By Will Tao
The Lo Decision
In Lo v. Canada (Citizenship and Immigration) 2020 FC 684, Justice Elliot heard the judicial review of a Sponsor who received a negative decision from the Immigration Appeal Division relating to his sponsorship. The IAD found that the Applicant did not demonstrate on a balance of probabilities that his marriage was genuine and not entered into for the primary purposes of acquiring status under the Immigration and Refugee Protection Act [IRPA] also colloquially known as a ‘R.4 refusal.’
The main issue in this case was interpretation. Mr. L argued that there was inadequate interpretation from Cantonese to English that led to a breach of procedural fairness thus leading the IAD to conclude erroneously that they were providing vague answers in their testimony (para 11).
Justice Elliot sets out the law for adequate interpretation citing the seminal case of Mohammadian v. Canada (Minister of Citizenship and Immigration, 2001 FCA 191 at paras 4 to 6.
Paragraphs 18-20 of the decision set out the relevant law in this area:
[18] It is accepted that while interpretation must be continuous, precise, competent, impartial and contemporaneous it is not required to be perfect. Nor is proof of actual prejudice required to obtain relief: Mohammadian v Canada (Minister of Citizenship and Immigration), 2001 FCA 191 [Mohammadian] at paragraphs 4 and 6.
[19] To ground a finding that there has been a breach of procedural fairness, the Applicant must show that there are serious, non-trivial, problems with the interpretation: Siddiqui v Canada (Citizenship and Immigration), 2015 FC 1028 [Siddiqui] at paragraph 72. The Applicant is not required to demonstrate that an interpretation error underpins a key finding if they can establish that there was a real and significant interpretation error: Mah at paragraph 26; Siddiqui at paragraph 68.
[20] In Mohammadian, the principle or purpose of interpretation was acknowledged to be “linguistic understanding”, based on statements made by Chief Justice Lamer in R v Tran, [1994] 2 SCR 951.
Paragraph 21 of the decision is particularly important giving a precursor to Justice Elliot’s decision that linguistic understanding can still be found while there are problems with the interpretation:
[21] An example of when linguistic understanding may be found, despite there being a variety of problems with the interpretation, is provided by Mr. Justice Boswell in Dhaliwal v. Canada (Public Safety and Emergency Preparedness), 2015 FC 157 at paragraph 67:
[67] In my view, the interpretation was not as precise as it could have been. The interpreter occasionally interpreted in the third person instead of the first person; she paraphrased a lot; she sometimes added information that was not said; and she was sometimes mistaken. However, as the Supreme Court has recognized, interpretation is “an inherently human endeavour which often takes place in less than ideal circumstances”(Tran at 987). Despite the imperfections in this case, I think the Applicant always understood what was being said and was herself understood. There was linguistic understanding between the parties on the essential issues before the IAD. (emphasis added)
There are some strategic issues with the decision that I will not spend too much time delving into. The Applicant relied on an affidavit from the Applicant’s daughter who created an unofficial transcript to compare to the hearing transcript. I likely would have utilized a different third party (official interpreter) assuming costs were not an issue.
Justice Elliot’s Decision
Paragraph 38 of the decision highlights the common challenges in this area, reflective of the case law.
[38] Keeping in mind that adequacy, not perfection, is the required standard for interpretation I find that the interpretation was adequate. I also find that any errors were not material to the outcome, therefore it is not necessary to consider the question of waiver. (emphasis added)
Justice Elliot then goes into three specific areas – a disagreement over the discussion of financial support by way of rent, pauses on questions related to compatibility, and information relating to the Applicant’s stepson. Justice Elliot compares the two transcripts (the official and the unofficial) and finds that in many of these sections where concerns were raised, the transcripts said essentially the same thing. Justice Elliot did not see any differences as affecting the vagueness of the answers.
She concludes in her written decision:
[86] As I have set out in these reasons, I am unable to agree that any interpretation errors were material or that they prevented the Applicant from having a linguistic understanding of the hearing or his ability to express himself. The interpretation at the hearing was not perfect but it was adequate.
[87] The Applicant contributed to the difficulties experienced by the interpreter. The transcripts show that at several times during the hearing the IAD and the interpreter each had to caution the Applicant and remind him: (1) not to interrupt whoever was speaking; (2) wait for a question to be completed before answering and (3) use short sentences, with pauses between them.
[88] The Decision was based on the Applicant’s answers. When an answer was not clear or was not detailed, either the Respondent or the IAD persisted with questions to clarify the answer or obtain more detail. By that process, any uncertainty or interpretation error that might have left a wrong impression was corrected. The Applicant’s failure to provide sufficient detail cannot be traced back to the quality of the interpretation at the hearing.
[89] Notwithstanding the able and clear arguments of counsel for the Applicant, I am unable to conclude that the IAD hearing was procedurally unfair to the Applicant or that an unreasonable finding was made about the genuineness of his marriage. (emphasis added)
Three Interpreter Best Practices for the IAD
With the decision and case law being where they are, how does one prevent, if possible interpreter issues coming up at the IAD.
Below I will outline three tips I try to utilize in most cases
(1) Practice Oral Examination/Cross-Examination at least Once with Certified Interpretation
As much as we or our office staff may speak the third-language of the appeal, we ultimately are not certified and many times can assume our questions asked are being asked the way we have framed them and the answers we hear are the ones we want to hear.
Ensuring that at least one round of examination/cross-examination is done with a third-party certified interpreter with no history of the case can provide at least a context or understanding of the way questions can be asked in a confusing manner and responses can often appear vague. It also provides the Applicant an opportunity to practice the very hard task of separating statements for which they wish to speak for a significant time into one sentence at a time. Trust me when I say this skill does not come easily, particularly with older clients who have poorer memories and require streams of thought to spur memories. It is also good to have the Applicant hear what other individuals are answering and be able to correct them on factual mistakes.
The cost of interpretation is often around $30-$50 dollars per hour. While it does cost an additional $200+ dollars is expensive, in the scope of how much legal fees are for appeals and how crucial it is to the client’s success, it is a necessary disbursement from my perspective.
(2) Find a Family Member/Friend as a Liaison Who Speaks Both English/Second Language of Appeal Fluently
Knowing certified interpretation is expensive but that most clients do need time to work on their testimony, I also employ the practice of having a trusted family member/family friend be part of interpreting until that final session. Many of my clients that I work with on appeals speak no English (ironically a factor that the Minister often tries to attack establishment with). I find that there are several benefits of having a family member/friend act as a liaison, particularly when they themselves are also involved as a witness and more clarity can be gained by hearing the principal applicant/sponsor talk about their situation. Remember though that as a result of their involvement, they need to be careful to separate what they knew before and what they knew after assisting. I find that time continuum/dates are a major issue in appeals and testimony congruity.
Remember also to seek the client’s written consent to bring the individual into preparation or assistance. In some cases materials shared made be very sensitive and by having the third-party in the room, it may affect the manner in which the evidence is received or responses are provided.
(3) Have Someone in the Room During the Hearing
One recommendation I always make is to have one of the family friends who attends as a witness be fluent in both languages. They themselves will not be a witness (allowing them to stay in the room through the proceedings). They will hear the interpretation
Ensure to let them know that they are not to interrupt the Member or proceedings with their responses/reactions during the hearing. Those reactions are not addressed positively. Create some sort of code signal or utilize breaks to confer with them on interpretation. As counsel, you should not be afraid to approach the Member with your concerns.
It also is worth mentioning that in many law firms there are second language skills – either with support staff or with lawyers themselves. This is a good opportunity to allow support staff to get some practical experience of attending a hearing or for more senior lawyers to allow junior lawyers with language skills to showcase their litigation abilities. Being Mandarin-speaking myself I have attended several hearings for clients and in circumstances was able to step in to correct interpretation on the spot or ask for clarification.
One of the recommendations I gave in my paper titled Re-Centering the Resilience and Resistance of Migrant Women of Colour: Exploring the Potential of Intersectionality and Indigenous Approaches to Immigration Appeals was the possible employment of community elders (particularly within one’s ethno-cultural community) in cases where appellants are unrepresented. This also may (if my recommendations are pursued in the future) be something that can be implemented.
What are your tips?
Share them with is and hopefully we can create more best practices to ensure our clients are able to put their best foot forward through immigration appeals.
Will Tao, BA, JD, is a Canadian immigration and refugee lawyer at Edelmann & Co. He provides legal services in all areas of Canadian immigration and refugee law, with a focus on complex refusals, appeals and judicial reviews. Will also provides strategic advice and consulting to government, media, educational institutions, and businesses on immigration/refugee, decolonization and race/inclusion-related issues.