Canada Immigration Case law Canada, Navaratnam , IMMIGRATION — Refugee status — Procedure

Judgement for this Case: Click here!

IMMIGRATION — Refugee status — Procedure — Refugee claimants were citizens of Sri Lanka who alleged fear of persecution by Sri Lankan authorities and paramilitary groups — Claim was heard in March 2013 by Refugee Protection Division (RPD) member who became ill prior to rendering decision — Claimants were given option of de novo hearing or of having another member decide their claim based on evidence, submissions previously made and transcript of proceeding — Claimants chose second option but contended that counsel had requested that he be provided with hearing transcript in advance of any determination by new member — Transcript was not disclosed and significant portion of reasons was devoted to question of credibility — Member concluded that principal claimant’s evidence was not credible and was therefore insufficient to support claim — Member concluded that principal claimant was not Convention refugee pursuant to s. 96, or person in need of protection under s. 97 of Immigration and Refugee Protection Act (Can.) — Claimants applied for judicial review, contending that member breached requirements of procedural fairness and natural justice by failing to provide them with copy of transcript prior to rendering in chambers decision as they had requested — Claimants contended as result they were denied fair hearing, as they had no opportunity to speak to member’s credibility concerns — Application dismissed — Failure to provide transcript prior to new member issuing his decision did not result in breach of procedural fairness — Parties identified no RPD Rule or other process that applied in event that member who had conduct of hearing was unable to render decision — It was, therefore, open to RPD to offer claimants choice that it did, either hearing de novo or in chambers decision by another member based on transcription of evidence led and presented at hearing — There was no evidence as to whether co-ordinating member agreed or did not agree to claimant’s counsel’s request for transcript — Claimants had benefit of full hearing before member, at which they were represented by counsel who made submissions on their behalf orally and in writing — To extent that credibility was raised as concern at that time, it could have been addressed — Record does not indicate that request to make post-hearing submissions on credibility, or any other issues, was made by counsel who attended hearing and there was no evidence that RPD agreed or would have agreed to new submissions based on transcript — Indeed, in normal course, claimant would not be entitled to be provided with, review and respond to hearing transcript prior to decision being rendered