VB4-00562

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 : VB4-00562 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXX XXXX XXXX Personne(s) en cause the subject of the appeal Appeal considered / heard at Vancouver, BC Appel instruit à Date of decision May 29, 2014 Date de la décision Panel Philip MacAulay Tribunal Counsel for the person(s) who is(are) Tara Kyluik Conseil(s) du (de la/des) the subject of the appeal Barrister and Solicitor personne(s) 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 XXXX (the "appellant"), a national of Cameroon, appeals the January 14, 2014 determination of the Refugee Protection Division (the "RPD"), rejecting his claim for refugee protection. The claim was heard by the RPD on December 18, 2013, with a written decision being rendered on December 20, 2013. The RPD found that the appellant is neither a Convention refugee pursuant to section 96 of the Immigration Refugee Protection Act ("IRPA" or the "Act")1 nor a person in need of protection pursuant to section 97 of that Act. DETERMINATION [2] Pursuant to subsection 111(1)(c) of IRPA, the Refugee Appeal Division (the "RAD") sets aside the determination of the RPD and refers the matter to the RPD for redetermination by a differently constituted Panel. BACKGROUND [3] The appellant has different counsel before the RAD than the counsel who appeared on his behalf at the RPD. The Minister intervened at the RPD "by documents only", but has not intervened at the RAD. [4] No transcript of the proceedings before the RPD has been included in the Appellant's Record (AR).2 However, a compact disc (CD) of the RPD proceedings forms part of the RPD Record (RPDR)3 and is found at the back of that Exhibit. The primary basis for the appeal is that, in this case, the quality of the CD recording provided to the appellant is such that the appellant alleges the RPD Record is not complete and that he "is not in a position to properly contest the Panel's findings due to a lack of a proper transcript of his and his witnesses' testimony". As will be discussed further in the following, the appellant alleges that, in the result, his right to natural justice has been breached. [5] The appellant seeks to present a new document4 to the RAD pursuant to subsection 110(4) of IRPA.5 He does not seek a hearing before the RAD pursuant to subsection 110(6) of the Act. Basis of Claim [6] The appellant alleges that he is a gay man and that he has a well-founded fear of persecution for that reason in Cameroon. He also alleges he faces a risk to his life or a risk of cruel and unusual treatment or punishment in his country for that same reason. RPD Decision [7] The RPD found that appellant had established that he is a citizen of Cameroon. [8] The determinative issue in the claim was the RPD's finding that the appellant had failed to establish with sufficient credible evidence that he is a gay man. Accordingly, his claims pursuant to both section 96 and section 97 of IRPA were rejected. Given my determination that this matter is to be referred to the RPD for a redetermination, it is unnecessary to discuss in detail the particular findings made by the RPD in coming to its determination. GROUNDS OF APPEAL [9] As stated by the appellant,6 the issues on the appeal are: a) What is the applicable Standard of Review? b) Does the failure of the panel to produce a complete record of the hearing constitute a breach of natural justice in the circumstances of this case? c) Did the appellant have evidence that arose after the rejection of his claim or was not reasonably available or could not reasonably be expected to in the circumstances to have been presented by him at the time of his hearing? [10] As will be evident in the following, ground (b) above is the determinative issue in this appeal. REMEDY SOUGHT [11] The appellant seeks an order from the RAD:7 That the decision of the RPD be set aside and that the matter be referred to the RPD for redetermination, giving the directions to the RPD that it considers appropriate. STANDARD OF REVIEW [12] The appellant submits that the appropriate standard of review to be employed by the RAD with respect to alleged errors of law, mixed fact and law and law alone of the RPD is one of correctness.8 As is set out in the following, I disagree in part with this submission. [13] To my knowledge, in what is the first Federal Court review of a RAD decision regarding the appropriate standard of review to be applied by the RAD in assessing the determinations of the RPD, on May 26, 2014 Justice Shore, in Iyamuremye v. Le Ministre la Citoyennete et de L'Immigration9 confirmed that, with respect to findings of fact and of mixed fact and law, the standard of review to be applied by the RAD is reasonableness. The standard regarding matters of law is correctness. [14] There is other substantial authority for the conclusion that breaches of natural justice or a failure to adhere to principles of procedural fairness are to be treated as errors of law to which the standard of review of correctness should apply. [15] This is the case regarding an analysis by an appellate superior court on an appeal from a trial court in, for example, a negligence case.10 It is also the approach taken by a court on the judicial review of the actions of administrative tribunals.11 [16] The Federal Court of Appeal noted the following in its 2005 Sketchley decision at paragraph 53: [53] CUPE [referring to Canadian Union of Public Employees v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29], directs a court, when reviewing a decision challenged on the grounds of procedural fairness, to isolate any act or omission relevant to procedural fairness (at para. 100). This procedural fairness element is reviewed as a question of law. No deference is due. The decision-maker has either complied with the content of the duty of fairness appropriate for he particular circumstances, or has breached this duty.12 [17] An example of the application of these principles in the field of refugee protection determination is found in Marino Gonzalez13 which applied the correctness standard when the Court held that, in the circumstances of that case, the RPD failed in its duty of procedural fairness in not providing the claimant with an opportunity to respond to its concerns regarding a psychological assessment. [18] The Alberta Court of Appeal (the "Court of Appeal") in Newton14 also provides guidance in its judicial review of the decision of an appellant tribunal (The Law Enforcement Review Board) concerning a determination by a first-instance administrative officer regarding the discipline of a policeman. In this regard, the relationship of the Review Board to the decision of the administrative officer is not fundamentally dissimilar to appeals to the RAD from the RPD. In Newton, the Court stated what the case concerned: [1] This appeal concerns the basic structure and interrelationship of the tribunals in Alberta that review the conduct of police officers when that conduct is called into question in disciplinary proceedings under the Police Act, R.S.A. 2000, c. P-17. The specific issue is the extent to which the Law Enforcement Review Board may conduct a fresh hearing based on fresh evidence when an appeal is launched from the decision of a presiding officer in a disciplinary matter. [19] The Court's ultimate determination in Newton was as follows: [96] The appeal is allowed, and the decision of the Board set aside. The answers of [sic] the three questions on which leave was granted are as follows: 1. The Board did err in law by conducting a de novo hearing, and by allowing the Criminal Trial Lawyers' Association to call evidence which was called or available at the disciplinary hearing, without requiring it to meet the legal test for new evidence; 2. The Board did fail to apply the correct standard of review to the decision of the Presiding Officer; 3. The Board did err in failing to consider the exhibits tendered, including the transcript of the hearing before the Presiding Officer. [20] Accordingly, the Court of Appeal in Newton found that the application of the appropriate standard of review by an appellant tribunal concerning a determination by a first level administrative decision-maker was a matter of law, regarding which the standard of review to be applied by the appellate tribunal must be correctness. Given my earlier references to authorities establishing that a breach of natural justice or procedural unfairness are to be seen as errors in law and the conclusion that, no matter if it is an appeal from a trial court to a superior appeal court, judicial review by a court of a decision of an administrative tribunal or, in the case of Newton, an appeal from a first-instance tribunal to an appellant tribunal, I conclude that the alleged errors of law regarding a breach of natural justice or a failure of procedural fairness in this appeal are to be measured against a standard of correctness. ANALYSIS OF THE MERITS OF THE APPEAL [21] The appellant submits that the CD of the RPD proceedings is deficient in that portions of the hearing are completely inaudible and that the recording as a whole is not comprehensible. [22] The appellant alleges that, in circumstances such as in this appeal, where the credibility of the appellant and his witness were key to the RPD determination, a review of the RPD proceedings is essential in considering and/or rebutting the RPD's findings. The appellant affirms that he does not have a complete or perfect recollection of all the details of the questions asked or answers given before the RPD and that neither he nor his counsel [who was not counsel before the RPD] have been able to review that evidence. In the result, the appellant submits that he has been "irreparably prejudiced" and is unable to fully advance his case on appeal before the RAD.15 [23] In his memorandum, the appellant notes particular factual findings of the RPD that the appellant alleges arose from a misunderstanding, mischaracterization or misconstrued consideration of the evidence at the RPD and/or without properly considering other testimony.16 [24] The RAD has reviewed the CD found in the RPDR,17 as well as the one that had been provided to the appellant.18 In the assessment of the RAD, in this particular case both CDs reveal similar problems and that, indeed, portions of the recording are muddled, too quiet or otherwise deficient such that I find the CD to be inadequate for the purpose of either enabling the appellant to properly frame and substantiate the basis of his appeal or, as well as, precluding the RAD itself from fully reviewing the underlying evidence which the appellant has submitted the RPD has misunderstood, mischaracterized or misconstrued. The RAD must have access to this evidence in order to determine whether the factual conclusions drawn by the RPD are reasonable. [25] The appellant has alleged that, "the Panel's failure to provide a transcript constitutes a breach of the appellant's right to natural justice and the decision is reviewable on this basis."19 While it does not affect my ultimate finding that this matter is to be redetermined by the RPD, I do not agree with this aspect of the appellant's submission. [26] The Immigration and Refugee Board (IRB) is not obliged by law or practice to provide a full transcript of RPD proceedings. The practice of the IRB at the time of the appellant's RPD hearing was that, in cases where the claimant had received a negative determination, a CD of the RPD proceedings was sent to claimant's counsel, together with the written decision of the RPD. This is not done where the individual did not have a right to appeal to the RAD under IRPA. The difficulty which has arisen in this case is that the CD recording of the RPD proceedings is fundamentally deficient. [27] According to instructions to appellants in the Appellant's Guide and Kit and the Refugee Appeal Division Rules,20 both available to appellants on the IRB web site, appellants are to include in their AR: All or part of the transcript of the RPD hearing, if you want to use it in support of your appeal. Note that you are not required to submit a transcript. However, if you want to use one in support of your appeal, you must arrange to have it produced from the recording that was provided to you with the RPD's decision. You also need to provide a statement that the transcript is accurate, signed by the person who made it. (RAD emphasis) [28] The IRB's website also includes the following information in the section relating to the Regulatory Impact Analysis Statement: The RAD Rules require the parties, should they choose to rely on the transcript of the RPD hearing at the RAD appeal, to submit a full or partial transcript of the hearing to the RAD. It is not expected that the parties will require a transcript in every appeal. Unlike what was indicated in the RIAS accompanying the RPD Rules and RAD Rules which were pre-published in the Canada Gazette, Part I, on July 2, 2011, the IRB will not, as a practice, provide parties with a transcript of the RPD proceeding for the purposes of filing an appeal at the RAD. The RAD Rules stipulate that a party must file with the RAD a full or partial transcript of the RPD hearing, if the party wishes to rely on the transcript in the appeal. The RAD Rules do not stipulate how a party is to obtain a transcript, or who is to create the transcript. They state that the transcript must be full or partial and accompanied by a transcriber's declaration. An electronic recording of the RPD hearing will be made available to claimants and the Minister. It will therefore be for the parties to decide how they would obtain a transcript. The parties would incur monetized costs should they choose a service provider, such as a professional transcription company, to complete the transcript. A review of billing schedules by service providers indicate that transcription companies charge on average $300 to transcribe a complete RPD hearing. The total costs associated with this new process have not been quantified given that it is unknown how many parties will choose to rely on the transcript of the RPD hearing, or how the parties will go about obtaining transcripts. (RAD emphasis) [29] As noted by the appellant, the Supreme Court of Canada has found that there would be "no breach of natural justice where the decision facing the tribunal could be made on the basis of evidence established through other means. Even where the statute creates a right to a transcript, an appellant must show a serious possibility of an error on the record or an error regarding which lack of the recording deprived appellant of his or her grounds of review."21 [30] In circumstances where there was no recording at all of a portion of a RPD proceeding such that no transcript could be made available, Justice Snider of the Federal Court found in Cletus:22 [21] The Applicant submits that the unavailability of a transcript of the refugee hearing constitutes a denial of natural justice and that, therefore, a new hearing should be ordered (See Toledo v. Canada (Minister of Citizenship and Immigration), 2005 FC 1572, (2005) 51 Imm. L.R. (3d) 287, Ngugi v. Canada(Minister of Citizenship and Immigration), 2004 FC 432, [2004] F.C.J. No. 532 (QL), Ortiz v. Canada(Minister of Citizenship and Immigration), 2005 FC 346, [2005] F.C.J. No. 442 (QL)). Without a record of the transcript, the Applicant argues that this Court cannot determine whether the Board's credibility findings were supported by the evidence in the record. [22] I begin with the words of Justice Pratte in Kandiah v. Minister of Citizenship and Immigration (1992), 141 N.R. 232 (F.C.A.), where he stated that, "An otherwise fair hearing does not become unfair because it is not recorded; in other words, a verbatim record of the proceedings is not a condition precedent to a good trial and a good judgment". [23] Justice L'heureux-Dubé cited this case with approval in Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793 at para. 81, and went on to state that: 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. Where the statute does mandate a recording, however, natural justice may require a transcript. As such a recording need not be perfect to ensure the fairness of the proceedings, defects or gaps in the transcript must be shown to raise a "serious possibility" of the denial of a ground of appeal or review before a new hearing will be ordered. These principles ensure the fairness of the administrative decision-making process while recognizing the need for flexibility in applying these concepts in the administrative context. [24] In my view, this Court can properly dispose of the application for judicial review in spite of the unavailability of the transcript. The Applicant made his claim for refugee protection based primarily on his claim that, as a member of MASSOB, he faced a risk of persecution. His claim was largely predicated on the strength of his own evidence, as presented in his written and oral testimony. Much of this evidence was repeated in his sworn affidavit. In the written decision, the Board summarized the evidence that was before it and addressed the elements of the Applicant's claim, making specific references to omissions and contradictions which led it to question the Applicant's credibility. The omissions and contradictions raised by the Board are sufficiently documented in the Board's decision, the Applicant's affidavit and the written submissions of counsel for both sides. [25] More importantly, the Board noted in its decision that, even if it accepted the Applicant's version of events, there was still insufficient evidence to show that he faced more than a mere possibility of persecution if he were returned to Nigeria. In coming to this conclusion, the Board relied on findings of fact which it made based on the country reports and the Applicant's own submissions. It is important to note that the Applicant did not take issue with any of these findings of fact in this judicial review. [26] Taken altogether, I am satisfied that there is, before me, a record of what the Board considered in reaching its final conclusion and that that record is sufficient for the purposes of this judicial review. [31] Unlike the situation in Cletus, I find that, in the absence of a usable recording of the RPD proceedings, there is not sufficient additional evidence which might be referred to in order to adequately assess the credibility conclusions upon which the RPD decision was determined, as challenged by the appellant. I find as well that there is a "serious possibility" that this same deficiency denies the appellant procedural fairness in pursuing his appeal. [32] In coming to these conclusions, I make no comment whatever on the reasonability of the RPD decision. It is to be emphasized that the result in this appeal concerns the situation arising after the RPD decision was made and is not directly tied to the RPD process or the RPD Member. It is the lack of procedural fairness or the breach of natural justice arising from the fact that the CD is defective that has led to my determination. It is for that reason the matter must be referred back to the RPD. [33] In addition, inasmuch as there will be a redetermination at the RPD, it is not necessary for me to determine whether or not the document sought to be presented to the RPD under subsection 110(4) meets the criteria set out in the Act. The document can be presented at the redetermination. REMEDY [34] For the reasons and in the circumstances noted above, it would not be possible for the RAD to either confirm or, alternatively, set aside the RPD decision and substitute its own determination, given the flaw in the RPD Record regarding testimony. Subsection 111(2)(b) of the Act provides: 111(2) The Refugee Appeal Division may make the referral described in paragraph (1)(c) only if it is of the opinion that (a) the decision of the Refugee Protection Division is wrong in law, in fact or in mixed law and fact; and (b) it cannot make a decision under paragraph 111(1)(a) or (b) without hearing evidence that was presented to the Refugee Protection Division. [35] In this case, if the RAD were to attempt to substitute its decision for that of the RPD, it would be necessary for the RAD to hear the entirety of the evidence presented to the RPD. Accordingly, a referral for redetermination is the appropriate remedy. No directions are given to the RPD. CONCLUSION [36] For all of the foregoing reasons, the RAD orders that the matter of the refugee protection claim of XXXX XXXX XXXX is referred to the RPD for redetermination by a differently constituted panel. The appeal is allowed. (signed) "Philip MacAulay" Philip MacAulay May 29, 2014 Date 1 Immigration Refugee Protection Act S.C., 2001, c. 27. 2 Refugee Appeal Division (RAD) Exhibit 2, Appellant's Record (AR). 3 RAD Exhibit 3, Refugee Protection Division Record (RPDR). 4 RAD Exhibit 2, AR, pp. 15-16. 5 RAD Exhibit 2, AR, pp. 12-13 and pp. 47-48. 6 RAD Exhibit 2, AR, pp. 38-39. 7 RAD Exhibit 2, AR, p. 48. 8 RAD Exhibit 2, AR, pp. 40-41. 9 Iyamuremye c. Canada (Citoyenneté et Immigration), 2014 CF 494. 10 Housen v. Nikolalsen, 2002 SCC 33. 11 Dumsmuir v. Brunswick, 2008 SCC 9. 12 Canada (Attorney General) v. Sketchley, 2005 FCA 404. 13 Marino Gonzalez v. Canada (Citizenship and Immigration), 2011 FC 389. 14 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399 15 RAD Exhibit 2, AR, appellant's affidavit, pp. 13-14, paras. 29-31 and appellant's memorandum, pp. 41-46. 16 In particular see RAD Exhibit 2, AR, pp. 42-45. 17 RAD Exhibit 3, RPDR, included CD. 18 RAD Exhibit 2, AR, Exhibit E to the appellant's affidavit which exhibit is found between pages 36 and 37. 19 RAD Exhibit 2, AR, p. 41, para. 9. 20 Refugee Appeal Division Rules, SOR/2012-257. 21 Canadian Union of Public Employees, Local 301 v. Montréal (City), [1997] 1 S.C.R. 793 cited at RAD Exhibit 2, AR, p. 41. 22 Cletus v. Canada (Minister of Citizenship and Immigration), 2008 FC 1378. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB4-00562