VB9-08631

RAD File / Dossier de la SAR : VB9-08631 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Vancouver, BC Appel instruit / entendu à Date of decision December 14, 2020 Date de la décision Panel Douglas Fortney Tribunal Counsel for the person who is the subject of the appeal Karen Klouth Conseil de la personne en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] I allow this appeal. XXXX XXXX XXXX XXXX (Appellant), a citizen of Honduras, appealed a notice of decision of the Refugee Protection Division (RPD) dated October 21, 2019, denying her claim for refugee protection. The RPD found the determinative issue in the claims is that the Appellant did not have a nexus to the Convention1 grounds of refugee protection and that that she had not established that she faced a personalized risk of persecution or serious bodily harm. [2] On appeal, it is submitted that the RPD member breached procedural fairness and erred in his nexus and generalized risk findings. [3] I find that the determinative issue in this appeal is the breach of procedural fairness suffered by the Appellant. [4] The appeal is allowed. I send this matter back to the RPD to be redetermined. BACKGROUND [5] The Appellant alleged that on XXXX XXXX XXXX 2018 she was a victim of an "express"2 kidnapping in La Ceiba, Honduras. When leaving the university and going to her car, she was kidnapped by three men who affiliated themselves with the Mara Saluatrucha (MS-13 criminal gang). Her kidnappers held her until her release five days later after her father was able to pay ransom of about $XXXX (Canadian dollars). [6] After her return, the Appellant and her father received additional cell phone calls threatening her life unless an additional $XXXX was paid by XXXX XXXX XXXX 2018. The Appellant fled to her cousins' home in XXXX XXXX. The Appellant filed a police report on XXXX XXXX XXXX 2018, one day before fleeing to Canada the following day to make her claim for refugee protection. NEW EVIDENCE [7] The Appellant has not submitted new evidence in this appeal. [8] The Appellant has not requested an oral hearing. Under section 110(6) of the Immigration and Refugee Protection Act,3 the Refugee Appeal Division (RAD) can only consider ordering a hearing when new evidence has been accepted and that new evidence raises a serious issue with respect to credibility. This appeal will therefore proceed without an oral hearing. ANALYSIS [9] My role is to look at all the evidence and decide if the RPD made the correct decision.4 [10] The Appellant submits that there is a reasonable apprehension of bias and breach of natural justice and fairness as the RPD Member issued his oral decision immediately after Counsel produced submissions without conducting any examination of the Appellant. [11] At the beginning of the hearing, Counsel made an oral application for adjournment in order to accommodate an appointment with a XXXX to provide a XXXX review. The RPD Member denied the application but did consider the Appellant as a vulnerable claimant and put in place procedural accommodation such as reversing the order of examination to allow Counsel to question the Appellant first. [12] While Counsel does not contest the fact that prior to the hearing the Immigration and Refugee Board had the opportunity to prepare by reviewing the record, Counsel submits that the RPD Member had pre-drafted his decision before the hearing even started, leading to is a reasonable apprehension of bias and breach of natural justice in the appealed decision. [13] As part of my independent assessment of the evidence in this matter I have examined the audio recording of the RPD hearing. There appears to have been one break for an undefined period of time while Counsel was questioning the Appellant. The duration of this break can not be determined as there is no time stamp on the recording and there is no verbal indication of how long the break was to be. After this break, Counsel continued her questioning. After Counsel had completed her questioning, the RPD Member immediately asked for submissions without questioning the Appellant or further comment. After submissions were made, the RPD Member took a 10-minute break and then delivered his oral reasons denying the Appellant's claim. [14] The Federal Court of Canada has emphasized that in making decisions the RPD "must not have the appearance of having already decided the case before hearing all the evidence" as such "actions tarnish the integrity of the system" and criticizes such practices as giving rise to "a clear appearance of lack of fairness from the panel." 5 [15] While Counsel submits that the RPD Member had pre-drafted his decision before the hearing even started, I have considered one possible alternative explanation: that the RPD began to prepare its reasons for decision during the first recess in the proceedings, and then completed his reasons during the 10 minute break following Counsel's submissions. However, I cannot determine if the combined duration of both recesses was long enough for the RPD to have fully considered all of the evidence. [16] I also note that it is unusual that the RPD Member would have no questions of the Appellant. For example, she alleged in her Basis of Claim Form that one of her kidnappers had started touching her inappropriately while in captivity. Further examination of this allegation could have been relevant in determining the nexus and gender element of her claim. [17] I find, on the balance of probabilities that there was not enough time between the start of the second recess and the end of the hearing for the RPD Member to have fully considered all the evidence before him. Given these circumstances surrounding the RPD's making of its decision, I find that there is a reasonable apprehension of bias arising from the appearance that the RPD in this case had determined the matter before having had the opportunity to examine the Appellant and fully consider all of the evidence received during the oral portion of the proceedings. [18] This reasonable apprehension of bias is enough to vitiate the RPD's decision. Whether or not the RPD Panel in this case was consciously aware of his bias or not, and even if he was not biased, I find that a reasonable, informed person looking fairly at all of the facts, would conclude that the member had not decided this claim fairly. [19] The proper remedy in this case is to return the matter to the RPD for redetermination by a different member. DIRECTION [20] Given the breach of procedural fairness that informed the RPD's decision, I direct that the RPD's decision should be struck from the record of these proceedings. CONCLUSION [21] The appeal is allowed. I send this matter back to the RPD to be redetermined. (signed) Douglas Fortney Douglas Fortney December 14, 2020 Date 1 1951 Convention Relating to the Status of Refugees: Office of the United Nations High Commissioner for Refugees, "Handbook on Procedures and Criteria for Determining Refugee Status", under the 1951 Convention. 2 Exhibit RPD-1, RPD Record, at p. 3. 3 Immigration and Refugee Protection Act (IRPA), S.C. 2001, c. 27, section 110(6). 4 Canada (Citizenship and Immigration) v. Huruglica, 2016 FCA 93; Rozas del Solar v. Canada (Citizenship and Immigration), 2018 FC 1145. 5 Agastra v. Canada (Minister of Citizenship and Immigration), (2009) 179 FTR 316 at para. 10 (Blais J), cited in Sheferaw v Canada (Citizenship and Immigration), 2009 FC 246 at para. 7. --------------- ------------------------------------------------------------ RAD File / Dossier de la SAR : VB9-08631 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