Background
Abdul Samad Kandahari, a citizen of Afghanistan, applied for permanent residence in Canada under a public policy for extended family members of interpreters who had assisted the Canadian government. His application was refused by a resettlement officer at the Canadian High Commission in Islamabad, Pakistan. The refusal was based on the officer’s finding that Mr. Kandahari’s answers during an admissibility interview were contradictory and untruthful.
The key issue at the interview was a language barrier. Mr. Kandahari’s native language is Pashto. However, the interview was conducted in Dari, as the provided interpreter only spoke Dari. Mr. Kandahari stated in a sworn affidavit that he could speak “a little Dari” but could not express himself well and had difficulty understanding it fully. He claimed he did not know he could object or ask for a Pashto-speaking interpreter. He later identified numerous specific instances where his answers were allegedly mistranslated, leading to the credibility findings against him.
The Court’s Holding
The Federal Court allowed Mr. Kandahari’s application for judicial review, ruling that the interview process was procedurally unfair. The court remitted the matter to a different resettlement officer for redetermination. The judge accepted Mr. Kandahari’s sworn affidavit detailing the interpretation problems, noting that the government’s lawyer (the Minister’s counsel) declined the opportunity to cross-examine him on his evidence. Following precedent, the court accepted the applicant’s unchallenged account of the facts.
Conversely, the court rejected the Minister’s attempt to rely on the officer’s notes in the Global Case Management System (GCMS) to prove what happened in the interview. The court cited recent Federal Court of Appeal case law holding that such notes are not admissible for the truth of their contents in this context, as an officer may be motivated to record the interview in a way that supports their decision. Without a supporting affidavit from the officer, the notes could not be used to contradict the applicant’s sworn testimony. The judge found the translation errors were consequential and had resulted in a breach of procedural fairness.
Key Takeaways
- An immigration applicant’s right to procedural fairness includes a right to “continuous, precise, competent, impartial and contemporaneous” interpretation.
- Where the government fails to cross-examine an applicant on their sworn affidavit, a court may accept the applicant’s unchallenged evidence as fact.
- An immigration officer’s notes (e.g., GCMS notes) are not automatically admissible for the truth of their contents in a judicial review; to rely on them as evidence of what was said, the government may need to submit a supporting affidavit from the officer.
- A breach of the right to proper interpretation does not require the applicant to prove actual prejudice, so long as the interpretation errors were consequential to the decision.
Why It Matters
This decision reinforces the high standard of procedural fairness owed to applicants in Canadian immigration proceedings. It underscores that the right to an interpreter is not a mere formality; providing an interpreter who speaks a different dialect that the applicant cannot fully understand can breach this right and render the proceeding unfair. The case serves as a strong statement that the duty of fairness requires ensuring genuine and accurate communication.
The ruling also highlights a crucial evidentiary point in judicial review applications. It affirms that the government cannot simply rely on its internal administrative records as a factual rebuttal to an applicant’s sworn evidence. By requiring a higher standard, such as a responding affidavit from the decision-maker, the court ensures that factual disputes are addressed through formal evidence, promoting accountability and fairness in the litigation process.