Mohammadian v. Canada

Mohammadian v. Canada (Minister of Citizenship and Immigration), [2001] 4 FCR 85, 2001 FCA 191 (CanLII)

• Appeal of a negative JR of a negative RPD decision
• Test for waiver of s. 14 right to an interpreter is at issue here
• Section 14 of the Charter states: A party or witness in any proceedings who does not understand or speak the language in which the proceedings are conducted or who is deaf has the right to the assistance of an interpreter.
• This was the hearing of an Iranian Kurd which was heard on three separate sittings. In the first setting the IRB provided a Turkish Kurd interpreter and the hearing was adjourned because the claimant and interpreter could not understand each other. At the second hearing an Iranian Kurd interpreter was present and there were no issues. At the third hearing there was an Iraqi Kurd interpreter. Although no objection was raised at the hearing, the applicant raises procedural fairness concerns re: the quality of interpretation at this judicial review application

• Court held that he effectively waived his s. 14 rights by failing to raise quality of interpretation as an issue during the hearing.

• Court asked the following questions: Does the SCC’s analysis in R. v. Tran in relation to the application of section 14 of the Charter to criminal proceedings apply to proceedings before the refugee board, and in particular:

o 1– Must the interpretation provided to applicants be continuous, precise, competent, impartial and contemporaneous?
o 2– Must applicants show that they have suffered actual prejudice as a result of a breach of the standard of interpretation before the Court can interfere with the [RPD’s] decision?
o 3– Where it is reasonable to expect an applicant to do so, such as when an applicant has difficulty understanding the interpreter, must the applicant object to the quality of interpretation before the [RPD] as a condition of being able to raise the quality of interpretation as a ground of judicial review?

• The analysis developed in R. v. Tran generally applies to a proceeding before the Refugee Division. The questions should be answered as follows: (1) Yes; (2) No; and (3) Yes.

Mohammadian in other case-law:
• Nekoie v. Canada (Citizenship and Immigration), 2012 FC 363 (CanLII), <>

o [19] The issue of adequate language interpretation at the hearing is a question of procedural fairness (Mohammadian v Canada (Minister of Citizenship and Immigration), 2001 FCA 191 (CanLII), [2001] 4 FC 85) and should be reviewed under the correctness standard.

Benitez v. Canada (Minister of Citizenship and Immigration), [2007] 1 FCR 107, 2006 FC 461 (CanLII), <>

o This case applies the logic from Mohammadian to violations of natural justice / apprehension of bias in general
o [219] The rationale for why an applicant must raise a violation of natural justice or apprehension of bias at the earliest practical opportunity was articulated by Justice Pelletier (as he was then) in Mohammadian v. Canada (Minister of Citizenship and Immigration), 2000 CanLII 17118 (FC), [2000] 3 F.C. 371 (T.D), affd 2001 FCA 191 (CanLII), [2001] 4 F.C. 85 (C.A.), where he stated at paragraph 25:
There is a powerful argument in favour of such a requirement arising from judicial economy. If applicants are permitted to obtain judicial review of adverse decisions by remaining silent in the face of known problems of interpretation, they will remain silent. This will result in a duplication of hearings. It seems a better policy to provide an incentive to make the original hearing as fair as possible and to avoid repetitious proceedings. Applicants should be required to complain at the first opportunity when it is reasonable to expect them to do so.
Justice Pelletier went on to say at paragraph 26 “[t]he crucial element is the reasonableness of the expectation that the claimant complain at the first opportunity.”

Singh v. Canada (Citizenship and Immigration), 2007 FC 62 (CanLII), <>

o [48] Likewise, in Mohammadian v. Canada (Minister of Citizenship and Immigration), 2001 FCA 191 (CanLII), [2001] F.C.J. No. 916 (QL), The Federal Court of Appeal ruled that the applicant’s failure to invoke problems with the interpretation before an administrative tribunal constitutes a waiver of the right to object later:
[19] . . . In my view, therefore, Pelletier J. did not err in determining that the appellant had waived his right under section 14 of the Charter by failing to object to the quality of the interpretation at the first opportunity during the hearing into his claim for refugee status.