TB7-03017

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 File No. / N° de dossier de la SAR : TB7-03017 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision April 26, 2017 Date de la décision Panel Deborah Morrish Tribunal Counsel for the person(s) who is(are)the subject of the appeal Hart A. Kaminker Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] The Appellant (the "Appellant"), who is a citizen of China, appeals a decision of the Refugee Protection Division (RPD) denying his claim for refugee protection. He has submitted no new evidence in support of his appeal nor is he requesting that the RAD hold an oral hearing. The Appellant asks the Refugee Appeal Division (RAD) to set aside the determination of the RPD and to either substitute its own positive determination or refer the matter back to the RPD for redetermination. DETERMINATION [2] Pursuant to Section 111(1)(c) and 111(2) of the Immigration and Refugee Protection Act (IRPA), the RAD refers this matter back to the RPD for re-determination by a differently constituted panel. This appeal is allowed. Background [3] The Appellant alleges that he joined a Christian house church in XXXX 2013. After his friend was arrested in a raid of another house church, he became concerned, went into hiding and fled China on XXXX XXXX, 2014. Furthermore, prior to leaving China, his wife became pregnant and gave birth to a second son. He alleges that family planning authorities have sent them notices that they are to be sterilized. [4] The RPD rejected the Appellant's claim for refugee protection as it found that there was some lack of credibility with respect to the Appellant's allegations and, as well, there was a lack of subjective fear given his delay in claiming. [5] On Appeal, it is submitted that a recording of the RPD hearing was not available because the recording equipment was not turned on or faulty. The lack of recording amounts to a breach of natural justice. It is further submitted that in Razm,1 the Federal Courted cited the Supreme Court decision in Canadian Union of Public Employees, Local 3012 in which it stated, "In the absence of a statutory right to a recording, courts must determine whether the record before it allows it to properly dispose of the application for appeal or review. If so, the absence of a transcript will not violate the rules of natural justice. ... in the absence of a statutory right to record a hearing, a party's right to natural justice will only be infringed where the court has an inadequate record upon which to base its decision." [6] In the case at hand, it is submitted that a number of credibility findings were made by the RPD, which could only be determined if the RAD has a proper record before it. Role of the RAD [7] The Federal Court of Appeal provides us with guidance in relation to the appropriate standard that must be applied by a specialized tribunal such as the RAD to decisions of a first-level administrative tribunal in Huruglica.3 The justices stated at paragraph 103: [103] I conclude from my statutory analysis that with respect to findings of fact (and mixed fact and law) such as the one involved here, which raised no issue of credibility of oral evidence, the RAD is to review RPD decisions applying the correctness standard. Thus, after carefully considering the RPD decision, the RAD carries out its own analysis of the record to determine whether, as submitted by the appellant, the RPD erred. Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination. No other interpretation of the relevant statutory provisions is reasonable. [8] Clearly the RAD is to conduct its own assessment of the RPD's decision and come to an independent assessment of whether the Appellant is a Convention refugee or a person in need of protection. Analysis [9] The case at hand entails findings of credibility as made by the RPD. However, in the absence of a recording of the RPD hearing, the RAD cannot carry out its own analysis of the evidence just as the Appellant is limited in pinpointing the alleged errors made by the RPD in making these credibility findings. Therefore, the lack of a recording prevents the RAD from properly disposing of the refugee claim for which the negative determination is under review. The RAD, quite simply, cannot deal adequately with the concerns raised and therefore, a new hearing before the RPD is required. To do otherwise, would result in a breach of natural justice. Conclusion [10] For the foregoing reasons, pursuant to Section 111(1)(c) of the IRPA, the RAD refers this matter back to the RPD for re-determination by a differently constituted panel. The appeal is allowed. (signed) "Deborah Morrish" Deborah Morrish April 26, 2017 Date 1 Razm v. Canada (Minister of Citizenship and Immigration), 1999 CanLII 7795. 2 Canadian Union of Public Employees, Local 301 v. Montreal (City), 1997 CanLII 386 (SCC), [1997] 1 S.C.R. 793. 3 M.C.I. v. Huruglica, Bujar (F.C.A., A-470-14), Fauthier, Webb, Newar, March 29, 2016, 2016 FCA 93. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB7-03017