Lin v. Canada ( Minister of Citizenship and Immigration )
IMM-5261-98
Evans J.
16/7/99
11 pp.
Application for judicial review of Refugee Division decision applicant, citizen of People's Republic of China, not Convention refugee on ground of well-founded fear of persecution on account of religion-Refugee Division dismissed claim on ground did not consider credible evidence applicant devout and practising Roman Catholic-Problems of adequate communication with interpreter (could not inter alia translate applicant's prayers in Chinese dialect)-Issue whether defects in interpretation so significant as to deprive applicant of reasonable opportunity to influence decision maker by presentation of evidence, right legally guaranteed by duty of fairness-Application allowed-Right to procedural fairness including right to interpreter who can communicate to tribunal what person wishes to say who is not fluent in language of hearing-On facts herein, defect in translation prejudiced applicant-Reviewing courts regularly warned not to withhold relief for breach of duty of fairness because immaterial, in sense tribunal's decision would have been same, even if procedural propriety had been observed-Dangerous for court to speculate on what might have happened if, as herein, person had not been effectively prevented from presenting piece of evidence, and because process values underpinning duty of fairness transcend merely instrumental-While relief may not be granted if, as matter of law, tribunal's decision could not have been different, it will be granted even though it may seem to reviewing court that ultimate result very likely to have been same: Cardinal v. Kent Institution, [1985] 2 S.C.R. 643-Board herein erred when it dismissed applicant's claim without first seeing whether it could obtain interpreter who could understand prayers he wanted Board to hear-This evidence both relevant to one of two bases on which Board found him to be not credible, and close to core of his claim for refugee status-If Board had found applicant's knowledge of religious practice to be at all convincing, it might have considered more sympathetically explanations he gave for discrepancy between written and oral evidence and for his prolonged non-attendance at church services in China-Other interpretative difficulties providing additional support for conclusion on effect of Board's failure to hear applicant's prayers.