Docket: IMM-694-14
Citation:
2014 FC 1082
Ottawa, Ontario, November
17, 2014
PRESENT: The
Honourable Mr. Justice Simon Noël
|
BETWEEN:
|
|
MUHAMMAD IMTIAZ CHEEMA
|
|
Applicant
|
|
and
|
|
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
|
|
Respondent
|
JUDGMENT AND REASONS
I.
Introduction
[1]
This is an Application for leave to commence an
application for judicial review pursuant to section 72(1) of the Immigration
and Refugee Protection Act, SC 2001, c 27 (the IRPA) of a decision of Anna
Brychcy of the Refugee Protection Division (RPD) dated December 9, 2013, which
held that the Applicant was not a Convention Refugee nor a person in need of
protection within the meaning of sections 96 and 97 of the IRPA.
II.
Facts
[2]
The Applicant is a 41 year-old man from Pakistan.
[3]
The Applicant is a homosexual and commenced an
intimate relationship with his business partner, Mr. Saif Ullah (Mr. Ullah), by
the end of 2008. The Applicant and Mr. Ullah each owned 25% in a rice mills
company, Falcon Rice Mills, in Gujranwala, Pakistan. The other 50% of the
company is owned by Mr. Muhammad Tariq Aziz (Mr. Tariq Aziz).
[4]
The Applicant and Mr. Ullah rented an apartment
close to their place of work in Gujranwala. In February 2010, Mr. Tariq Aziz
visited the apartment where the Applicant and Mr. Ullah were living and saw the
Applicant half-naked while Mr. Ullah was in the shower. Mr. Tariq Aziz came to
suspect their homosexual relationship and started to blackmail the Applicant
and Mr. Ullah. Mr. Tariq Aziz proposed that they take over his 50% share in the
company by paying him 13 million rupees. The Applicant borrowed money from
different individuals, including 10 million rupees from Mr. Tariq Aziz’s right
hand man, Mr. Muhammad Afzal.
[5]
In April 2010, the lawyer who was in possession
of the documents of sale could not be found and Mr. Tariq Aziz kept his 50%
shares of the company, along with the money given to him by the Applicant and
Mr. Ullah. Also around April 2010, the Applicant was shot by Mr. Mohammad
Afzal, a body guard of Mr. Tariq Aziz.
[6]
In September 2010, the Applicant demanded either
the return of the money or the shares in the mill from Mr. Tariq Aziz, but the
latter threatened to disclose the Applicant’s homosexual relationship. The
Applicant and Mr. Ullah therefore decided to leave Pakistan for Canada.
[7]
On October 29, 2010, the Applicant and Mr. Ullah
were approached by Mr. Tariq Aziz’s brother-in-law and a religious clerk from
the Jamia mosque near the mill, while they were in a car, and were told that
they should prepare themselves for death by stoning, because of their
homosexual relationship. The Applicant and Mr. Ullah went to hide at a friend’s
house, Mr. Waseem, in Lahore.
[8]
The Applicant and Mr. Ullah enlisted the help of
a travel agent in order to leave Pakistan. They received their Canadian visas
and left Pakistan for Canada on November 16, 2010. They alleged coming to Canada to assess the rice market. They subsequently claimed refugee protection after being
questioned by immigration authorities at the airport.
III.
Procedural History
[9]
The Applicant’s refugee claim was originally
joined with that of Mr. Ullah. The two claims were originally heard together on
June 15, 2012, September 20, 2012 and September 25, 2012 by Member Aronoff.
[10]
Me Bohbot was initially counsel for both the
Applicant and Mr. Ullah. Me Jessica Lipes became counsel for the Applicant
after the February 9, 2012 hearing.
[11]
By a decision dated January 30, 2013, Member
Aronoff, decided to recuse himself from hearing the claims, because Mr. Ullah’s
counsel, Me Bohbot, made allegations of bias against him.
[12]
A request to separate the files was made and was
granted on May 1, 2013 by the coordinating member.
[13]
A de novo hearing was held on August 12,
2013 for the Applicant. On October 24, 2013, counsel for the Applicant filed a
motion for recusal of the board member, Member Brychcy, because she was in
possession of the transcript of the previous hearings. Me Lipes felt that the
Applicant’s testimony on August 12, 2013 was being compared to Mr. Ullah’s
testimony of the previous hearings, given under very strenuous circumstances,
as will be seen later. In comparing testimonies, counsel felt that Member
Brychcy would unjustly undermine the Applicant’s testimony. On November 15,
2013, Member Brychcy informed Me Lipes that she would not recuse herself. The
Applicant’s testimony continued on December 2, 2013. The RPD rendered its
decision on December 9, 2013.
IV.
Contested Decision
[14]
The panel was satisfied of the Applicant’s
identity, but did not find the Applicant to be credible. The RPD made the
following conclusions in their decision:
- The panel does not find the Applicant’s testimony credible with
regards to who, between the Applicant and Mr. Ullah, saw Mr. Tariq Aziz
first when the latter entered their apartment in February 2010 (RPD’s
Decision at paras 24 to 28 and 31).
- The panel finds the Applicant inconsistent in his August 2013
and December 2013 testimonies with regards to the condoms being left on
the table in the apartment. The panel finds that the mention of the
condoms on the table was made to embellish the Applicant’s claim to make
it look as if he and Mr. Ullah had been caught “red handed” (RPD’s
Decision at paras 29 to 31).
- The panel does not find the Applicant credible with regards to
how a letterhead paper from Falcon Rice Mills was obtained by the visa
agent for their visa application. The Applicant’s testimony at the
September 20, 2012 hearing is inconsistent with his December 2, 2013
testimony. The panel therefore concludes that the Applicant’s mention of a
blank letterhead being given to the visa agent at the December 20, 2013
hearing was an attempt from the Applicant to undo the damage of his
previous story told on September 20, 2012, where he denied knowledge of
the letter (RPD’s Decision at paras 32 to 35).
- The panel does not find the Applicant to be a forthcoming
witness. The panel believes that the Applicant tried to anticipate the
information being sought in their questions and concludes that the
Applicant would frequently claim not to understand the question or say
that his “head was about to explode” when
asked a key question or when discrepancies were pointed out to him (RPD’s
Decision at para 36).
- The panel finds the Applicant’s lack of proof of attending the
2012 and 2013 Gay Pride Parade and his inconsistencies with regards with
whom he attended those parades negatively affects his credibility as to
his alleged homosexuality (RPD’s Decision at para 37).
- The panel finds that the Applicant is not a forthright witness
because it believes that the Applicant could not have forgotten to mention
his homosexuality in the IMM 5611 form. The panel does not accept that the
Applicant’s psychological state was what caused him to forget this
information (RPD’s Decision at paras 38 to 41).
- The panel does not see any reason why the Applicant presented
himself as Mr. Ullah’s cousin and not just his business partner. The panel
also concludes that the Applicant’s general credibility is negatively
affected because he misrepresented his visa application (RPD’s Decision at
para 42).
- The panel gives little probative value to the documents
presented by the Applicant, because they contradict one another. For
example, a letter from a lawyer in Pakistan, dated September 13, 2011,
speaks of a verbal complaint by Mr. Tariq Aziz to the police station,
which states that no First Information Report or arrest warrant was issued
for the Applicant. This contradicts a newspaper article printed in The
Daily Pakistan, dated August 17, 2011, stating that there is a search to
arrest the Applicant because of his homosexuality. Evidence was also
presented to the panel that explains that it is possible to pay to have
false stories printed in newspaper articles (RPD’s Decision at para 44).
- The panel concludes that there is insufficient credible
evidence to establish that the Applicant has a well-founded fear of
persecution for a Convention ground because of his homosexuality under
section 96 of the IRPA. The Panel then considers whether or not the
Applicant is a person in need of protection under subsection 97(1) of the
IRPA. The panel states that it did not believe the Applicant’s
homosexuality to be the root cause of his problems with Mr. Tariq Aziz.
The Applicant would thus not be wanted by the police because of his
homosexuality. The panel goes on to state that the Applicant could easily
avoid anyone to whom he owes money by moving to Karachi, where the
Applicant would have an Internal Flight Alternative (“IFA”). The panel
also finds that the Applicant could find a doctor in Karachi with regards
to his health issues if he ever needed to (RPD’s Decision at paras 44 to
48).
- The panel finally concludes that because of the credibility
issues identified, the Applicant does not have a well founded fear of
persecution for a Convention ground in Pakistan. Furthermore, his removal
to Pakistan would not more likely subject him personally to a risk to his
life or to a risk of cruel and unusual treatment or punishment or to a
danger of torture (RPD’s Decision at para 49).
V.
Parties’ Submissions
[15]
The Applicant first submits that Member Brychcy
erred by not recusing herself at the de novo hearing after relying on a
third party testimony from the original hearing. The Applicant submits that he
was not given a fair hearing because there was an apprehension that the panel
was biased.
[16]
Moreover, according to the Applicant, “at a de novo hearing before the RPD, the new panel is generally
entitled to consider the transcript from the claimant’s original hearing”
(Applicant’s memorandum at para 34). However, in this case, the new panel used
the original transcript in an unfair way and gave rise to a reasonable
apprehension of bias. The original transcript contains Mr. Ullah’s testimony,
on which the panel relies to arrive at a negative conclusion with regards to
the Applicant’s credibility.
[17]
The Respondent submits that the decision of
Member Aronoff to recuse himself is not an indication that the evidence
collected during the Applicant’s first three hearings should not be included in
his de novo hearing, as the transcript does not bias the reader nor give
rise to a reasonable apprehension of bias. The Respondent further submits that
the recusal of Member Aronoff related to tension between him and Me Bohbot and
not the Applicant or Mr. Ullah.
[18]
The Applicant also submits that procedural
fairness was breached at the de novo hearing because Mr. Ullah was not
present and therefore he had no opportunity to make representations and provide
explanations for his testimony. The Applicant submits that the panel erred in
law when it rejected the motion for recusal. The Respondent replies that Member
Brychcy did not make a decision regarding Mr. Ullah’s rights and that in order
for the Applicant to argue a breach of natural justice, the unfairness has to
be towards the Applicant.
[19]
In the alternative, the Applicant submits that
the Board’s credibility analysis was not reasonable since the panel relied on
seven concerns to justify its negative credibility findings, where three of
those concerns arose from a comparison with the previous hearings’ testimony.
The Respondent replies that the Board is in a better position to assess the
credibility of the Applicant. The Respondent also notes discrepancies between
the Applicant’s different testimonies and between the Applicant’s testimonies
and Mr. Ullah’s testimonies to conclude that the Board did not err in not
finding the Applicant credible. The Respondent also submits that the Board was
conscious of the Applicant’s mental state and its impact on his testimony.
According to the Respondent, the Applicant’s mental state along with being
declared a vulnerable person by the coordinating board member does not mean
that his testimony is credible.
VI.
The Issues
[20]
The Applicant states the following issues:
- The RDP member’s reliance on a third party testimony from the
original hearing gives rise to a reasonable apprehension of bias;
- The Board’s
credibility analysis was not reasonable.
[21]
The Respondent submits the following issues:
- Having considered the transcripts of previous hearings, did the
Board member err in failing to recuse herself?
- Did the Board
err in concluding that the Applicant’s claim to be a homosexual was not
credible?
[22]
I have reviewed the issues identified by the
parties and I believe that the central issue of this case can be summarized as
follows:
- Did the Board member err by relying on the transcript of the
original hearings in the Applicant’s de novo hearing?
VII.
Standard of Review
[23]
The main issue identified above raises questions
of mixed facts and law. The applicable standard of review is therefore that of
reasonableness (Sing v Canada (Minister of Citizenship and Immigration),
2005 FCA 125 at para 43 (sub nom Lai v Canada (Minister
of Citizenship and Immigration))). The Court shall only intervene if it
concludes that the decision is unreasonable, where it falls outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC
9, [2008] SCJ No 9 at para 47).
VIII.
Analysis
A.
Did the Board member err by relying on the
transcript of the original hearings in the Applicant’s de novo hearing?
[24]
I find that Member Brychcy erred by relying on
the original transcript at the Applicant’s de novo hearing. The
original hearings were conducted in a very difficult atmosphere, where the
right to counsel was denied to Mr. Ullah. For the reasons below, it was thus
unreasonable to subsequently use this transcript in the Applicant’s de novo
hearing.
(1)
The original hearings
[25]
It is settled law that it is acceptable for a
new panel to use the transcripts from a refugee claimant’s original hearing in
a de novo hearing before the RPD (Darabos v Canada (Minister of
Citizenship and Immigration), 2008 FC 484 at para 13 [Darabos]; Diamanama
v Canada (Minister of Citizenship and Immigration), [1996] FCJ No 121, 61
ACWS (3d) 160 at para 10). It can be used by a panel for purposes of
fact-finding, such as to verify the veracity of a claimant’s story (Kabengele
v Canada (Minister of Citizenship and Immigration), [2000] FCJ No 1866, 197
FTR 73 at para 47; Badal v Canada (Minister of Citizenship and Immigration),
2003 FCT 311, [2003] FCJ No 440 at para 16). However, in the case at bar, the
use of the transcript of the original hearings is problematic. First, member
Brychcy used not only the Applicant’s testimony, but also the co-claimant’s
testimony at the time, Mr. Ullah, to make credibility determinations of the
Applicant, without Mr. Ullah being present at the de novo hearing to
explain his previous testimony. There is little evidence as to why Mr. Ullah
could not be present at the de novo hearing. Second, the original
hearings were conducted in a tensed atmosphere, where on two occasions Mr.
Ullah was denied legal representation. He was therefore questioned without his
lawyer present, due to no fault of his own, as will be described below. Also, the
atmosphere at those hearings was tensed and hostile as there was animosity
between Member Aronoff and Me Bohbot. On one occasion, Me Bohbot had to be
escorted out of the room by security. It was thus unreasonable for Member
Brychcy to have used the original transcript at the Applicant’s de novo hearing
to make credibility determinations. This deprived him of the opportunity to
present his case afresh, which created an unfair situation for the Applicant.
(2)
The right to counsel
[26]
The right to counsel in administrative law is
not absolute. However, “when the absence of counsel
results in depriving the individual of his right to a fair hearing, the
decision is invalid” (Mervilus v Canada (Minister of Citizenship and Immigration), 2004 FC 1206 at para 21). In
the case at bar, even if Member Aronoff never rendered a decision with regards
to the original hearings, the right to legal counsel was denied to Mr. Ullah at
the June 15, 2012 and September 20, 2012 hearings,
because of animosity between his lawyer and the board member. He was questioned
in a tensed atmosphere without his lawyer present to intervene or make
representations. Mr. Ullah’s testimonies were subsequently used at the
Applicant’s de novo hearing to make unreasonable credibility
determinations.
[27]
Counsel for the Respondent argues that the
Applicant cannot use rights not given to his partner as being reason to justify
that fairness was not given to him at the de novo proceeding. I disagree. As
the transcript of the first proceeding shows, the unfolding of the hearings was
such that the tension arising from the exchange between Member Aronoff and
counsel for Mr. Ullah (for a certain time, Me Bohbot was also counsel for the
Applicant), created an atmosphere that did not permit or facilitate the
testimonies of all concerned. For that reason, the events surrounding the right
to counsel involving Mr. Ullah were such that the hearing presided by Member
Aronoff created an unfair climate and a tensed atmosphere that tainted these
hearings and did not facilitate the testimonies of everyone concerned. In the
following paragraphs, a review of the transcript of the original hearings
describes the situation as it was lived by all present.
(a)
The June 15, 2012 Hearing
[28]
At the June 15, 2012 hearing, Mr. Ullah
states that he knew ten days before the hearing that Me Bohbot would not be
present at the hearing. Me Bohbot is said to have advised Mr. Ullah to find
another lawyer to represent him. Mr. Ullah contacted two lawyers, but neither
could take his case (Tribunal Record (TR) at pages 587 to 590). Me Bohbot also
told the tribunal by letter, on May 1, 2012, that he would not be present for
“confidential reasons” (TR at pages 585-647). At the beginning of the hearing,
Mr. Ullah mentioned that he was willing to proceed, but to take into account that he has no legal representation
(TR at page 590). Following questions regarding modifications to the Personal Information Forms of the claimants, Member Aronoff began questioning Mr. Ullah. Then, Mr. Ullah
expressed his concern that even though he is present at the hearing, he does
not have legal representation (TR at page 606). The transcript states (TR at
page 606):
BY PRESIDING MEMBER (to claimant): Mr. Ullah,
since you’ve come Canada which was on November 16th, 2010, has
anything happened in Pakistan concerning your situation that we should know
about?
BY CLAIMANT (MR. ULLAH) (to presiding member):
My request, my concern is that I am present, but I don’t have a lawyer to
represent me.
BY PRESIDING MEMBER (to claimant): Okay. That
is not what I asked you. Did you understand the question?
BY CLAIMANT (MR. ULLAH) (to presiding member):
Could you repeated (sic) please?
[29]
Member Aronoff continued Mr. Ullah’s
questioning. The Applicant was then questioned by Member Aronoff and Me Lipes.
Mr. Ullah intervened at some point during the Applicant’s testimony to discuss
the Applicant’s health situation (TR at page 635). Mr. Ullah was again
questioned by Member Aronoff regarding the rented apartment and the shower
incident (TR at pages 638 to 643).
(b)
The September 20, 2012 Hearing
[30]
After the June 15, 2012 hearing, Me
Bohbot remained as counsel for Mr. Ullah. At the September 20, 2012 hearing,
there was again a tensed altercation between Member Aronoff and Me Bohbot. Me
Bohbot also asked and stated to Member Aronoff, with regards to the June 15,
2012 hearing (TR at page 656):
“[…] Were you fair towards the right of
the claimant to be represented by his counsel of choice?
No, off course not. You said you had to
proceed.
So on June 15th, Me Lipes was there
with her client and you decide to ask my client questions knowing he’s not
represented and knowing very well that I sent letters saying I can’t make it
because I did not agree to scheduling a hearing on that date.
Is that a respect of principles of natural
justice and fairness? I don’t think so.”
[31]
The heated discussion continued between the two
men until Member Aronoff had Me Bohbot removed from the hearing room by
security (TR at pages 651-666), the following exchange takes place (TR at page
665):
BY COUNSEL (to presiding member): So for the
record, I’m leaving the room and my client is unrepresented from now on before
you.
BY PRESIDING MEMBER (to counsel): Your client
will make a decision.
BY COUNSEL (to presiding member): You made the
decision, not my client.
[32]
Me Lipes, counsel for the Applicant subsequently
expressed her concerns about Mr. Ullah being unrepresented (TR at page 669).
The transcript also contains the following discussion (TR pages 673 to 680):
BY PRESIDING MEMBER
(to claimant Mr. Ullah): And I’m ready to proceed.
Mr. Ullah, you don’t have counsel.
Unfortunately, your counsel made a determination that he prefers not to
represent you rather than to undertake to change the submissions that he was
wishing to make on your behalf.
It is my intention to proceed with the hearing
with respect to both you and Mr. Chimah (sic) and it is your decision
whether you will remain or not.
I will suspend for ten minutes to give you an
opportunity to think about it after which time the hearing will commence.
[…]
BY PRESIDING MEMBER (to all): Okay.
We’re back on the record and I’m asking Mr.
Ullah whether he is going to continue in the hearing room for his hearing.
BY CLAIMANT (to presiding member): No, how can
I do without my lawyer—without my lawyer?
BY PRESIDING MEMBER (to claimant):
Unfortunately, that is the circumstances you’re in. You have a choice to make.
BY CLAIMANT (to presiding member): No, sir, I’m
not going without him.
BY PRESIDING MEMBER (to claimant): Okay.
So you may leave the room and a decision will
be rendered dismissing your – unless I won’t render a decision immediately, but
your absence here is an indication that you were present and you made a
decision not to proceed.
In the opinion of the tribunal –
BY INTERPRETER (to presiding member): He wants
me to repeat sir.
BY PRESIDING MEMBER (to interpreter): Okay.
BY COUNSEL (to presiding member): My
understanding is that he’s staying in the room and that’s why he’s here.
BY PRESIDING MEMBER (to counsel): Pardon.
BY COUNSEL (to presiding member): My understanding
is that he is going to stay in the room.
BY PRESIDING MEMBER (to counsel): Well that’s
not what he just said.
BY COUNSEL (to presiding member): I understand
that that’s what – well, you understood that’s what he said, but…
BY CLAIMANT (to presiding member): I’m going
to—or whatever you’re going to order me, I’m bound to whatever you order me,
I’ll bound to that.
BY PRESIDING MEMBER (to claimant): No. I’m not
ordering you.
I’m telling you that you are here and that your
case will proceed and – okay, you’re going to have to bear with me, I want to
make sure I have to (sic) correct article.
BY COUNSEL (to presiding member): Mm’hm.
BY PRESIDING MEMBER (to claimant): Under
article 58 – under article 58(2) of the Rules of Practice, you must be given an
opportunity to explain why your claim should not be declared abandoned.
“The Division must give this opportunity
if the claimant is present at the hearing and the Division considers that it is
fair to do so.
The Division must consider if the claim
should be declared abandoned, the explanations given by the claimant at the
hearing and any other relevant information including the fact that the claimant
is ready to start or continue the proceedings. If the Division decides not to
declare the claim abandoned, it must start or continue the proceedings without
delay”.
Are you ready to proceed?
BY CLAIMANT (to presiding member): Actually, to
be true, I did not understand you very well, but I do want to proceed, go
through the proceedings for my case.
But without my lawyer, I’m feeling very
uncomfortable and I’m nervous without him and my body is not coordinating with
my language – or my tongue rather.
BY PRESIDING MEMBER (to claimant): Well
unfortunately, you are not represented because your counsel was removed from
the hearing room and the Tribunal’s determination is that it’s going to
proceed.
The Tribunal will take into account your
feelings on being uncomfortable and nervous. But if you don’t proceed, your
claim will be declared abandoned.
[33]
The exchange between Member Aronoff, Me Lipes
and Mr. Ullah continued, as Mr. Ullah reiterated his concerns regarding
proceeding without legal representation. Member Aronoff decided to proceed with
the hearing regardless. The Court is limiting itself to these excerpts, as the
Tribunal Record contains more pages of discussions between the parties with
regards to Member Aronoff’s decision to proceed with the matter despite Mr.
Ullah’s concerns regarding his lack of representation. These excerpts, however,
illustrate how Mr. Ullah was denied legal representation due to no fault of his
own, that he expressed concerns for being unrepresented and was forced to make
a decision to either proceed without the presence of his lawyer or see his
claim declared abandoned. Mr. Ullah was questioned without the opportunity for
his lawyer to make representations, ask questions and intervene. Therefore, Mr.
Ullah and the Applicant’s testimonies took place in a difficult environment,
where in the end, Member Aronoff recused himself, due to a reasonable apprehension
of bias (TR at pages 254-255). The use of the transcript in the Applicant’s de
novo hearing is thus problematic and unfair to all involved since the
testimonies given were done in an atmosphere not suitable in creating a climate
where justice is done and also appears to be done.
(3)
The use of the original transcript at the
Applicant’s de novo hearing
[34]
Member Brychcy erred by relying on the original
transcript at the Applicant’s de novo hearing. The use of the original
transcript was first raised in Me Lipes’ motion for recusal of Member Brychcy
(TR at pages 227-228). In her motion, Me Lipes objects to having the original
transcript part of the record and explains how the original hearings took place
in a tense and hostile atmosphere. Member Brychcy responded that she would not
recuse herself. With regards to the June 15, 2012 hearing, she states that even
though Mr. Ullah’s lawyer was not present, the hearing still proceeded and Mr.
Ullah was able to answer the questions asked by Member Aronoff. With regards to
the September 20, 2012 hearing, she says that even though there was tension at
the hearing and that Me Aronoff had to be escorted out of the room, the hearing
still continued and the “normal atmosphere” resumed after the departure of Me
Aronoff. She adds that both claimants were then asked questions about the
events they were expected to recall from their time in Pakistan and that there is no reason not to believe their testimonies. Member Brychcy
stated that any discrepancies between the Applicant’s testimonies and any
previous testimonies would be addressed at the December 2, 2012 hearing (TR
pages 221-222).
[35]
As stated above, Member Brychcy erred by relying
on the original transcript at the Applicant’s de novo hearing. Her
negative credibility determination of the Applicant is greatly supported by a
comparison between Mr. Ullah’s testimony from the original hearing to that of
the Applicant at his de novo hearing (RPD’s decision at paras 24-25,
26-27, 28-29, 30-31, 33-34 and 35). To rely on such a testimony, given under
the circumstances described above, to make credibility findings, is unfair to
the Applicant. He had the right to a fair de novo hearing.
[36]
Even though, under normal circumstances, it is
acceptable for the de novo panel to consider the transcript of a refugee
claimant’s original hearing before the RPD, in the present circumstances, which
were clearly abnormal, the original hearings were conducted in a tensed
atmosphere, where on at least two occasions Mr. Ullah was questioned without
his lawyer present. Me Bohbot also had to be escorted out of the room by
security in a hostile atmosphere and Member Aronoff ended up recusing himself.
It was therefore unreasonable for Member Brychcy to have used the transcript to
make a credibility determination against the Applicant. The transcript of the
first hearings should not have been used in such abnormal circumstances.
IX.
Conclusion
[37]
The Board erred in relying on the original
transcript in making a credibility determination at the Applicant’s de novo hearing.
As such, the decision falls outside the range of possible outcomes. The
decision is therefore sent back for re-determination before a new panel and the
transcript of the original hearings and of the de novo hearing are to be
excluded from the re-determination of the Applicant’s refugee claim.
[38]
The parties were invited to submit further
submissions regarding the issue of the use of the original transcript at the
Applicant’s de novo hearing, but both parties declined.
[39]
The parties were invited to submit questions for
certification but none were proposed.
Email this Content