Date: 19990923
Docket: IMM-6582-98
Between:
JEAN-CLAUDE LIBENGE LIKELE
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
TREMBLAY-LAMER J.:
[1] This is an application for judicial review of a decision dated October 27, 1998, by the Refugee Division of the Immigration and Refugee Board, which determined that the applicant is not a Convention refugee.
[2] The applicant submits that the hearing was not recorded, and that this was a breach of the principles of natural justice.
[3] Recently, the Supreme Court of Canada settled the issue of the lack of a transcript. In Canadian Union of Public Employees, Local 301 v. Montréal (City),1 Madam Justice L"Heureux-Dubé summed up previous decisions and stated the legal principles that apply to situations in which the transcript of the hearing is missing or 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. [Emphasis added.] |
| . . . 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.1 |
[4] The Kulmiye decision repeated this principle "that the absence of a transcript is determinative only in cases where that defect prejudices in some way the applicant's ability to present his case for judicial review".1
[5] In the case at bar, the panel found the applicant"s testimony to be full of unlikelihoods, inconsistencies and contradictions. Thus, the panel"s decision was solely based on the applicant"s lack of credibility.
[6] I have trouble seeing how the applicant can argue before this Court that such a finding is patently unreasonable, when he is unable to refer to his testimony at the hearing because there is no transcript.
[7] With respect to the fact that counsel did not object to the applicant"s testimony going unrecorded at the hearing, counsel would have had to know that the hearing was not being recorded. There is no evidence that counsel had been informed of this fact.
[8] For these reasons, the application for judicial review is allowed. The matter is referred back to a different panel for redetermination.
[9] Neither counsel suggested that a question be certified.
Danièle Tremblay-Lamer
JUDGE
MONTRÉAL, QUEBEC
September 23, 1999.
Certified true translation
Peter Douglas
Federal Court"Trial Division
Date: 19990923
Docket: IMM-6582-98
Between:
JEAN-CLAUDE LIBENGE LIKELE
Applicant
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-6582-98
STYLE OF CAUSE: JEAN-CLAUDE LIBENGE LIKELE
Applicant
AND
MINISTER OF CITIZENSHIP
AND IMMIGRATION
Respondent
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 22, 1999
REASONS FOR ORDER OF THE HONOURABLE TREMBLAY-LAMER J.
DATED September 23, 1999
APPEARANCES:
Marie-José L"Écuyer for the applicant
Josée Paquin for the respondent
SOLICITORS OF RECORD:
Marie-José L"Écuyer
Montréal, Quebec for the applicant
Morris Rosenberg
Deputy Attorney General of Canada
Ottawa, Ontario for the respondent
__________________1 [1997] 1 S.C.R. 793.
2 Ibid. at pp. 839, 842, 843.
3 Kulmiye v. Canada (M.C.I.) (January 27, 1998), IMM-3553-96 (F.C.T.D.).