VB3-01746

RAD File No. / N° de dossier de la SAR : VB3-01746 Private Proceeding / Huis clos Reasons and decision ? Motifs et décision Person(s) who is(are) XXXXX XXXXX XXXXX Personne(s) en cause the subject of the appeal Appeal considered / heard at Appel instruit à Date of decision November 25, 2013 Date de la décision Panel Tribunal Counsel for the person(s) who is(are) David Matas Conseil(s) du (de la/des) the subject of the appeal personne(s) en cause Designated representative N/A Représentant(e) désigné(e) Counsel for the Minister N/A Conseil du ministre REASONS FOR DECISION [1] XXXXX XXXXX XXXXX (the "appellant"), a national of Nigeria appeals the July 26, 2013, determination of the Refugee Protection Division (the "RPD") rejecting her claim for refugee protection. The claim was heard by the RPD on July 8, 2013 and a written decision was rendered on July 11, 2013. DETERMINATION [2] I find that the decision of the RPD cannot be confirmed as it was made in breach of the principles of natural justice and procedural fairness. I also find that I am unable to set aside the RPD decision and substitute a determination which, in my opinion, should have been made without hearing evidence that was presented to the RPD, particularly with respect to the issue of credibility. Pursuant to paragraph 111(1)(c) of the Immigration and Refugee Protection Act ("IRPA" or the "Act"),1 the Refugee Appeal Division (the "RAD") refers this matter to the RPD for redetermination by a differently constituted panel. BACKGROUND [3] The Minister has not intervened in this appeal. The appellant does not seek to provide new evidence as is referred to in subsection 110(4) of IRPA. The appellant does seek a hearing pursuant to subsection 110 (6) of the Act given her submission that credibility issues are relevant to the appeal. My ruling on this request can be found in the Grounds of Appeal portion of this decision. Basis of the Claim [4] The appellant is a 25-year-old single woman from XXXXX XXXXX, Edo State, Nigeria. Her parents and one brother live there while her two sisters, one married and one single, live in the nation's largest city, Lagos. Her other brother is a permanent resident of Canada, living in Winnipeg.2 [5] The appellant's mother is the XXXXX XXXXX, and her father, the XXXXX XXXXX, of a XXXXX XXXXX and XXXXX company in Nigeria.3 The father indicates that he is a "very successful businessman" with significant assets.4 [6] The appellant graduated from high school in XXXXX in 2004. In XXXXX 2006, the appellant travelled to Canada on a student visa and initially studied in Ontario, prior to moving to Winnipeg to attend the University of XXXXX. She is in the third year of a Bachelor of Arts XXXXX in XXXXX and expects to obtain her degree in October 2014. [7] In 2011, the appellant returned to Nigeria. While there, the claimant and her family went to her father's home village, located about two hours from XXXXX, to see the appellant's ill grandmother. One of the traditional female elders of the family (also a XXXXX XXXXX in the village), advised the appellant that arrangements had been made for her to marry an older man who had been providing funds to the extended family for a number of years in anticipation of a wedding to the appellant. As well, as the youngest daughter in her family who was about to turn 25, the appellant would have to follow tribal tradition and undergo what is known as female genital mutilation (FGM) or female circumcision. [8] When the appellant refused the proposal she was told that she would be forced by the extended family to undergo the FGM procedure and get married after she completed her studies and turned 25. The appellant alleged that the female elder told her that if she did not submit to the demands, some men would take the appellant and have the procedure carried out by force. [9] The appellant's parents said that the plan was not their personal choice but advised her that the tradition could not be ignored and that they could do nothing to prevent the wedding or the operation. While the mother is somewhat more sympathetic to the appellant's plight, the father, whose three brothers' youngest daughters all went through FGM, believes he has no choice in the matter inasmuch as he must uphold and respect his family's rituals and tradition. To go against the tradition by helping the appellant to avoid the procedure would lead to the father being ostracized from his family, something he wants to avoid. [10] Upon her return to XXXXX the appellant went to the police to complain about the threats against her and to seek protection. The police apparently conducted some sort of investigation which confirmed that the tradition existed in that area and advised the appellant that the police would not interfere in the matter given that long-standing customs and traditions could not be changed by them. The police advised the appellant to relocate.5 [11] The appellant returned to Canada in XXXXX 2012 and took up her studies once again. By January 2013, the appellant's severe nightmares arising from the possibility of FGM and her fear of what would happen to her upon returning to Nigeria became overwhelming. At the suggestion of a friend, the appellant made a claim for refugee protection in March 2013. RPD Decision [12] The RPD determined that the appellant was neither a Convention refugee nor a person in need of protection. The RPD made the following credibility conclusion: The claimant's testimony was at times vague and inconsistent with other evidence presented. Although her testimony was reasonably consistent, the panel does find the claimant not to be credible in certain issues within this claim; specifics will follow throughout the panel's analysis.6 [13] With regard to the determinative issues, the RPD stated: The determinative issues in this claim are the credibility of the intent of the agents of the harm and whether an internal flight alternative (IFA) in Lagos exists for the claimant.7 [14] The RPD found that the appellant had failed to establish either a section 96 or 97 claim with credible evidence.8 In the alternative, the RPD found that the appellant had a viable IFA in Lagos.9 GROUNDS OF APPEAL [15] Given my ultimate conclusion as is set out in the Analysis portion of this decision that the RPD determination cannot be confirmed due to a breach of natural justice and of the principles of procedural fairness, it is not necessary to discuss in great detail the grounds of appeal raised by the appellant in the Appellant's Record (AR). However, briefly stated, the appellant raises a number of areas of alleged deficiency in the RPD's analysis of the claim and in its determination which errors include the following. Intent of the Agents of Harm [16] The appellant submits that the RPD made no clear finding that the evidence as to the threats having been made against her were not credible. The Member did not reject the evidence that the appellant was told arrangements had been made for her to marry a man, that she would have to undergo a FGM process and that, if she refused, the extended family and those who uphold the tradition would take steps to force the appellant to comply with the customs of her father's extended family. The Police Report [17] While the RPD did not question the authenticity of the police report, the Member's conclusion that one should reasonably expect that the report would have made reference to the appellant's allegation that "men under the control of the threatening elder would forcibly take the appellant to undergo the procedure" was gratuitous and unfounded. What one should expect to be in a XXXXX, Nigeria police report was not within the specialized knowledge of the RPD and no country condition information was cited in support of the Member's conclusion. [18] It is in this regard that the appellant seeks a hearing before the RAD submitting that, whether or not the appellant told the police that men under the control of the elder would force the FGM, raises an important issue of credibility. In my assessment a hearing before the RAD is not permitted in the circumstances of this claim for the following reasons. [19] While, as will be discussed later, issues of credibility are definitely at issue in this matter, IRPA does not permit the RAD to conduct hearings except when credibility arises from new documentary evidence which has been accepted by the RAD under subsection 110(4) of the Act. The appellant has explicitly not sought to introduce such new evidence. [20] Concerning a hearing before the RAD, subsection 110(6) of the Act provides: 110(6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. (my underlining) [21] Subsection 110(3) provides: 110(3) Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and, in the case of a matter that is conducted before a panel of three members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board. (my underlining) [22] Subsection 110(4) provides: 110(4) On appeal, the person who is the subject of the appeal may present only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. (my underlining) [23] Accordingly, I conclude that a hearing before the RAD in the circumstances in this case would not be compliant with the provisions of the Act under which the RAD must conduct an appeal as no new evidence has been accepted. Country Condition Information [24] The appellant submits that, while at various places in the RPD determination the Member refers to country condition information, it is sometimes unclear upon which particular documents the Member places reliance. The appellant cites a number of passages in the determination where the footnotes cited by the Member do not align with any document that supports the conclusion set out in the reasons. As well, the appellant submits that, on other occasions, the Member refers to country information without attribution to any country condition evidence. In yet other cases, the Member's footnote reference to a particular document is in error and may be referring to another country document that had been disclosed. [25] Citing the authority of the Supreme Court of Canada in Dunsmuir,10 the appellant submits that, the reasoning upon which a Member makes a determination "must be justifiable, transparent and intelligible. When the Board relies on country condition information using erroneous citations and without indicating what the real source is: justifiably [sic], transparency and intelligibility disappear".11 The appellant submits that if a RPD Member mis-cites the evidence, it makes it impossible for the appellant or the RAD to determine whether or not the statements made are accurate or made out of context. [26] The appellant submits that if a Member relies on un-cited or mis-cited information, that amounts to a form of nondisclosure and, thus, a breach of the duty of fairness. The appellant submits that, while it may be that the information referred to may be in material disclosed through the National Documentation Package, if proper references are not made to the information, it cannot be known whether the Board relied on disclosed or undisclosed information. [27] The appellant also raises a claim that, in some other instances, the assertion the Member makes in her reasoning stated to be based on disclosed information, is not accurate and is contradicted by the Member elsewhere in her reasons. Knowledge of the Threat [28] As stated by the appellant: The Board member then relies on her own peculiar findings of lack of objective support for the appellant's fears and the limited knowledge of the appellant of a practice that is widespread and, according to her testimony, part of her family to draw a negative inference against the appellant's 'credibility to the true threat' to the appellant. This reasoning is convoluted, but the Board member seems not to be making a credibility finding but rather a finding on the well foundedness of the fear. If the appellant is wrong, and there is indeed a credibility finding here, the appellant challenges the credibility finding and asks for a hearing under Immigration and Refugee Protection Act section 110(6).12 [29] The appellant then notes that the RPD Member apparently found that there was not a true threat for two reasons. "One is what the Board member considered to be the lack of objective support for the fear. The second is the appellant's limited knowledge of the threat. Though this is not spelled out, the Board member appears to be reasoning that, if the threat were true, the appellant would not have had the limited knowledge she did have." "The Board member appears to be reasoning that, if the threat were true, the appellant would have known about the threat earlier". The appellant notes that she could not have known about the threat that was personally made to her when she returned to Nigeria until the threat was actually made. As stated by counsel, "expecting her to know about a threat before she is threatened is faulting her for not knowing the future".13 [30] No hearing before the RAD is appropriate with regard to this ground for the same reasons noted earlier. The Threat from the Father [31] The appellant submits that the Member misconstrued the evidence by failing to understand that, while the appellant testified that her father, in order to uphold the tradition, would tell others where she was in order that the customary practices could be carried out against her, she did not believe that her father would be physically involved in capturing her, in performing the FGM, or be personally physically violent against her. Internal Flight Alternative [32] The appellant submits that the RPD made a number of errors with respect to both the risk component of her being discovered in the IFA and with regard to the expectation that, in her particular circumstances, it would not be harsh or unreasonable for the appellant to live in Lagos. Given my ultimate determination in this case, I will discuss the IFA issues raised in this claim in the Analysis portion of this decision. Additional and Determinative Ground of Appeal [33] At this point of these reasons it should be noted that the appellant's counsel at the RPD is not the same counsel who acts for her on this appeal. [34] As well, it should also be noted that no transcript of the RPD hearing was apparently prepared by the appellant as none is included in the AR. In addition, the appellant provides no verbatim excerpts from the RPD hearing as might have been extracted from the CD of the RPD hearing which CD is provided to unsuccessful claimants when they receive their RPD reasons for its determination. Unless provided by the parties, transcripts of the RPD hearing are not provided to the RAD as a matter of course. [35] In this case, I reviewed the CD of the hearing which revealed an important step taken by the RPD Member which, I find, prevents me from confirming the RPD determination and is determinative of this appeal. This ground was not explicitly raised by the appellant. [36] After the Member completed her questioning of the appellant, she asked the then counsel how long he might require for his questioning. The following is my record of what then transpired:14 Member: Counsel, I'm going to rest there. I'll let you ah... How long do you think your questions will be? Counsel: Perhaps an hour ... an hour and a quarter. Member: Oh...Okay...no. [laughs] Let me narrow it down for you then. Okay? Counsel: Oh? Member: I'm going to look at, em, straight... what risk she faces in particular in an IFA. Counsel: Okay. Member: Okay, so can we limit your questions down to 20 minutes? Counsel: [pause] Yes ma'am. Um...I can assume that on the other issues the Board accepts...as credible? Member: In which particular are you speaking to? Counsel: Anything except IFA. Every issue except IFA. Member: Ah...ah [pause] Yes. To this point. Counsel: I see. [37] Counsel then commenced his questioning of the appellant, which questioning primarily focused on when she expected to return to Nigeria, how it might be that the appellant would be discovered in Lagos, the large number of people connected with the father throughout the country, how the father might become aware of where she was living, the dependency of the appellant financially on her father, the problems she would have living independently in Lagos, employment problems, her father's motivation to uphold the tradition and the like. [38] At one point, toward the end of his questioning and after a pause, counsel directed himself to the Member as follows:15 Counsel: I just need a moment here ma'am to look at.... Member: Sure... sure... take a... Counsel: What...See ma'am, my basic training is to... to go over the story to see what has been left out because of the way the questions were asked and then bring forward those facts...but since I have been directed to focus on the IFA by you (indiscernible, mixed with comments from the Member) I have to re-train [re-frame?] my... [questions?] [39] Counsel then went on to complete his questioning of the appellant. Thereafter, counsel made his submissions, virtually all of which concerned IFA.16 The Member then reserved her decision. [40] As will be discussed more thoroughly in the Analysis portion of these reasons, based upon the above record of the RPD hearing, I find that the Member breached the principles of natural justice and procedural fairness by indicating to the appellant's then counsel that she was satisfied on matters of credibility generally, that counsel should only ask questions with respect to IFA and then going on to make negative credibility findings in her written reasons on the broader principal allegations of the appellant upon which her whole claim was based. I find that these errors not only impact the RPD's credibility findings but also carry through to undercut the alternative negative determination based on IFA. [41] As noted, this ground of appeal is not raised directly by the appellant before the RAD. I do not know why this is so. I also do not know if present counsel reviewed the CD of the RPD hearing as I have done. [42] While I am of the opinion that RAD appeals should, for the most part, be party- driven and that the RAD should not generally search the Record for possible additional grounds of appeal, I am also of the view that manifest errors in the RPD process revealed in the Record cannot be ignored by the RAD in the consideration of the appeals which come before it. This matter presents an example where, I find, it is appropriate for the RAD to expand the grounds for appeal as I have indicated above. REMEDY SOUGHT [43] The appellant seeks an order that the determination of the RPD be set aside and that the appellant be found to be a Convention refugee or a person in need of protection. STANDARD OF REVIEW [44] The appellant made no submissions as to the appropriate standard of review the RAD should apply when considering the determinations of the RPD. [45] When considering such standards with regard to the judicial review of administrative tribunal determinations, the Supreme Court of Canada in Dunsmuir17 held that a standard of review analysis need not be conducted in every instance. Instead, where the standard of review applicable to a specific issue before a review court is well settled by past jurisprudence, a reviewing court may adopt that standard of review. It is when that search proves fruitless that a reviewing court must undertake a consideration of factors comprising the standard of review analysis. [46] The RAD is a new appellate administrative tribunal about which, to the best of my knowledge, the Federal Court has yet to comment on the question of what standard of review the RAD should apply under various circumstances that might come before it. Accordingly, a standard of review analysis must be undertaken in this case. [47] While there are similarities between the role of the RAD vis-à-vis the RPD and a court of judicial review with respect to administrative tribunal determinations, there are also a number of important differences. Some of the more important of these are: * An appeal may be taken to the Federal Court only with leave of the court, while an appeal of right to the RAD from the RPD is available for those who fit one of the legislative categories of potential appellants, albeit with certain determinations of the RPD not being subject to appeal. * A judicial review by the court is not with respect to the substantive merits of a case but, rather, considers the legality of the tribunal's decision and process. While both a reviewing court and the RAD will consider questions of law, fact or mixed fact and law, the RAD also considers the substantive merits of the matter and may make final decisions as to whether or not an individual should have refugee protection. In my assessment this is a particularly important distinction in the circumstances of this case. * With rare exceptions, new evidence is not permitted on a judicial review whereas there are provisions in the IRPA which provide limited circumstances whereby new evidence may be introduced before the RAD by an appellant and, in some specific situations, oral testimony may be taken by the RAD. The scope of new evidence which might be presented to the RAD by the Minister is not restricted. * The remedies available upon judicial review are, generally speaking, limited to a dismissal of the judicial review or, if successful, the referral of the matter back to the tribunal for a redetermination. In contrast, the RAD may confirm the RPD determination, set the determination aside and substitute its own determination, or, in limited situations, may refer the matter back to the RPD for redetermination with, or without, directions. These broader powers of the RAD too are an important consideration in this matter. [48] Although both the RPD and the RAD may make determinations on refugee protection, there are notable differences between the two Divisions. [49] A review of the legislation regarding the RAD makes it clear that an appeal from the RPD to that Division is not a de novo or new hearing. The appeal is based on the RPD Record with restrictions on the new evidence that may be presented by a claimant, and there are oral hearings only in limited circumstances. Such an appeal is not a re-litigation of the entire case nor is it intended to duplicate the work of the RPD. In my view, this distinction provides a basis for the RAD, which does not generally conduct hearings, to show deference to the findings of the RPD, particularly with respect to findings of fact or of mixed fact and law. However, as discussed below, I find that this is not the case with regard to a breach of natural justice or of procedural fairness, an error the review of which engages a standard of review of correctness. [50] I find that the indication given by the RPD in this case that matters of credibility generally were not at issue, i.e. the claimant's basis for her claim was accepted as credible, with the resultant restriction by counsel of his questioning of the appellant, of his presenting documentary evidence and of his submissions to questions of IFA, which arose from that assurance by the RPD, only to be followed by negative credibility findings by the RPD, constitute a denial of the common law right of a claimant to present his case (being a breach of natural justice) and in, effectively, misleading counsel as to the matters being considered or the case he needed to make (constituting a breach of procedural fairness). [51] There is substantial authority for the conclusion that breaches of natural justice or a failure to adhere to principles of procedural fairness are to be treated as errors of law to which the standard of review of correctness should apply. [52] This is the case regarding an analysis by an appellate superior court on an appeal from a trial court in, for example, a negligence case.18 It is also the approach taken by a court on the judicial review of the actions of administrative tribunals.19 [53] The Federal Court of Appeal noted the following in its 2005 Sketchley decision at paragraph 53: [53] CUPE20 directs a court, when reviewing a decision challenged on the grounds of procedural fairness, to isolate any act or omission relevant to procedural fairness (at para. 100). This procedural fairness element is reviewed as a question of law. No deference is due. The decision-maker has either complied with the content of the duty of fairness appropriate for the particular circumstances, or has breached this duty.21 [54] An example of the application of these principles in the field of refugee protection determination is found in Marino Gonzales22 which applied the correctness standard when the Court held that, in the circumstances of that case, the RPD failed in its duty of procedural fairness in not providing the claimant with an opportunity to respond to its concerns regarding a psychological assessment. [55] The Alberta Court of Appeal in Newton23 also provides guidance in its judicial review of the decision of an appellate tribunal (The Law Enforcement Review Board) concerning a determination by a first-instance administrative officer regarding the discipline of a policeman. In this regard, the relationship of the Review Board to the decision of the administrative officer is not fundamentally dissimilar to appeals to the RAD from the RPD. In Newton, the Court stated what the case concerned: [1] This appeal concerns the basic structure and interrelationship of the tribunals in Alberta that review the conduct of police officers when that conduct is called into question in disciplinary proceedings under the Police Act, R.S.A. 2000, c. P-17. The specific issue is the extent to which the Law Enforcement Review Board may conduct a fresh hearing based on fresh evidence when an appeal is launched from the decision of a presiding officer in a disciplinary matter. [56] The Court's ultimate determination in Newton was as follows: [96] The appeal is allowed, and the decision of the Board set aside. The answers of [sic] the three questions on which leave was granted are as follows: 1. The Board did err in law by conducting a de novo hearing, and by allowing the Criminal Trial Lawyers' Association to call evidence which was called or available at the disciplinary hearing, without requiring it to meet the legal test for new evidence; 2. The Board did fail to apply the correct standard of review to the decision of the Presiding Officer; 3. The Board did err in failing to consider the exhibits tendered, including the transcript of the hearing before the Presiding Officer. [57] Accordingly, the Court of Appeal in Newton found that the application of the appropriate standard of review by an appellate tribunal concerning a determination by a first level administrative decision-maker was a matter of law, regarding which the selection of a standard by the appellate tribunal must be correctness. [58] Given my earlier references to authorities establishing that a breach of natural justice or procedural unfairness are to be seen as errors in law and the conclusion that, no matter if it is an appeal from a trial court to a superior appeal court, judicial review by a court of a decision of an administrative tribunal or, in the case of Newton, an appeal from a first-instance tribunal to an appellate tribunal, I conclude that the RPD's breach of natural justice and procedural fairness in this case are errors of law to be measured against a standard of correctness. ANALYSIS OF THE MERITS OF THE APPEAL [59] Generally, the subject matter of an appeal to the RAD is party-driven. In that regard, an appellant has the onus of demonstrating how and in what way the RPD might have erred. However, in my assessment the RAD is not strictly restricted to considering the specific grounds of appeal raised by the parties. The RAD has powers beyond those of courts on judicial review, including even the ability to come to ultimate conclusions different from those of the RPD as to whether or not an individual is or is not a Convention refugee or a person in need of protection. In my opinion, in certain circumstances the RAD may base its decision on grounds other than those propounded by the parties if, , to do otherwise would lead to the confirmation of a decision made in the face of apparent breaches of the principles of natural justice or procedural fairness. [60] In this case, in its determination, the RPD, in effect, resurrected the question of the credibility of the appellant about the fundamental factual basis of her claim, after the RPD had indicated in the course of the hearing that those questions (with the exception of the issue of IFA) had been laid to rest. This is unfair. With the backdrop of her directions to limit his questions, counsel reasonably followed the course of dealing only with IFA. Being assured that the appellant's credibility generally had been accepted, counsel could legitimately expect that the Member had concluded that the threats against the appellant had been made, both with respect to FGM and a forced marriage; that the tradition of FGM existed in Nigeria for persons of the appellant's background; that the police, both generally and in the specifics of the appellant circumstance, would take no steps to assist the appellant; that if the appellant did not comply with the demands, men would be sent to capture her and force the FGM procedure upon her; that her parents would not assist the appellant in avoiding her mistreatment; and all other elements the appellant would require to credibly establish her claim as a Convention refugee or person in need of protection. [61] After all, like the issue of state protection, the matter of IFA only arises and only need be analyzed if a claimant has successfully established a section 96 or 97 claim. When counsel is told by the RPD Member to restrict his efforts to the matter of IFA, it is reasonable for counsel to assume that no further work need be done to provide evidence which goes to the underlying claim of persecution, risk or danger. That could reasonably be assumed. [62] I conclude that is what happened in this case and the RPD was in error thereafter to reconsider credibility generally in coming to its negative determination that the appellant's story was not credible. [63] That then leaves the RPD's alternative finding that the appellant had an IFA. [64] In introducing this issue in her reasons, the Member began by writing, "In an abundance of caution on this particular matter, the panel finds that alternatively the claimant has a viable IFA in Lagos". [65] In her analysis, the Member does make various findings about whether the appellant would or would not be found in Lagos by those wishing to do her harm. This includes matters such as her father's scope of contacts in the country, his motivation to find her, whether he personally would be involved in physically searching for her, abducting her and forcing her to undergo FGM and other such matters. [66] However, this analysis is made through a lens which includes negative credibility findings such as the Member not accepting the allegation that adult women are abducted and forced into FGM and a finding that, contrary to the appellant's evidence, the elder woman from the village, the appellant's father or family would not attempt to pursue the appellant to Lagos. [67] Generally speaking, if an RPD Member is to propose a viable IFA as an alternative to an initial finding of a lack of credibility, it is imperative for the Member to be very clear about what factual suppositions they are making in order to conduct the IFA analysis. It is inappropriate, as was the case here, to purport to conduct an IFA analysis (which is, after all, premised upon an acceptance that a section 96 or 97 claim has been made out or, when considered in the alternative, assumptions are made that that is the case) and then include negative credibility findings imported from the initial conclusions that the claimant is not to be believed regarding important factual elements that establish the persecution, risk or danger. This is particularly so when, as here, the Member has essentially told counsel for the claimant that he need not worry about presenting evidence to establish the initial claim. The Member, having made such a direction, cannot later make negative credibility findings with respect to those matters which the claimant alleged about the nature of her claim. [68] In this case, it is not at all clear to me what the Member ultimately used as the factual underpinnings of her IFA analysis. This lack of clarity is particularly exemplified by her overall conclusion on the appellant's credibility as is set out in the Member's "Credibility" conclusion at the beginning of her reasons: The claimant's testimony was at times vague and inconsistent with other evidence presented. Although her testimony was reasonably consistent, the panel does find the claimant not to be credible in certain issues within this claim; specifics will follow throughout the panel's analysis.24 [69] For these reason, I find that the breach of natural justice and procedural fairness regarding the appellant's credibility generally, tainted the determination that the appellant had an IFA. Accordingly, the IFA finding also must be set aside. [70] A determination of a remedy for the error made by the RPD in this case involves an analysis of the consequences arising from that error upon the findings of the RPD, as well as the appropriate steps that might be taken by the RAD in light of the error and those consequences. [71] While there is authority for the proposition that an appeal in a case where a breach of natural justice has been demonstrated to have occurred might still be dismissed, such cases are very rare and will occur only if the earlier determination would inevitably have been the same, even if the breach had not happened. [72] As was stated by the Federal Court in Clark-Erskine:25 [15] It is not possible to conclude that the Applicant's case is hopeless and that the breach of natural justice should be ignored because the result is inevitably the refusal of the application for protection (as occurred in cases such as Gonzalez v. Canada (Minister of Employment and Immigration) (F.C.A.), [1991] F.C.J. No. 408 (QL); Konadu v. Canada (Minister of Employment and Immigration) (F.C.A.), [1991] A.C.F. No. 330 (QL)). As noted in Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202, where the result was inevitable, it is a rare case where breaches of natural justice can or, more importantly, should be ignored. [16] In concluding that this case is not so weak as to be hopeless, the Court is not suggesting that the case has merit (even if that were within the Court's jurisdiction to say) nor does it suggest that the Board's other conclusions are necessarily flawed. However, where a breach of natural justice occurs, absent a clear indication that a rehearing would be no more than an exercise of form over substance, the Court should err on the side of upholding procedural fairness. [Emphasis added] [73] I cannot conclude in the case before me that the result would inevitably have been the same had the Member not made the errors I have noted. The question remains as to what the appropriate remedy should be under section 111 of IRPA. [74] The circumstances in this case are quite different than would be the case where, for example, the RPD errs with respect to only an aspect of their determination and where the other RPD findings are found be reasonable. In such cases, there may be circumstances where the Record enables the RAD to consider and reverse the erroneous finding, thus resolving the appeal without the need to return the matter back to the RPD for redetermination. [75] However, in my assessment, the nature of the error in this case renders the entirety of the RPD reasons invalid, such that they are owed no deference and there are no valid determinations at all remaining for the RAD to review. [76] While the Mobil Oil authority referred to earlier is an example of an exception, the consequences of a breach of procedural fairness generally were set out by LeDain J. in the Supreme Court Canada decision of Cardinal and Oswald v. Director of Kent Institution:26 [23] I find it necessary to affirm that the denial of a right to a fair hearing must always render a decision invalid, whether or not it may appear to a reviewing court that the hearing would likely have resulted in a different decision. The right to a fair hearing must be regarded as an independent, unqualified right which finds its essential justification in the sense of procedural justice which any person affected by an administrative decision is entitled to have. It is not for a court to deny that right and sense of justice on the basis of speculation as to what the result might have been had there been a hearing [my emphasis]. [77] I have earlier concluded that appeals to the RAD are not de novo hearings. As well, I have noted that the RAD is generally restricted to considering the evidence which had been brought before the RPD as set out in the RPD record (RPDR), with the possibility of certain important new evidence being admissible at the RAD in limited circumstances under subsection 110(4). As well, the RAD's ability to hear direct evidence from the appellant is circumscribed; being significantly limited by subsection 110(6). I have earlier determined that a hearing before the RAD is not appropriate in the circumstances of this claim. [78] On the other hand, the RAD is legislatively prevented from referring a matter for rehearing and redetermination back to the RPD (as opposed to confirming the RPD determination or setting it aside and substituting it with another that, in the opinion of the RAD should have been made) except when the RAD cannot make a decision to confirm or substitute "without hearing evidence that was presented" to the RPD (paragraph 111(2)(b)). [79] There is considerable judicial authority to the effect that it is dangerous for appellate or reviewing courts to make "credibility findings" based solely on transcripts. This was also found to be the case where an appellate tribunal criticized a negative credibility finding of the initial tribunal and found a witness to be credible based solely on the transcript of the hearing at the first-instance level.27 I find that the same reasoning should be applied in the case of a CD record of an RPD hearing. However, it will be for a future case, having circumstances different from the one before me that will determine whether or not the RAD is entirely precluded from making such findings based on transcripts or a CD. [80] Because I have found that the entirety of the RPD findings in this case are invalid as being tainted by procedural unfairness, I cannot look to those determinations in any way. No deference is due to the findings and they must be ignored. That being so, the RAD cannot either confirm or substitute the RPD decision with one which, in the RAD's opinion, should have been made without, in effect, making all necessary findings itself. Given that the RAD does not conduct de novo hearings and is otherwise significantly restricted as to when it may hold any hearings, the RAD would have to make its findings of fact only on the basis of the Record and a CD of the RPD hearing. In light of the reasons noted earlier, I have concluded that in the circumstances of this case, where there is nothing left to review of the RPD determination, it would be problematic for the RAD to make findings of fact in such a way, particularly as they relate to credibility issues. I find that to properly make such findings it would be necessary to hear evidence that was presented to the RPD, including the appellant's testimony. [81] In the result, I find that I can neither confirm the RPD determination nor set it aside and substitute my own determination. The matter will be referred to the RPD for redetermination. CONCLUSION [82] Accordingly, I conclude that the appeal of XXXXX XXXXX XXXXX is allowed and that the matter is referred to the RPD for a redetermination by a differently constituted RPD panel. (signed) "Philip MacAulay" November 25, 2013 Date REFUGEE APPEAL DIVISION / CLAIMANT'S APPEAL / FORCED MARRIAGE / FEMALE GENITAL MUTILATION / INTERNAL FLIGHT ALTERNATIVE / STANDARD OF REVIEW / PROCEDURAL FAIRNESS / FEMALE / REFER THE MATTER / NIGERIA 1 Immigration and Refugee Protection Act, S.C. 2001, c. 27. 2 RAD Exhibit 3, Refugee Protection Division Record (RPDR), p. 20. 3 RAD Exhibit 3, RPDR, pp. 84-85. 4 RAD Exhibit 3, RPDR, pp. 96-97. 5 RAD Exhibit 3, RPDR, p. 133. 6 RAD Exhibit 2, Appellant's Record (AR), p. 4, para. 10. 7 RAD Exhibit 2, AR, p. 4, para. 11. 8 RAD Exhibit 2, AR, p. 3 para. 2 and pp. 5-8 paras.13-20. 9 RAD Exhibit 2, AR, pp 8-10, paras. 21-27. 10 Dunsmuir v. New Brunswick 2008 SCC 9. 11 RAD Exhibit 2, AR, pp 130, paras. 15-16. 12 RAD Exhibit 2, AR, pp 133-134, para. 32. 13 RAD Exhibit 2, AR, p 134, paras. 33-35. 14 RAD Exhibit 3, RPDR (back sleeve). Extract found at 1:01:40-1:02:44 of the CD. 15 RAD Exhibit 3, RPDR (back sleeve). Extract found at 1:16:00-1:16:45 of the CD. 16 RAD Exhibit 3, RPDR (back sleeve). Found at 1:25:40-1:46:17 of the CD. 17 Dunsmuir v. New Brunswick 2008 SCC 9, [2008] 1 S.C.R. 190. 18 Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33. 19 Dunsmuir v. New Brunswick 2008 SCC 9, [2008] 1 S.C.R. 190. 20 Referring to Canadian Union of Public Employees v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, 2003 SCC 29. 21 Sketchly v. Canada (Attorney General), 2005 FCA 404. 22. Marino Gonzales v. Canada (Citizenship and Immigration)(F.C. no. IMM-3094-10) 2011 FC 389. 23 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399. 24 RAD Exhibit 2, Appellant's Record (AR), p. 4, para. 10. 25 Clark-Erskine v. Canada (Citizenship and Immigration) (F.C. no. IMM- 5303-06) 2007 FC 385. 26 Cardinal and Oswald v. Director of Kent Institution26 (1985), 23 C.C.C. (3d) 118 (S.C.C.), at p. 132 27 Killen v. Minister of Transport [1999] CanII 8354 (FC). --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ RAD File No. / N° de dossier de la SAR : VB3-01746 RAD.25.02 (April 9, 2013)