee status is based on the evidence of the applicant"s behaviour just prior to leaving Vietnam, and the inferences to be drawn from such facts. The applicant had secured a visa and was free to leave Vietnam, the country in which he claims to fear persecution; yet he remained there for some four months. During that time, he transferred title to his property to his adult children. And then he lingered on. Even if the panel erred in its assessment of Dr. Davis" psychological report, its decision is reasonable in light of this particular finding and the conclusion drawn from it. The applicant must establish that he subjectively fears persecution and in the case at bar, the applicant has failed to show that he has a genuine subjective fear.
[44] Accordingly, the applicant" application for judicial review is dismissed. Neither party recommended a question for certification and thus, none will be certified.
"Max M. Teitelbaum"
J.F.C.C.
Ottawa, Ontario
August 3, 2000
__________________1Immigration Act, R.S.C. 1985, c. I-2 [hereinafter the Act].
2Tuyet Mai will be referred to as the applicant, or the principal applicant; Soi Thi Do will be referred to either by name, or as the applicant"s wife as her claim for Convention refugee status is dependent on that of her husband.
5Tribunal Record, pp. 343, 352, 357-358.
6Tribunal Record, p. 336-337, 351.
7It should be noted that this incident was not mentioned in the applicant"s PIF.
8Applicant"s Record, pp. 18-27.
14Applicant"s Record, pp. 53-56.
15Tribunal Record, p. 294-295; translated from Vietnamese.
16Unreported, IMM-6500-98 (March 10, 2000) (F.C.T.D.), [2000] F.C.J. No. 309 (Q.L.) [hereinafter Mohammadian].
17(1994), 32 C.R. (4th) 34, 92 C.C.C. (3d) 281 (S.C.C.) [hereinafter Tran].
18s. 14. A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.