Date: 20030409
Neutral citation: 2003 FCT 418
BETWEEN:
HARINDER SINGH RANDHAWA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
[1] The Convention Refugee Determination Division of the Immigration and Refugee Board (CRDD), now the Refugee Protection Division (RPD), in a decision dated June 10, 2002, vacated the applicant's Convention refugee status and determined that Mr. Randhawa is not a Convention refugee. He seeks judicial review of that decision.
[2] The applicant came to Canada from India and claimed refugee status on the basis of political opinion, his membership in the All India Sikh Student Federation. He alleged fear of persecution by the Punjab police. He was granted Convention refugee status on August 9, 1994. Mr. Randhawa's wife remained in India.
[3] On March 11, 1997, the applicant's wife was called in for an interview with an immigration program officer at the Canadian High Commission in Delhi, India. As a result of the information provided by her and reduced to writing in the form of a statutory declaration signed by her, the Minister made application to vacate the applicant's Convention refugee status pursuant to subsection 69.2(2) of the former Immigration Act, R.S.C. 1985, c. I-2.
[4] At the vacation hearing, the applicant submitted a number of documents into evidence and additionally called four witnesses, one of whom was his wife, to give evidence on his behalf. The Minister called one witness and tendered the statutory declaration. The board, in its decision, determined that the applicant and the witnesses called on his behalf were not credible. It accepted the evidence of the Minister and concluded that the applicant's wife did not lie during the 1997 interview and that the statements she gave at that time were true. It rejected all of the documentary evidence submitted by the applicant on the basis that it was fabricated, self-serving, vague or, in the case of the affidavits, contradictory with the contents of the will-say statements provided by the affiants.
[5] The applicant alleges various errors including, but not limited to, challenges to the board's credibility findings in relation to the witnesses who gave evidence on the applicant's behalf as well as to the board's rejection of the documentary evidence and where it was not rejected, the weight, or lack thereof, that the board assigned to it. In relation to credibility, the applicant alleges that the board either totally ignored or totally misconstrued the evidence and that its findings were patently unreasonable.
[6] The difficulty that arises is that, for reasons unknown to either counsel, the tribunal record contains a transcript of the evidence of the immigration officer and the applicant's wife, but no transcript of the testimony of the other three witnesses. This difficulty is further compounded by the fact that the applicant's affidavit, in support of his application for judicial review, includes a synopsis of the evidence of each of the three witnesses in question. Attached, as an exhibit to his affidavit, is his counsel's "memorandum to file" that contains, among other things, the applicant's counsel's summary of the evidence of the witnesses. It is readily apparent that the statements in the applicant's affidavit, when compared to the statements contained in the "memorandum to file", are consistent with respect to the tenor of the evidence of these witnesses. It is equally apparent that these documents stand in sharp contrast to the tribunal's description of the evidence in its decision.
[7] The applicant submits that if the evidence of these witnesses (and in particular two of them) had been believed, the board would have come to a different conclusion. Because the board ignored or misconstrued the evidence, it is critical that the court examine the evidence to determine that the board's findings were unreasonable in this respect and that intervention is warranted. In short, the applicant argues that, without the benefit of the transcript of the evidence of these witnesses, he is prejudiced. The respondent submits that negative credibility findings are properly made if reasons for the findings are provided in clear and unmistakable terms and questions of credibility and the weighing of evidence are matters within the jurisdiction of the board. The court has no basis upon which it can interfere.
[8] The parties agree that in the absence of a statutory right to a recording (which is the situation here), the court must determine whether the record before it allows it to properly dispose of the application. If it can, the absence of a transcript will not violate the rules of natural justice. The test is whether the applicant would be denied a ground of review by virtue of the absence of the transcript. The standard to be applied is that of serious possibility: City of Montreal v.Canadian Union of Public Employees, Local 301, [1997] 1 S.C.R. 793.
[9] While the respondent argues that the critical evidence upon which the decision turns is the evidence of the immigration officer and the applicant's wife, counsel concedes that the evidence of the other witnesses is relevant to the issue before the board. The applicant replies that without the transcript, the court has no way of determining the merits of the alleged error and that he will be denied his ground of review. This, he submits, constitutes a breach of procedural fairness.
[10] The decision, on its face, provides clear and cogent reasons for the board's credibility findings. I agree with the respondent that, in the normal course, credibility findings are insulated from judicial review. However, at the time the applicant swore his affidavit in support of his application, he was not aware that the transcript would not include the evidence of all of the witnesses. The "memorandum to file" exhibited to the affidavit was drafted from notes made contemporaneous with the hearing. Having carefully reviewed the summary of the evidence provided by the applicant, which stands uncontradicted but for the decision of the board, I cannot reconcile the divergent representations of the substance of the evidence in issue.
[11] Despite the capable and articulate arguments and submissions of counsel for the respondent, the applicant has persuaded me that the board's credibility findings with respect to the witnesses in question were fundamental to the decision. I am mindful of the comments of Evans J., as he then was, in Hassan v. Canada (Minister of Citizenship and Immigration) (1999), 174 F.T.R. 287 that given the nature of a vacation hearing, an individual is entitled to the clearest assurance that the board has given full and fair consideration to the evidence.
[12] Considering the applicant's argument and the evidence that supports it and applying a test of serious possibility, I conclude that the arguments referred to above cannot be adjudicated without the benefit of a transcript. To hold otherwise would leave me incapable of properly disposing of the totality of the application on its merits. At the end of the day, it may well be that the board's findings were reasonably open to it. That conclusion, however, cannot be arrived at, on the facts of this particular matter, without the benefit of the transcript. To proceed in the absence of the transcript would, in my view, deny the applicant a ground of review and would thus constitute a breach of procedural fairness.
[13] For the reasons given, the application for judicial review is allowed and the matter is remitted back for redetermination before a differently constituted panel of the Refugee Protection Division. An order will so provide. Counsel did not suggest a question for certification. This case raises no serious issue of general importance and no question is certified.
"Carolyn Layden-Stevenson"
J.F.C.C.
Toronto, Ontario
April 9, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
Names of Counsel and Solicitors of Record
DOCKET: IMM-2916-02
STYLE OF CAUSE: HARINDER SINGH RANDHAWA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
DATE OF HEARING: TUESDAY, APRIL 8, 2003
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR ORDER BY: LAYDEN-STEVENSON J.
DATED: WEDNESDAY, APRIL 9, 2003
APPEARANCES BY: Mr. Lorne Waldman
For the Applicant
Mr. Brad Gotkin
For the Respondent
SOLICITORS OF RECORD: Waldman & Associates
281-Eglinton Ave. East
Toronto, Ontario.
M4P 1L3
For the Applicant
Morris Rosenberg
Deputy Attorney General of Canada
For the Respondent
FEDERAL COURT OF CANADA
Date: 20030409
Docket: IMM-2916-02
BETWEEN:
HARINDER SINGH RANDHAWA
Applicant
- and -
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER