TB4-10069

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 : TB4-10069 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) the subject of the appeal XXXXX XXXXX XXXXX (a.k.a. XXXXX XXXXX XXXXX y XXXXX XXXXX) Personne(s) en cause Appeal considered / heard at Toronto, Ontario Appel instruit à Date of decision February 25, 2015 Date de la décision Panel David Lowe Tribunal Counsel for the person(s) who is(are)the subject of the appeal Michael F. Loebach Barrister and Solicitor Conseil(s) du (de la/des) personne(s) en cause Designated Representative(s) N/A Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXXX XXXXX XXXXX (the Appellant), a citizen of Egypt, appeals a decision of the Refugee Protection Division (RPD) denying her claim for refugee protection. She has submitted no new evidence in support of her appeal. The Appellant asks the Refugee Appeal Division (RAD) to set aside the decision of the RPD and to substitute it with a decision that the Appellant is a Convention refugee or a person in need of protection or, in the alternative, the RAD send the matter back to the RPD for re-hearing by a different panel with whatever instructions the RAD feels necessary and appropriate. DETERMINATION [2] Pursuant to Section 111(1)(c) of the Immigration and Refugee Protection Act (IRPA), the RAD refers the matter to the RPD for re-determination by a differently-constituted panel. Background [3] The Appellant alleged before the RPD that she is an Egyptian woman who has been suffering from family neglect all of her life and sexual abuse at the hands of her father and others. The Appellant was forced to work a job which required her to work at night and to take a two hour taxi ride to and from work each day. That long taxi ride, which had to navigate police checkpoints, put the Appellant in the position of being assaulted by police on multiple occasions because women who are out alone at night, in Egypt, are treated with no respect by others. [4] The Appellant did not tell her family of the assaults because she feared she would be the subject of an honour killing by her family. [5] Fearing the ongoing and continuing assaults and the possible outcome of being a victim of family honour killing, the Appellant decided to flee Egypt in order to live a safer life. [6] The Appellant fears that she will be killed by a family member should she return to Egypt. Her fear is based on the honour code which is prevalent in her culture. That honour code would require her father or another male relative to kill her because she has dishonoured the family, first by being a victim of sexual assault and secondly, by fleeing the country without permission, leaving behind her family to explain the Appellant's departure so suddenly. These actions would be deemed to bring dishonour to the family name, leaving the only way for the family to regain its honour to be by killing the Appellant. [7] The Appellant's application for refugee protection was heard on September 22, 2014 and a negative decision was delivered on October 7, 2014. The RPD found the Appellant not to be credible. [8] The Appellant submits that the RPD incorrectly assessed the Appellant's credibility and; [9] The Appellant submits that the RPD erred by ignoring evidence which established the Appellant's need for protection and; [10] The Appellant submits that there is a breach of natural justice because the RPD did not provide an audible Compact Disc (CD) recording of the hearing. Such a recording must be audible so that the Appellant has the opportunity to confirm that the basis on which the RPD made its decision, as outlined in its Reasons for Decision, is in fact what was said in the hearing. The Appellant submits that the recording in this case is of a very poor quality so as to make it nearly impossible to ascertain what is being said by the Appellant at the hearing. [11] The Appellant also raises the questions as to what standard of review the RAD should use in the appeal. ANALYSIS [12] The Appellant argues that the CD of the hearing of September 22, 2014, is of such poor quality that a proper transcription is nearly impossible. Counsel for the Appellant has provided a certified transcription of the recording and the RAD has compared it to the recorded CD. It would appear to the RAD that the transcription is a true representation of what one could actually hear and understand on the CD. The RAD counted literally hundreds of instances where individual words, partial sentences or complete responses were simply not understandable. [13] While bearing this in mind, the RAD must consider whether the lack of a recording or transcript is a breach of natural justice in this particular circumstance. The RAD finds the following decision of the Federal Court in Razm v. Canada helpful: "in the absence of a statutory right to a recorded hearing, 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 "Neither the Immigration Act nor the Convention Refugee Determination Division Rules requires the recording of the hearing. As appears to be the common practice in refugee hearings, however, this tribunal chose to record its proceeding. The partial transcript alone discloses three apparently unsubstantiated findings by the tribunal. The applicant's failure to provide a more fulsome affidavit concerning his testimony on the missing tape is saved by the important discrepancies in comparing the reasons for decision with that portion of the transcript that is available. These discrepancies may be sufficient reason to set aside the decision, particularly if the complete transcript were available for review. In this case, no meaningful judicial review can be achieved with the partial transcript, one which discloses potentially serious errors. The incomplete record does not allow me, in the words of Justice L'Heureux-Dubé in CUPE,1"to properly dispose of this application for judicial review" on the substantive issues. In view of this conclusion, I need not deal with the applicant's other grounds."2 [14] The RAD finds that the Appellant's submission and arguments regarding the audio CD of the hearing of September 22, 2014 are at least very similar to the subject matter above. [15] Although the RAD may not agree in totality that there has been a breach of natural justice, it will consider the issue as a possible breach of procedural fairness. A great deal of the RPD's Reasons is based on credibility, some of it in relation to differences between oral testimony and documentation, but most of it is confusing to the RAD due to the inconsistent quality of the audio recording of the hearing. Some of the differences between oral and documentary evidence were explained by the Appellant but the explanations did not satisfy the RPD. The RAD would prefer to have the ability to hear the discussion between the RPD and the Appellant on all of these issues, but due to the poor quality of the audio recording, that is not possible thereby leaving the RAD with an insufficient record upon which to make a fair consideration of the appeal. [16] The RAD cannot properly assess the RPD's findings for the same reason that the Appellant argues she cannot properly argue her appeal. [17] The RAD cannot properly assess the other issues put forth by the Appellant without having access to a clean and clear audio recording of the hearing, as most of the basis for the RPD's Reasons and Decision is credibility-based. [18] Although the RAD will defer to the RPD in some instances regarding credibility, when the entire basis of claim is deemed incredible and the RAD is unable to listen to or to read a full and proper recording or transcript of the hearing, it does in fact make it impossible for the RAD to properly dispose of this appeal. [19] For this reason alone, the RAD will allow this appeal. Disposition [20] The RAD has found that the RPD's decision cannot stand; however, that is not due to any error found to have been committed by the RPD. The appeal must be allowed for no other reason than procedural fairness. If the Appellant cannot properly address the concerns of the panel in her appeal, due to the inaudible recording of the hearing, it would be unfair of the RAD not to send this matter back to be re-heard. CONCLUSION [21] Pursuant to Section 111(1)(c) of the IRPA, the RAD refers the matter to the RPD for re-determination by a differently-constituted panel. The RAD would like to suggest that the RPD ensure that the recording equipment is working well and that all persons in the hearing room are reminded from time to time to speak up and to speak into the recording microphones. This appeal is allowed. (signed) "David Lowe" David Lowe February 25, 2015 Date 1 Canadian Union of Public Employees, Local 301 v. Montreal (City), [1997] 1 SCR 793 2 Razm, Farshid v. Canada (Minister of Citizenship and Immigration), (F.C. no. IMM-3796-98) Lutfy, March 17, 1999. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD.25.02 (June 23, 2014) RAD File No. / N° de dossier de la SAR : TB4-10069