TB8-09937

RAD File / Dossier de la SAR : TB8-09937 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX (a.k.a. XXXX XXXX XXXX) Personne en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision April 25, 2019 Date de la décision Panel M. Lee Tribunal Counsel for the person who is the subject of the appeal Osasenaga Obazee Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXX XXXX, the Appellant, a citizen of Nigeria, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. [2] The Appellant asks the Refugee Appeal Division (RAD) to find him to be a Convention refugee or a person in need of protection. In the alternative, the Appellant asks that the matter be referred back to a different member of the Refugee Protection Division for re-determination. DETERMINATION [3] In accordance with paragraph 111(1)(c) of the Immigration and Refugee Protection Act (IRPA),1 the RAD allows the appeal and the claim will be referred back to the Refugee Protection Division for re-determination. BACKGROUND [4] The Appellant alleges to be a bisexual man who fears persecution from Nigeria because of his sexual orientation. The Appellant and his family came to Canada in XXXX 2016. They made their refugee claims together in July 2016. [5] Their refugee claims were rejected by the initial RPD panel on September 16, 2016 due to credibility concerns regarding the Appellant's sexual orientation. The Appellant and his family members appealed the decision to the RAD. The RAD allowed the appeal of the Appellant in its decision on March 22, 2017, and dismissed the appeals of the Appellant's family members. [6] The Appellant's second refugee claim hearing was held on March 6, 2018 before a differently constituted RPD panel. The second RPD panel rejected the Appellant's claim on April 5, 2018 as it found that the Appellant was not credible with regards to his sexual orientation. [7] The RAD considered the second appeal of the Appellant's refugee claim in its decision below. Role of the RAD [8] According to the Federal Court of Appeal's ruling in Huruglica,2 the RAD will review decisions of the RPD on a standard of correctness after conducting an independent analysis of the evidence. [9] The RAD will defer to certain findings of the RPD where the RPD enjoys a meaningful advantage in assessing the oral evidence at the hearing. ANALYSIS Remedy sought by the Appellant [10] The Appellant is not making an application under section 110(4) of the IRPA to admit new evidence. The Appellant is also not requesting an oral hearing from the RAD. [11] The Appellant is seeking for the appeal to be allowed and for the RAD to substitute a positive decision or else to send the decision back to the RPD for re-determination before a differently constituted panel. Whether the RAD can assess the merits of the claim with an incomplete oral record [12] The RAD finds that it cannot assess the appeal properly without hearing the entire oral record. To do so would be prejudicial to the Appellant. A portion of the oral record is missing and the RAD is unable to review the Appellant's testimony during counsel's questions and submissions.3 The RAD agrees with the Appellant that it would be in the interest of procedural fairness to refer the matter back to the RPD for re-determination. [13] The Appellant was given an opportunity to provide submissions on the missing oral record.4 The Appellant submits that he would be denied natural justice and procedural fairness in the absence of a complete oral recording of the RPD hearing. [14] The RAD listened to the entire oral record of the hearing. The RAD was able to review the portion of the record with the RPD's questions and the Appellant's oral testimony. It is evident that the recording was left running during the mid-hearing break. After the break, the record is mistakenly turned off.5 Consequently, the RAD was unable to review the oral record with counsel's questions and submissions, and any remaining questions that the RPD may have had. [15] As the RAD is unable to fully assess the claim, it is not in a position to substitute a positive decision with the existing evidence. The RAD finds that it is in the interests of natural justice to refer the matter back to the RPD for re-determination. CONCLUSION [16] The RAD allows the appeal, pursuant to section 111(1)(c) of IRPA, and refers the matter to the Refugee Protection Division for re-determination. (signed) "M. Lee" M. Lee April 25, 2019 Date 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27, as amended. 2 Canada (Citizenship and Immigration) v. Huruglica, [2016] 4 FCR 157, 2016 FCA 93, at para. 78. 3 RPD Hearing Recording, at 1:41:32. 4 Exhibit P-3, Appellant's submissions on incomplete oral record, March 22, 2019. 5 RPD Hearing Recording, at 1:41:32. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-09937 RAD.25.02 (April 04, 2018) Disponible en français 4 Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD.25.02 (April 04, 2018) Disponible en français