Docket: IMM-8015-13
Citation:
2015 FC 77
Winnipeg, Manitoba, January 20, 2015
PRESENT: The
Honourable Mr. Justice Zinn
|
Docket: IMM-8015-13
|
|
BETWEEN:
|
|
Ugo Okoroafa NNAH
|
|
Kelechi Solomon NNAH
|
|
Anointing Chime NNAH
|
|
Divine Akachiso NNAH
|
|
Winner Somtochi NNAH
|
|
Applicants
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
[1]
The Applicants seek to set aside a decision of
the Refugee Appeal Division [RAD] dismissing their appeal and confirming a
decision of the Refugee Protection Division [RPD] that they were not persons in
need of protection.
[2]
I agree with the Applicants that the RAD clearly
reviewed the decision of the RPD on the standard of reasonableness and that
most of the judges of this Court have held that to be an incorrect basis on
which to conduct an appeal of an RPD decision.
[3]
The Applicants submit that this error alone is
sufficient to allow the application and send the Applicants’ appeal back to the
RPD. The Respondent submits that even if the RAD had applied the standard of
review set out in decisions such as Huruglica v Canada (Minister of
Citizenship and Immigration), 2014 FC 799 [Huruglica], the result
would have been the same and accordingly, the Court ought not send the matter
back. Although the Applicants do not have the strongest case on the facts, I am
not persuaded that it would be impossible for a differently constituted RAD to
reach a different conclusion. Therefore, this application will be allowed.
[4]
There is a second issue raised in the
application that will also have to be considered by the RPD and it may be of
value if the Court offers some brief comments on it. It is the issue of a lack
of a transcript.
[5]
There was no transcript before the RAD, only the
audio recording of the RPD proceeding. The Applicants’ counsel advised the RAD
that the audio recording of the RPD hearing was not properly audible. The RPD
provided a second audio recording. Counsel again claimed the audio was not
properly audible. A RAD analyst concluded that the recording was audible.
[6]
The Refugee Appeal Division Rules,
SOR/2012-257 state:
3(3) The appellant’s record must contain the
following documents, on consecutively numbered pages, in the following order:
…
(b)
all or part of the transcript of the Refugee Protection Division hearing
if the appellant wants to rely on the transcript in the appeal, together with a
declaration, signed by the transcriber, that includes the transcriber’s name
and a statement that the transcript is accurate;
[7]
The Applicants submitted to the RPD that there
was a breach of procedural fairness because of the lack of a proper audio file
or written transcript. The RAD held that there was no such breach, as the audio
recording was audible.
[8]
The Refugee Appeal Division Rules
are silent on who is to provide the transcript, and there is no case law on
this exact point. The RAD in its reasons cite a Regulatory Impact Analysis
Statement [RIAS] which states:
It is not expected that the parties will require
a transcript in every appeal. Unlike what was indicated in the RIAS
accompanying the RPD Rules and RAD Rules which were pre-published in the Canada
Gazette, Part I, on July 2, 2011, the IRB will not, as a practice, provide
parties with a transcript of the RPD proceeding for the purposes of filing an
appeal at the RAD.
[9]
I agree with the submission
of the Applicants that this statement does not say that the RPD will never
provide a transcript. Each request needs to be considered on its own merits and
based on the facts alleged. As an example, an impecunious deaf appellant may
require a transcript in order to be able to meaningfully participate in the
hearing.
[10]
In this case, a close
reading of the correspondence between counsel and the RAD indicates that he was
unable to use the free version of the VIQ Player suggested to hear the audio
recording as it is not compatible with Windows 8, the operating system counsel
uses. There is no evidence that counsel was unable to hear the recording using
the RC Player or the Windows Media Player that is part of the Windows 8
package, and thus no evidence that he was unable to hear the recording using
other software.
[11]
If there is a request for a
transcript in the redetermination, the RAD will have to decide, based on the
facts offered, including those above, whether the burden of doing so lies with
it, or lies with the appellants. That is not a decision this court should make
now, based on the meagre record before it.
[12]
Counsel for the Applicants proposed three
questions for certification:
1.
Within the Refugee Appeal Division [RAD]’s
statutory framework where the appeal proceeds on the basis of the Refugee
Protection Division [RPD] record of the proceedings, what is the level of
deference, if any, owed by the RAD to the RPD’s findings of fact or mixed fact
and law?
2.
What is the scope of the Refugee Appeal
Division’s review when considering an appeal of a decision of the Refugee
Protection Division?
3.
Does the duty of fairness require the
Immigration and Refugee Board to supply an appellant to the Refugee Appeal
Division a transcript of the hearing at the Refugee Protection Division where
the appellant raises an issue which can be determined only on the basis of what
was said at the hearing?
[13]
The Respondent opposes the
certification of the first and third question. The second question was that
certified by Justice Phelan in Huruglica and I am of the view, in light of the Court’s disposition of this
application and the general importance of that question, that it be certified.
In light of the Court’s other findings, the third proposed question would not
be dispositive of this application, and the first question, in my view, is
subsumed in the second.
Email this Content