Digests

Xin Tong Huang v. Canada (Minister of Citizenship and Immigration)

IMM-2236-02

2003 FCT 326, Snider J.

19/3/03

9 pp.

Applicant citizen of People's Republic of China--Upon arrival in Canada from China in December 2000, applicant claimed Convention refugee status on basis of well-founded fear of persecution on grounds of perceived political opinion --After hearing before Convention Refugee Determination Division of Immigration and Refugee Board (Board) on March 5, 2002, Board found applicant not Convention refugee--Applicant applied for judicial review of decision on basis applicant not provided with adequate interpretation and Board erred in finding applicant not credible--Since applicant does not speak English, Mandarin interpreter present for applicant's hearing at Board--Following hearing, applicant reviewed tapes of hearing with interpreter--Applicant discovered interpreter at hearing made several errors in interpretation, both from English to Mandarin and from Mandarin to English--Whether errors in interpretation cause denial of fair hearing and violate applicant's right under Charter, s. 14--Applicant has right, under Charter, s. 14, to continuous, precise, competent, impartial and contempora-neous interpretation--In present case, not reasonable to expect applicant to have raised interpretation problems at hearing-- Applicant does not speak or understand English--In addition, no indication applicant could not understand interpreter-- Rather, problem revolved around interpreter's incorrect translation from English to Mandarin and from Mandarin to English--Applicant could not be expected to recognize errors in interpreter's translation--Accordingly, applicant has not waived right to raise quality of interpretation on judicial review--In addition, during hearing, interpreter stated having some difficulty understanding applicant's pronunciation of numbers--Based on confusion, impossible to tell whether applicant actually gave inconsistent dates for relevant events or whether those dates result of incorrect translation by interpreter--Inconsistency one of reasons why Board found applicant not credible--Evidence of errors made by interpreter during translation--Errors not trivial or immaterial, errors resulted in rejection of claim--Since applicant's credibility determinative issue in case at bar, sufficient ground to allow application for judicial review--Whether Board erred in finding applicant not credible--Clear from affidavit of interpreter and from transcript Board based credibility findings, in part, on erroneous findings of fact caused by interpretation problems--Although Board did give number of other reasons for negative finding, impossible to discern whether applicant's credibility would have been impugned were it not for all of translation errors--Judicial review allowed--Canadian Charter of Rights and Freedoms, being Part I of Constitution Act, 1982, Schedule B, Canada Act, 1982, 1982, c. 11 (U.K.) [R.S.C., 1985, Appendix II, No. 44], s. 14.