TB9-33003

RAD File / Dossier de la SAR : TB9-33003 TB9-33004 / TB9-33005 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montreal, QC Appel instruit / entendu à Date of decision February 4, 2020 Date de la décision Panel Zofia Przybytkowski Tribunal Counsel for the persons who are the subject of the appeal John A Salam Conseil des personnes en cause Designated representative XXXX XXXX XXXX XXXX Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I allow this appeal, and return the file to the RPD. The Appellant, XXXX XXXX XXXX XXXX and her children, XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX XXXX are citizens of Egypt. a. The Appellant claims that she fears persecution in her country due to her conversion to Christianity. She says she also fears her abusive husband, who also abused her children. b. The Refugee Protection Division (RPD) rejected the Appellants' refugee claim. The RPD found that the Appellant's testimony lacked credibility. c. The Appellants challenge the RPD's decision with several arguments. They also request to submit two new documents as evidence. I will not examine these arguments and evidence. My reasons are as follows. d. I find that there is a breach of procedural fairness in the present case, due to the fact that the RPD record contains a faulty recording of the RPD's hearing. A substantial amount of the Appellant's testimony was not audibly recorded. DECISION [2] The appeal is allowed. I send this matter back to the RPD to be redetermined by a different Board Member. I find that the faulty recording prevents me from rendering a fair decision in this case, based on the totality of the RPD record. ANALYSIS [3] My review of the RPD record, and the appeal record in this case, reveals that it includes a faulty, and therefore partial, recording of the Appellant's testimony. The voices of the Board Member, the Minister's representative and the Appellant's counsel are clearly audible, but the Appellant's voice is barely audible. In addition, there is feedback on the recording. It appears, based on the Board Member's introductory remarks, that the Appellant had a microphone in front of her. Unfortunately, it appears that that microphone was not functional, since the Appellant's voice appears to be captured only by the other microphones in the room. However, this is not sufficient for her testimony to be audible. [4] I have considered whether the incomplete recording has deprived the Appellant of her right to present her case fairly to the Refugee Appeal Division (RAD). [5] There is no statutory provision that requires the RPD to record its proceedings, although it is standard practice for it to do so. [6] When there exists no statutory right to a recording, the Supreme Court of Canada has said that a "court 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."1 [7] In this case, the determinative issue identified by the RPD was the credibility of the Appellant's claim. The RPD questioned the Appellant extensively and drew conclusions about the answers she provided. The inadequate recording of the Appellant's testimony substantially interferes with my ability to conduct an independent assessment of the record and decide on the appeal. I cannot evaluate the Appellant's answers to the RPD's questions, and whether she has adequately responded to the RPD's credibility concerns. [8] The Federal Court has already reversed a decision from the Immigration Appeal Division (IAD), another Division of this Board, in a similar case. The Court could not determine whether the IAD's credibility findings were reasonable, because the recording of the hearing was incomplete. The Court found that this resulted in a breach of natural justice, and made the following comments: "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."2 CONCLUSION [9] I find that the inadequate audio recording of the RPD hearing has resulted in a substantial breach of procedural fairness and that this breach is determinative of the appeal. [10] The appeal is allowed. I send this matter back to the RPD to be redetermined by a different Board Member. Zofia Przybytkowski Zofia Przybytkowski February 4, 2020 Date ZP/lp 1 Canadian Union of Public Employees, Local 301 v Montréal (City),1997 CanLII 386 (SCC), paras 81, 83. 2 Pavel v Canada (Citizenship and Immigration) 2018 FC 804, para. 58. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : TB9-33003 TB9-33004 / TB9-33005 RAD.25.02 (January, 2020) 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 (January, 2020) Disponible en français