Tag Archives: Interpretation

Federal Court’s Decision in Lo and Three of My Interpreter/Interpretation ‘Best Practices’ at the Immigration Appeal Division (IAD)

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.

 

Lessons from Losses – Importance of Good Interpretation in Immigration

I recently was counsel on a multi-layered case named Zhang v. Canada (Citizenship and Immigration), 2018 FC 502 (CanLII), <http://canlii.ca/t/hs2j6>

In Zhang, the client (my client) attended an in-Canada spousal  interview with former counsel and as well with an interpreter who former counsel had assumed was certified, but was actually not.  In-Canada spousal interview have a heightened level of procedural fairness. Only a few cases to through to this interview stage. Without appeal rights, this interview serves as the final decision, and often with clients that have status issues, a refusal could be a trigger point for enforcement and possibly long-term separation.

The Officer in the matter decided to proceed, even know the interpreter was unqualified. This lack of qualification was not shared with the Applicant, only the Sponsor, who himself conducted his portion in English. For the Applicant, the Officer asked merely if she “understood the intepreter.”

While Justice Phelan did not rule our way, I found it interesting how this case and my recent experiences with my new Firm have really opened up my eyes to interpretation and the importance of certified interpretation.

Interpreters can truly make and break cases. Even for something as seemingly simple as a client consultation (and where you yourself may have a working understanding of the language), having a certified interpreter present is crucial.  Even where an assistant may be fluent in a language, having an independent certified interpreter available to provide accurate accounts and swear required affidavits. I have seen in too many cases the haphazard signing of affidavits in the English language where the affiviant has little clue of the content.

The case law around interpretation, from my preparation on the file, is very scattered. I won’t go into too much detail here, but it appears that it is only in cases where Tribunals or Government’s are providing the interpreter, where the interpretation is not clear and contemporaneous, and where the Applicant attempts to draw this to the attention at the earliest possible time that procedural fairness/Charter rights are ultimately triggered.

In Huang, the Federal Court set out the requirement as follows:

[8]                The Applicant has a right, under section 14 of the Charter, to continuous, precise, competent, impartial and contemporaneous interpretation. The Applicant is not required to show that he has suffered actual prejudice as a result of the breach of the standard of interpretation in order for this Court to interfere with the decision of the Board (Mohammadian v. Canada (Minister of Citizenship and Immigration), 2001 FCA 191 (CanLII), [2001] 4 F.C. 85 (C.A.), leave to appeal dismissed, [2001] S.C.C.A. No. 435 (QL) ; R. v. Tran, 1994 CanLII 56 (SCC), [1994] 2 S.C.R. 951 ).

Huang v. Canada 2003 FCT 326 at para 8

However, this is contrasted by another decision, Baloul, that applies a much higher standard for mistakes made by the Applicant (any by extension, their counsel) themselves:

[22]… The applicant had sufficient time to obtain an interpreter, but chose not to. The risks associated with this choice were spelled out in unequivocal terms and the applicant chose to assume these risks. I would add that the onus placed on the applicant to provide an interpreter has been upheld by this Court (Kazi v Canada (Minister of Citizenship and Immigration)2002 FCT 733(CanLII) at paras 16 -18, [2002] FCJ 969).

[23]  When it became apparent the applicant was having difficulties understanding and answering the immigration officer’s questions, for the benefit of the applicant and though she was not required to, the officer offered to invite a colleague to interpret. The applicant agreed to this suggestion of her own volition and cannot now question the quality of this interpretation when she was well aware of the consequences of not arranging for her own professional interpreter. Furthermore, it is well established law that where there are translation problems, the complainant must raise the problem at the first reasonable opportunity (Oei v Canada (Minister of Citizenship and Immigration)2002 FCT 466 (CanLII) at paras 40 and 42, [2002] FCJ 600Kompanets v Canada (Minister of Citizenship and Immigration)2000 CanLII 15377 (FC)[2000] FCJ 726 at para 9, 196 FTR 61; which the applicant did not do in this case.

I don’t change my own legal position (that I presented) that this requirement should run both ways. For an Applicant who does not speak English and a Counsel who does not speak the Applicant’s first language, interpretation is a complicated exchange. I do believe that there needs to be a clear instruction to IRCC Officers that if the interpreter is not qualified and upon confirmation that this was not a bad faith error, that the Sponsor and Applicant should be fully advised of the fact and asked to sign a document either confirming a new appointment or waiving the requirement for certified interpretation.

This level of heightened procedural fairness is consistent with IRCC’s position at the Port of Entry.

OP4 of IRCC’s Port of Entry Manual states:

A border services officer who is using a non-accredited interpreter to conduct an examination should suspend the examination if it becomes apparent that the person may be inadmissible. The examination can be continued once a competent interpreter is available. This is important for the following reasons:

  • When making a decision on admissibility, the border services officer needs a reliable and trustworthy interpreter in order to be sure that information provided by the client is accurately translated. Inaccurate translation could result in a decision based on misinformation, which is detrimental to the person. This would constitute a breach of natural justice.
  • Information obtained at examination is often used as evidence in admissibility hearings and, less frequently, in criminal prosecutions. If a competent interpreter is not used, the evidence can be discredited or rendered inadmissible.
  • All immigration decisions relating to admissibility are subject to judicial review by the Federal Court. The Federal Court reviews the fairness of the process leading to the decision and will strike down any decision based on evidence obtained through an interpreter whose competency is in doubt.

Not ironically, in a June 2018 update not long after my case was published, IRCC put an additional section regarding complaints about an interpeter.

Complaints about an interpreter

Complaints regarding interpreter competency or comportment can generally arise before, during and/or after the interpretation services are delivered. The complaints could range from no-show or last-minute cancellations, to poor interpretation, to after the service when the interpreter could engage with clients and claimants in communication that could be a ground for conflict of interest.

Authorized IRCC users and clients/claimants must raise concerns with respect to interpretation during the course of the interpretation service, at the first opportunity, unless there are exceptional circumstances for not doing so.

Where concerns arise regarding interpreter competency based on information that only became available after the service is rendered, the authorized IRCC user should discuss these with an interpreter as soon as possible.

It is so very crucial for counsel to clarify that their interpreters are properly engaged. I strongly recommend familiarizing yourself with the STIBC (https://www.stibc.org/).

Hopefully, with more counsel utilizing interpretation and clients realizing how important this additional $50 dollars an hour (or so) could be to their immigration cases, that we reduce the types of mistakes that could have devastating impacts, particularly on those without financial means to seek legal support and advice.

Cultural Challenges at the IAD

Two weeks ago, I attended a very interesting workshop held at the Law Courts Centre discussing the issue of how issues around ethnic diversity and race may affect the overall judgment of a legal decision-maker. Given that the speakers were a current judge and a former judge (now lawyer), I expected a very cautious discussion. I was surprised to find that both admitted there were significant cultural competency challenges facing decision-makers, particularly around such things as cultural traditions (re: marriages and families) as well as the importance of effective interpretation/intepreters.

The Use of Interpreters

I recently had the privilege of sitting in on an Immigration Appeal Division (IAD) spousal appeal where I witnessed interpreting challenges in practice. The interpreter admitted at the forefront that there were dialect issues and in general was having difficulty keeping up with the fast pace of the witness (who was testifying by phone). The decision-maker was noticeably irritated by the witnesses inability to be concise and cooperate with the interpreter. Cantonese for many who do not speak it comes off very fast and harsh (even to someone who speaks mandarin like myself). The Member at the hearing was noticeably unamused by the tone of the witness.

At the workshop, the judges both recommended that if the witness is able to speak English they should use that as the language of testimony. I completely agree. The individual used (particularly in immigration hearings) is not a professional certified interpreter. Furthermore, many terms and human emotions simply do not pass through interpretation. I believe that the credibility of the witness is is inevitably weakened and definitely not aided.

Mental Illness

Another cultural challenge that I have seen in several IAD cases (a few that have led to Judicial Reviews) is the issue of mental illness and disability. In the West, we have a very advanced view of mental illness and disability compared to many countries of the world. While undoubtedly  stigma and prejudice still exist, parents generally know from an early age from their family doctors and educators what the child suffers from and what type of treatment options are available.

In much of the world this is not true. Mental illness is not well-studied nor understood and it is often not an issue that families enjoy discussing at the dinner table. Rather than relating to the specific name of the disease, the Chinese name for many of these illnesses is simply the blanket term “mental illness” or “personality illness.”

Consequentially, I have seen quite a few cases where family members and spouses were unaware of the diagnosis of the mentally-ill/disabled individual and only able to describe several of the key effects (i.e lower IQ, trouble functioning in public, etc.). These factors were later turned around and used as signs that the underlying relationship (in the immigration context) was non-genuine and therefore excluded the family relationship and rejected the appeal.

I think decision-makers, particularly at the IAD stage need to be very aware of the different cultural stigmas around mental health and how lack of knowledge of diseases may not necessarily be a sign of a non-credible witness or a non-genuine relationship.

The ‘I Love You’ Factor

Another issue that I have seen arise in the IAD is in the assessment of the types of actions which demonstrate love.

Perhaps to the archaic nature of case law in the area, the genuineness of a relationships is still defined in large part on things such as telephone records and love letters. Importantly, the relationships must be centred around love and the need for proof of the “I love you’s.”

In the modern day however, this evidence of genuineness may not always be true. Several couples use Whatsapp, Skype, or some cultural chat software (QQ, Kakao Talk, WeChat) to communicate. Many of these platforms do not allow for message histories to be effectively kept and furthermore some of the sending of media images back and forth and video chats, and conversations in foreign languages, are not readily transcrible. In one IAD refusal decision I read, the sending of media back and forth between a couple was described as “illogical.” The individual Member had likely never used Whatsapp before.

A second challenge that bogs many foreign couples (particularly older ones), I find, is the actual use of the words “I love you” in various contexts. Even in my own parent’s generation, the words I love you are rarely ever said or heard around the house. If asked why they are together or attracted to each other, I am sure my parents would come up with issues related around responsibility, similar view on household chores/economics, etc.

I think it is important to be sensitive to the way love is expressed in different cultures and not draw negative inferences based on different understandings.

Just a few thoughts on this Sunny Sunday in Chongqing, China.