Date: 20050309
Docket: IMM-2290-04
Citation: 2005 FC 346
Toronto, Ontario, March 9th, 2005
Present: The Honourable Mr. Justice Campbell
BETWEEN:
NICHOLAS ORTIZ JR.
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1] In the present case, the Applicant, who is a citizen of the Philippines, made a claim for refugee protection on the basis of a well founded fear of a political official and his illegal private army in the Philippines.
[2] A central problem in the conduct of the present case is the fact that a transcript of the proceedings before the Refugee Protection Division (RPD) is not available. Counsel for the Applicant argues that, since credibility is a critical factor in the RPD's denial of the Applicant's claim for protection, the absence of the transcript is a breach of natural justice since it prevents a proper evaluation of the Applicant's argument that the RPD misapprehended his evidence. The principal of law with respect to this argument is stated by Justice O'Reilly in Agbon v. Canada (Minister of Citizenship and Immigration) [2004] F.C.J. No. 407 where he states the following:
[2]_____ At the hearing of this application for judicial review, counsel for Mr. Agbon explained that a full transcript of the hearing before the Board was unavailable. One of the audio-tapes was blank. Counsel argued that these circumstances alone justified my ordering a new hearing because Mr. Agbon's ability to challenge the Board's findings is constrained by the absence of a record of his testimony.
[3]_____ I agree. While the mere absence of transcript does not amount to a breach of natural justice, it may prevent the Court from dealing with an important issue arising in the application for judicial review. If so, the applicant is entitled to a new hearing: Kandiah v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 321 (QL) (F.C.A.);Canadian Union of Public Employees, Local 301 v. Montreal, [1997] 1 S.C.R. 793 ; Goodman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 342 (QL) (T.D.). In particular, where the applicant raises an issue that can only be determined on the basis of a record of what was said at the hearing, the absence of a transcript prevents the Court from addressing the issue properly: Vergunov v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 584 (QL) (T.D.).
[4]_____ Here, the Board found that Mr. Agbon was not a credible witness largely on the basis of a "change in emphasis" in his evidence during cross-examination. Without the transcript, I cannot determine whether the Board's credibility finding was supportable on the evidence.
[3] I find that the circumstances of the present case are indistinguishable from that found in Agbon. That is, the important issue which is under review in the present case is the RPD's finding of credibility based on the evidence the Applicant gave in the course of the hearing. Without the transcript, it's impossible to decide whether the RPD's negative credibility finding was made in reviewable error. As a result, on the present judicial review, I find that the lack of a transcript amounts to a denial of the Applicant's right to natural justice.
ORDER
Accordingly, I set aside the RPD's decision and refer the matter back to a differently constituted panel for redetermination.
"Douglas R. Campbell"
J.F.C.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: IMM-2290-04
STYLE OF CAUSE: NICHOLAS ORTIZ JR.
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: MARCH 9, 2005
REASONS FOR ORDER: CAMPBELL J.
DATED: MARCH 9, 2005
APPEARANCES:
SOLICITORS OF RECORD:
|
Chris Opoku-Okumu
Barrister & Solicitor
Toronto, Ontario
|
FOR THE APPLICANT
|
|
John H. Sims, Q.C.
Deputy Attorney General of Canada
Toronto, Ontario
|
FOR THE RESPONDENT
|
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