MB8-26354

RAD File No. / No de dossier de la SAR : MB8-26354 MB8-26355 / MB8-26356 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Persons who are the subject of the appeal XXXX XXXX XXXX XXXXXXXX XXXX XXXX XXXX XXXXXXXX XXXX XXXX Personnes en cause Appeal considered / heard at Montréal, Quebec Appeal instruit / entendu à Date of decision December 20, 2019 Date de la décision Panel Me Jolyane Lefebvre Tribunal Counsel for the persons who are the subject of the appeal Me Cristian Roa-Riveros Conseil des personnes en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION OVERVIEW [1] The appellants, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX and XXXX XXXX XXXX, citizens of Mexico, are appealing the decision of the Refugee Protection Division (RPD), which rejected their refugee protection claims. [2] After analyzing the record as a whole, I am of the opinion that a breach of procedural fairness occurred in this case. The RPD record does not contain the recording of the RPD hearing. It is therefore impossible for me to proceed with an independent analysis of the evidence. [3] The Refugee Appeal Division (RAD) allows the appeal and refers the matter to the RPD for re-determination by a differently constituted panel. BACKGROUND [4] The appellants allege that the appellant Rodrigo was harassed by a boy and was struck with a knife six times on March 8, 2015. On March 12, 2015, after spending four days in the hospital, the male appellant and his mother allegedly went to stay with the principal appellant's aunt because they were afraid to return to their home. [5] In June 2015, the principal appellant and her son went to the authorities to file a complaint. [6] In December 2016, the appellant XXXX was working as a XXXX XXXX. He allegedly witnessed the arrest of a drug dealer at his workplace. Following that event, he reportedly heard rumours that he had reported the individual to the police and that people wanted to kill him. He apparently told the police about these rumours. [7] On December 30, 2016, XXXX was at his cousin's home. An individual allegedly came to the door and asked to see him. The male appellant's cousin reportedly went to the door and was killed. [8] Fearing for their lives, the appellants left Mexico City for Tultitlan on XXXX XXXX XXXX 2017. [9] On November 14, 2018, the RPD rejected the appellants' refugee protection claims. It did not attach any credibility to the appellants' refugee protection claims and it was of the opinion that an internal flight alternative was available to them. ANALYSIS Does the failure to record the Refugee Protection Division hearing constitute a failure to observe a principle of natural justice? [10] After reviewing the record, I note that it does not contain the recording of the RPD hearing. The RAD consulted the Immigration and Refugee Board of Canada's recording unit. The person in charge of recordings informed the RAD in writing that it was impossible to send the transcript of the hearing of September 27, 2018. The recording of the RPD hearing therefore does not exist. [11] The RAD's role in an appeal against an RPD decision is defined by the Federal Court of Appeal in Huruglica,1 which states that the RAD must conduct a full assessment of all the evidence before it. [12] Considering that a recording of the hearing does not exist, that the RPD rendered a negative decision based on the appellants' credibility by raising a number of contradictions and implausibilities, and that the appellants submit that the RPD's decision is unreasonable, that the credibility assessment is incomplete and that they were shaken by the RPD member's behaviour,2 I am of the opinion that I am unable to conduct a full and independent assessment in the absence of the appellants' testimony. [13] Furthermore, recently in Pavel v. Canada (Citizenship and Immigration),3 only a small part of the Immigration Appeal Division (IAD) hearing was recorded, and the applicant's credibility was the central issue in the decision. The Federal Court specified, in that respect, that "[t]he lack of a complete record of a witness's testimony in a case where that witness's credibility is important is of particular concern.4 Following that analysis, Justice Norris concluded that he was unable to determine whether the IAD's credibility findings were reasonable or not because the recording was incomplete and that this meant that the rules of natural justice were violated. A new hearing was therefore required. [14] For all these reasons, I conclude that the incomplete recording of the RPD hearing led to a breach of procedural fairness and, consequently, a new hearing before the RPD is required. CONCLUSION [15] Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act, I refer the matter to the RPD for re-determination by a differently constituted panel. [16] The appeal is allowed. (Signed) Jolyane Lefebvre Me Jolyane Lefebvre December 20, 2019 Date IRB translation Original language: French 1 Huruglica, Bujar v. M.C.I. (F.C., No. IMM-6362-13), Phelan, August 22, 2014 ; 2014 FC 799 (CanLII). 2 Appellants' memoranda, paragraphs 63 to 70. 3 Pavel v. Canada (Citizenship and Immigration), 2018 FC 804 (CanLII). 4 Idem, paragraph 33. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / No de dossier de la SAR : MB8-26354 MB8-26355 / MB8-26356 RAD.25.02 (April 4, 2019) 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 (April 4, 2019) Available in English