TB8-14909

RAD File / Dossier de la SAR : TB8-14909 TB8-14910 / TB8-14911 / TB8-14912 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXXXXXX XXXX XXXX Personne(s) en cause Appeal considered / heard at Toronto, ON Appel instruit / entendu à Date of decision April 4, 2019 Date de la décision Panel T. Andrews Tribunal Counsel for the person(s) who is(are) the subject of the appeal Faraz Muhammad Khan Conseil(s) (de la/des) personne(s) en cause Designated representative XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION INTRODUCTION [1] XXXX XXXX XXXX, his spouse XXXX XXXX XXXX and their children XXXX XXXX XXXX and XXXX XXXX XXXX (the Appellants), citizens of India, are appealing a decision of the Refugee Protection Division (RPD) denying their claim for refugee protection. DETERMINATION [2] This appeal is allowed. Pursuant to section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) refers the matter to the RPD for re-determination by a differently constituted panel. BACKGROUND [3] The Appellants are citizens of India, however the adult Appellants are considered non-resident Indians (NRIs), having lived and worked outside of India for the majority of their lives. Their daughters, the minor Appellants, were both born in Dubai. [4] While they lived in the United Arab Emirates, they maintained two investment properties in Mumbai and the male Appellant would travel there frequently to deal with business matters. [5] In XXXX 2014, while in Mumbai, the male Appellant began to receive threatening internet calls in which the caller demanded money. The perpetrator claimed to be connected to a well-known criminal in the area named XXXX XXXX and his gang, and was aware of the Appellants' movements both in and outside of the country. [6] The male Appellant was attacked by these individuals on XXXX XXXX XXXX 2015 and thereafter he began to comply by making payments. He made a few payments over a period of time, but the threatening calls and extortion continued whenever he was in Mumbai. When calls related to the extortion subsequently commenced in Dubai, the Appellants began to fear for their safety. They eventually decided to leave and seek refugee protection in Canada. ROLE OF THE RAD [7] In Huruglica1, the Federal Court gives guidance in regards to the role of the RAD. The RAD must conduct an independent assessment regarding whether the RPD was correct in relation to the alleged errors of law, fact or mixed fact and law. The RAD may defer to the RPD's credibility assessment of oral testimony, where the RPD had a meaningful advantage in the circumstances. [8] The correctness standard will be applied in this case unless otherwise specified. ANALYSIS OF THE EVIDENCE [9] The Appellant argues that the RPD made various errors in rejecting their claim for Refugee protection. However, the determinative issue on appeal is whether or not there was a breach of procedural fairness. Was there a breach of procedural fairness? [10] The RPD found that the Appellants are not Convention refugees or persons in need of protection as they have a viable internal flight alternative (IFA) in Kolkata. [11] The Appellants argue that Mrs. XXXX was not given an opportunity to provide testimony, despite specifically requesting to do so. Although she was not the principal claimant at the hearing, she was also a claimant who fears returning to India and was never given the chance to elaborate on her claim or her concerns. She was casually dismissed by the RPD member who declared that the hearing was concluded without asking her at any stage whether she had anything she wished to say. The Appellants argue that this was a breach of procedural fairness as she was ignored in the hearing room and not allowed to provide relevant testimony. [12] The RAD has considered the issue of whether there was a breach of procedural fairness. [13] Procedural fairness deals with a person's right to know what they must prove and their right to have a meaningful opportunity to present their case. The right to be heard is one of the primary duties of procedural fairness and generally includes the right to put forward a case including submitting evidence and making submissions. [14] A review of the hearing in its entirety confirms that the female claimant was never questioned or asked if she had anything to say. She spoke only once during the hearing while her husband testified to tell the RPD member how much XXXX XXXX Indian rupees (the extortion amount) is in Canadian dollars. At the end of the hearing, the following occurred: PRESIDING MEMBER: Okay. So your counsel has given me submissions. I am not going to make my decision just now because I want to review the evidence and the submissions. I'm going to reserve my decision, it will be forwarded to you in writing in due course after I make it, it shouldn't be too long. Thank you for coming. FEMALE CLAIMANT: Thank you. MALE CLAIMANT: Thank you. COUNSEL: Thank you. FEMALE CLAIMANT: Excuse me, like can I have a chance to say something? PRESIDING MEMBER: Well no, the hearing is concluded. FEMALE CLAIMANT: Okay. [15] While the RPD member had given his concluding statements, he had not yet gone off record and a final decision had not been rendered. When the female appellant interjected, she ought to have been given an opportunity to present her oral evidence, given that she had not done so previously. Further, the RAD notes there was ample time to hear from her as the hearing was relatively short and only 42 minutes had elapsed. The RAD finds that by not allowing the female appellant to say anything, this effectively took away her right to be heard and denied her a meaningful opportunity to participate in the process. Thus, there was a breach of procedural fairness in this case. [16] It is unknown what she would have said and what, if any impact this may have had on the outcome of the hearing or the joined claims. Further, it is incumbent upon the Board to consider all evidence as a whole and the fact that the remaining claims (the male appellant and the children) were decided without hearing from the female claimant at all is problematic. Unfortunately, the RAD is not in a position to remedy this particular issue. [17] Based on the RAD's findings above on the issue of a breach of procedural fairness, it is unnecessary to deal with the other arguments raised by the Appellants in their memorandum. CONCLUSION [18] The Appellants ask the RAD to set aside the negative determination and substitute a positive determination. However, the record before the RAD is deficient given the breach of procedural fairness that occurred in the RPD proceedings, hence the RAD is not in a position to substitute a positive decision. A hearing is required and the RAD does not have the jurisdiction to conduct one given the lack of new evidence. [19] In the alternative, the Appellants ask that the RAD refer the matter back to the RPD for redetermination by a different member. The RAD finds that this is the appropriate course of action given the breach of procedural fairness that occurred. [20] The appeal is allowed pursuant to Section 111(1)(c) of the IRPA, and the RAD refers the matter to the RPD for redetermination by a differently-constituted panel. (signed) "T. Andrews" T. Andrews April 4, 2019 Date 1 M.C.I. v. Huruglica, Bujar (F.C.A., no. A-470-14), Gauthier, Webb, Near, March 29, 2016, 2016 FCA 93, paras 70, 103. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB8-14909 TB8-14910 / TB8-14911 / TB8-14912 RAD.25.02 (September 18, 2018) 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 (September 18, 2018) Disponible en français