MB9-05192

RAD File No. / N° de dossier de la SAR : MB9-05192 MB9-05193 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appel instruit / entendu à Date of decision January 28, 2020 Date de la décision Panel Me Michel Jobin Tribunal Counsel for the persons who are the subject of the appeal Me Jacques Despatis Conseil des personnes en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister Conseil du ministre REASONS FOR DECISION OVERVIEW [1] This is the appeal filed by XXXX XXXX XXXX and XXXX XXXX XXXX, citizens of the Republic of Djibouti, against the decision rendered by the Refugee Protection Division (RPD) on January 18, 2019, rejecting their claim for refugee protection. [2] The appellants are asking the Refugee Appeal Division (RAD) to refer the matter to the RPD for re-determination on the grounds that certain points relating to credibility, political involvement and the political context in Djibouti were not given a complete analysis. DETERMINATION [3] Having analyzed the record in its entirety, the RAD is of the opinion that a breach of procedural fairness occurred in this case. The RPD record does not contain a recording of the hearing. Given that the first-level panel's decision was based on credibility considerations, this makes it impossible for me to conduct my own analysis of the evidence. [4] The RAD allows the appeal, not on the grounds cited in the appellants' memorandum, but for technical reasons to do with the hearing, that is, the absence of an accurate record of the proceedings before the RPD. Consequently, the RAD refers the matter to the RPD for re-determination. BACKGROUND [5] In essence, the account submitted concerns XXXX XXXX XXXX, the principal appellant in this case. He states that, in XXXX 2016, he became involved in a political group called the Mouvement des Jeunes de l'Opposition [opposition youth movement], which was calling for change in Djibouti. He states that he attended meetings and took part in youth protests and that he was arrested in XXXX 2017 and brought to the police station. In addition, he alleges that he began having problems with his family because he was dating a woman of the Midgan tribe. He states that his grandfather slapped him and threatened him and that male family members (his or her family?) he did not know pursued him and beat him. He left Djibouti for the US on XXXX XXXX XXXX 2017, and arrived in Canada on October 1, 2017. He signed his Basis of Claim Form on November 20, 2017. [6] The RPD rejected the appellants' refugee protection claim on January 18, 2019. It found that they were not credible, having noted numerous contradictions between their testimony and the account and documents they submitted in support of their claim. ANALYSIS [7] Does the failure to record part-or, more significantly, all-of the RPD hearing constitute a failure to observe a principle of natural justice? [8] As noted above, the appeal memorandum makes no mention of the absence of a recording of the RPD hearing as grounds for setting aside the decision. However, in the RAD's opinion, given that the present case centres in large part on a credibility analysis, the panel cannot carry out a full, independent assessment of the record without access to the appellants' full testimony. [9] The RAD's role in reviewing appeals against RPD decisions is defined in Huruglica,1 in which the Federal Court ruled that the RAD must carry out a full assessment of all the evidence before it. [10] In addition, in Pavel,2 only a small portion of the Immigration Appeal Division (IAD) hearing had been recorded, yet the applicant's credibility was at the heart of the decision. The Federal Court remarked that, "the lack of a complete record of a witness's testimony in a case where that witness's credibility is important is of particular concern." Following his analysis of the case, Justice Norris concluded that he was unable to determine whether the IAD's credibility findings were reasonable or not because the recording was incomplete. He further concluded that this was a violation of the rules of natural justice and that a new hearing was therefore required. [11] For the reasons set out above, the RAD concludes that the absence of a recording of the RPD hearing results in a breach of procedural fairness and that a new hearing before the RPD is therefore required. [12] Moreover, the RAD is of the opinion that the full record must be available to the future decision-maker, including the initial decision rendered on January 18, 2019. REMEDY [13] In light of the foregoing, pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act,3 the RAD refers the matter to the RPD for re-determination by a differently constituted panel. [14] The appeal is allowed. (signed) Michel Jobin Me Michel Jobin January 28, 2020 Date IRB translation Original language: French 1 Canada (Citizenship and Immigration) v. Huruglica, Bujar (F.C.A., No. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93. 2 Pavel v. Canada (Citizenship and Immigration), 2018 FC 804 (CanLII). 3 Immigration and Refugee Protection Act (S.C. 2001, c. 27). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : MB9-05192 MB9-05193 RAD.25.02 (April 4, 2019) Disponible en français 2 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 4, 2019) Disponible en français