Date: 20090615
Docket: IMM-4909-08
Citation: 2009
FC 632
Ottawa, Ontario, June 15, 2009
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
CAI BING ZHONG
Applicant
and
THE MINISTER OF CITIZENSHIP AND
IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
The
present Application exposes a fundamental fault in the refugee claim process
applied at the time the Applicant made his initial statements claiming refugee
protection.
[2]
The
initial interview was conducted through a Cantonese interpreter. The Applicant
gave his statements in Cantonese which were in turn given in English by the
interpreter and written in English by the interviewing officer. No independent
means, such as a recording, was used to verify what was said by either the Applicant
or the interpreter, or whether the interviewing officer’s writing accurately
recorded what the Cantonese interpreter said. This “Record of Examination” is
the center of a fundamental controversy in the present Application.
[3]
Following
the preparation of the Personal Information Form (PIF) by the Applicant with
the help of legal counsel presently representing him in the present Application,
the Record of Examination was made available to the Applicant and his counsel.
As a result, the Applicant immediately asserted to his counsel that the Record
of Examination does not correctly record what he said in the interview, and, as
a result, counsel for the Applicant made this known to the Refugee Protection
Division (RPD) well in advance of the hearing.
[4]
Nevertheless,
the RPD member who conducted the hearing chose to use the Record of Examination
as accurate and relied on the statements made in it to find contradictions
between it and the PIF and the oral evidence produced at the hearing. This
process resulted in a negative credibility finding made against the Applicant.
In my opinion, this process constitutes a breach of due process.
[5]
In the
absence of a verifiable record of what was said by the Applicant at his
interview, I find it is a breach of due process for the RPD to have accepted
the Record of Examination as accurate in the face of the Applicant’s sworn
statement that it is not accurate. In
my opinion, the Record of Examination is the result of a fundamentally flawed record
keeping process and should not be used with respect to the Applicant’s claim
for refugee protection.
[6]
Given the breach of
due process found, I find that the decision under review is made in reviewable
error.
[7]
On the
basis of an argument that the finding of a breach of due process in the present
case may have broad implications for the refugee claim process, Counsel for the
Respondent advanced the following question for certification:
Is it a breach of natural justice for the
Refugee Protection Division of the Immigration and Refugee Board to rely on a
Record of Examination completed by an Immigration Officer in its assessment of
the credibility of a refugee claim?
Counsel for the Applicant objects to the question being
certified because the finding of breach of due process in the present case is
based on the facts of the present case. I agree with this argument.
[8]
In my
opinion, the interview process used in the present case does expose a consequent
refugee claim decision to a due process challenge, but the outcome of the
challenge depends on the circumstances of the individual case. In the present
case, advance notice was provided to the RPD of a sharp conflict between the
statements in the Record of Proceedings and the Applicant’s statements in the
PIF. In this particular fact situation, I find it was unfair of the RPD to rely
on the unverifiable conflict to make a negative credibility finding.
ORDER
Accordingly, I set aside the
decision under review and refer the matter back to a differently constituted
panel for redetermination on the direction that the Record of Examination not
be used on the redetermination.
There is no question to
certify.
“Douglas R. Campbell”
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