Date: 19990317
Docket: IMM-3796-98
BETWEEN:
FARSHID RAZM
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
LUTFY J.:
[1] The applicant is an Iranian national who maintains that he has converted from Islam to Zoroastrianism, an offence punishable by death in Iran. On arrival in Canada, he claimed Convention refugee status due to persecution on religious grounds. The Convention Refugee Determination Division did not believe that the applicant had become a Zoroastrian and denied his claim. The applicant challenges this determination. The second of two tapes used to record the tribunal hearing has been misplaced. One of the principal issues raised by the applicant is whether the rules of natural justice require a new hearing in the absence of a complete transcript.
[2] It is common ground, and indeed now trite law, that the Convention Refugee Determination Division has complete jurisdiction to determine the plausibility of testimony.1 Where the reasons for its decision on credibility must be stated in clear and unmistakable terms,2 this Court will only interfere in exceptional circumstances.
[3] Counsel for the parties canvassed the relevant case law concerning the consequences of an incomplete record, where there is no statutory requirement for a hearing transcript. In Kandiah v. Minister of Employment and Immigration,3 Pratte J.A. concluded that the lack of a transcript, due to the malfunctioning of a recording machine during a refugee hearing, did not constitute a failure to observe a principle of natural justice. In noting that the C.R.D.D. decision may be subject to judicial review, Justice Pratte added:
| However, a meaningful right of review may exist without a transcript or a recording of the proceedings. In the absence of a transcript, the appellant may establish by other means what transpired at the hearing. This is specially true of the hearings before the Refugee Division where the applicant is always present and, in most cases, is the only witness heard.4 |
|
In Kandiah, the panel chose not to follow a contrary decision of the Court of Appeal in Tung v. Canada (Minister of Employment and Immigration),5 preferring to rely on the older jurisprudence of the Court. In Tung, Justice Stone wrote that "... the failure to have available a full verbatim transcript of the proceedings has prejudiced the appellant in prosecuting this appeal and has thereby denied him natural justice".
[4] This conflicting case law was recently reviewed by the Supreme Court of Canada in Canadian Union of Public Employees, Local 301 v. Montreal (City).6 In concluding that the decision in Kandiah was more consistent with the traditional approach, Justice L'Heureux-Dubé summarized her understanding of that case and stated the guiding principle where the record of the administrative tribunal's hearing is incomplete:
| In Kandiah, the Federal Court of Appeal acknowledged the concern underlying the decision in Tung, that is, that an applicant may be deprived of his or her grounds of review or appeal given an absence of a transcript of what transpired at the impugned hearing. It held, however, that if the decision facing the court could be made on the basis of evidence established through other means, the principles of natural justice would not be infringed. |
|
...
| In the absence of a statutory right to a recording, courts must determine whether the record before it allows it to properly dispose of the application for appeal or review. If so, the absence of a transcript will not violate the rules of natural justice. Where the statute does mandate a recording, however, natural justice may require a transcript. |
|
...
| ... 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.7 |
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[5] In this case, the tribunal based its negative finding of credibility concerning the applicant's claim that he had converted from Islam to the Zoroastrian faith on several grounds. First, the tribunal expressed disbelief that someone who claimed acts of persecution suffered as a result of his conversion "... would not, once he arrived in Vancouver, make contact with the Zoroastrian community". Yet, the applicant testified that he attended sessions, "a number of times", with a representative or member of Vancouver's Zoroastrian community.8 Similarly, the tribunal's finding that the applicant "did not know the names of the leaders and representatives of the Zoroastrian community in either Iran or in Canada" ignores, in the absence of any other explanation, his evidence identifying an elder of the Zoroastrian community in Teheran.9 He also identified the community representative in Vancouver. It is difficult to understand why the tribunal did not accept this testimony of the applicant where he names representatives, if not leaders, of the Zoroastrian community. The tribunal further erred in stating that the applicant "did not know of the famous Zoroastrian temple in Yazd". In fact, the applicant was asked if he knew the location of "a temple ... Jameh-e-kabir" which, according to the documentary evidence, is an Islam mosque and not a Zoroastrian temple.10
[6] Neither the Immigration Act11 nor the Convention Refugee Determination Division Rules12 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,13 "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.
[7] Accordingly, this application for judicial review will be granted and the matter
referred for rehearing before a differently constituted panel. Neither party suggested the certification of a serious question.
J.F.C.C.
Ottawa, Ontario
March 17, 1999
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1 Aguebor v. Minister of Employment and Immigration (1993), 160 N.R. 315 (F.C.A.).
2 Hilo v. Minister of Employment and Immigration (1991), 15 Imm. L.R. (2d) 199 (F.C.A.).
3 (1992), 141 N.R. 232, 6 Admin. L.R. (2d) 42 (F.C.A.).
4 Ibid. at 235.
5 (1991), 124 N.R. 388 (F.C.A.).
6 [1997] 1 S.C.R. 793.
7 Ibid. at paragraphs 76, 81 and 83.
8 Tribunal record, pp. 27 and 36.
9 Tribunal record, p. 26.
10 Tribunal record, pp. 28-9 and 202.
11 R.S.C. 1985, c. I-2.
12 SOR/93-45.
13 Supra note 6 at paragraph 3.
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