MB7-04210

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 : MB7-04210 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered at Montreal, Quebec Appel instruit à Date of decision September 17, 2018 Date de la décision Panel Me Patricia O'Connor Tribunal Counsel for the person who is the subject of the appeal Me Jacques Beauchemin Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION I. INTRODUCTION [1] XXXX XXXX XXXX, a citizen of Lebanon, appeals a decision of the Refugee Protection Division (RPD) rendered on March 13, 2017, rejecting his claim for refugee protection. [2] The Appellant does not request to submit new evidence in support of his appeal nor does he request a hearing before the Refugee Appeal Division (RAD). [3] The Appellant requests that the Refugee Appeal Division (RAD) set aside the determination of the RPD and find him to be a "Convention refugee" according to section 96 of the Immigration and Refugee Protection Act (IRPA) or a "person in need of protection" according to section 97. [4] I find that there is a breach of procedural fairness in the present case, owing to the fact that the RPD record contains only a partial recording of the RPD hearing. Given that a substantial part of the Appellant's testimony is not recorded, the RAD is unable to conduct an independent analysis of the evidence pertaining to central aspects of the case. II. DETERMINATION [5] Pursuant to s. 111(1)(c) of the IRPA, I refer the matter to the RPD for re-determination by a differently constituted panel. The appeal is allowed. III. BACKGROUND AND OVERVIEW [6] The Appellant is a Sunni Muslim from Beirut. In his Basis of Claim (BOC) form, he states that he fears members of the group Saraya Al Moqawa, Hezbollah and the Amal Movement. The Appellant describes that he was first assaulted by members of the Amal Movement in 2011 when he was a student because he is Sunni. In the same year, he was approached by the Resistance Brigade known as Saraya Al Moqawama, who wanted to recruit him to join their organization. When the Appellant refused to join, he was obliged to give them money. [7] The Appellant's BOC states that the Appellant's motorcycle was stolen in 2014. When making inquiries about the theft, he was directed to members of Saraya Al Moqawama who said that since he is not a member of their group, he is not protected. The same group later threatened the Appellant if he tried to increase the cost of a rental property that he owns. [8] The BOC also describes that in 2015, three armed men presented at the Appellant's home and the Appellant declined their request to join their organization. In 2016, four armed men forcibly entered the Appellant's home and proceeded to assault the Appellant and his father-in-law. The assailants stole money and belongings from the home and cursed Sunni Muslims. Following this last incident, the Appellant's BOC states that he decided to flee Lebanon. He arrived in Canada in October 2016 and made his refugee claim in November 2016. [9] On March 13, 2017, the RPD rejected the Appellant's refugee claim. The panel member found the Appellant's evidence lacked credibility based on discrepancies and omissions in his evidence and considered that he could avail himself of an internal flight alternative (IFA) in Tripoli. IV. DETERMINATIVE ISSUE [10] I find the determinative issue on appeal is whether there is a breach of procedural fairness resulting in a substantial wrong, as a result of the incomplete recording of the RPD hearing. V. SCOPE OF THE RAD APPEAL [11] In Huruglica,1 the Federal Court of Appeal held that after considering the RPD decision, the RAD is to carry out its own analysis of the record to determine whether, as submitted by the Appellant, the RPD erred. The role of the RAD is to intervene when the RPD is wrong in law, in fact or in mixed fact and law, in cases which raise no issue with respect to the credibility of oral evidence. In such cases, the RAD is to apply the correctness standard of review.2 Deference may be required when the RPD enjoys a meaningful advantage assessing the credibility of oral evidence.3 [12] As noted above, I consider that the determinative issue on appeal concerns procedural fairness and natural justice. These issues are questions of law to be determined on a standard of correctness.4 VI. ANALYSIS [13] My review of the appeal record in the present case reveals that it includes only a partial audio recording of the RPD hearing. To be clear, the audio recording does not contain any questioning by the RPD panel member to the Appellant. Rather, the audio recording only contains the Appellant's response to select questions posed by his counsel after the RPD had finished asking questions. [14] I have considered whether the incomplete recording has deprived the Appellant of his right to present his case fairly to the RAD. [15] There is no statutory provision that requires the RPD to record its proceedings, although it is standard practice for it to do so. [16] When there exists no statutory right to a recording, the Supreme Court of Canada has held that "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. [...] A party's rights to natural justice will only be infringed where the court has an inadequate record upon which to base its decision."5 [17] Turning to the present case, the Appellant challenges the adverse credibility findings and IFA finding reached by the RPD. The RPD hearing is an inquisitorial process. This means that the panel member canvassed the issues of credibility and IFA by questioning the Appellant directly. However, a substantial portion of the Appellant's testimony, including all the questions posed by the RPD, is not recorded. The inadequate recording of the RPD hearing substantially interferes with my ability to conduct an independent analysis of the record in order to make a determination on the appeal. [18] In Pavel,6 a recent appeal to the Federal Court from the Immigration Appeal Division (IAD), the Federal Court held that it could not determine whether the IAD's credibility findings were reasonable, given that the audio recording of the hearing was substantially incomplete. Norris, J. held that the lack of recording resulted in a breach of natural justice since it deprived the applicant of a ground of review which is central to the claim. I endorse the following comments made by Justice Norris: "That there must be a new hearing is regrettable for many reasons. The time, effort and resources expended in the first IAD appeal have been thrown away. Further delay will prolong the uncertainty concerning the applicant's status in Canada. The result of the new hearing may very well be the same as before. However, the rules of natural justice require nothing less."7 VII. REMEDY [19] I have concluded that the incomplete audio recording of the RPD hearing has resulted in a substantial breach of procedural fairness and that this breach is determinative of the appeal. [20] Therefore, exercising my discretion under ss. 111(1)(c) of the IRPA, I refer the matter back to the RPD for a new hearing by a differently constituted panel who shall proceed with the re-determination of the case. [21] The appeal is allowed. Patricia O'Connor Me Patricia O'Connor September 17, 2018 Date PO/dd 1 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93 (CanLII) [Huruglica]. 2 Ibid., paras. 78, 103. 3 Ibid., paras 58, 59 and 70. Three member panel RAD decision TB6-03419, May 17, 2017, as amended May 23, 2017, paras 70, 71, 116(b). [RAD panel decision]; X(Re), 2017 CanLII 33034 (CA IRB). 4 Akinmayowa v Minister of Citizenship and Immigration, 2011 FC 171, para. 17. 5 Canadian Union of Public Employees, Local 301 v Montréal (City),1997 CanLII 386 (SCC), paras 81, 83. 6 Pavel v Canada (Citizenship and Immigration) 2018 FC 804 (CanLII). 7 Ibid, para. 58. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / N° de dossier de la SAR : MB7-04210 6