Date: 20040310
Docket: IMM-5597-02
Citation: 2004 FC 356
Ottawa, Ontario, this 10th day of March 2004
Present: THE HONOURABLE MR. JUSTICE O'REILLY
BETWEEN:
CHARLES KEHINDE AGBON
Applicant
and
THE MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] Mr. Agbon argues that a panel of the Immigration and Refugee Board wrongly dismissed his claim for refugee status. The Board found Mr. Agbon not to be credible and also believed that he could have readily found safe refuge from within his native Nigeria as an alternative to fleeing to Canada.
[2] At the hearing of this application for judicial review, counsel for Mr. Agbon explained that a full transcript of the hearing before the Board was unavailable. One of the audio-tapes was blank. Counsel argued that these circumstances alone justified my ordering a new hearing because Mr. Agbon's ability to challenge the Board's findings is constrained by the absence of a record of his testimony.
[3] I agree. While the mere absence of transcript does not amount to a breach of natural justice, it may prevent the Court from dealing with an important issue arising in the application for judicial review. If so, the applicant is entitled to a new hearing: Kandiah v. Canada (Minister of Employment and Immigration), [1992] F.C.J. No. 321 (QL) (F.C.A.);Canadian Union of Public Employees, Local 301 v. Montreal, [1997] 1 S.C.R. 793; Goodman v. Canada (Minister of Citizenship and Immigration), [2000] F.C.J. No. 342 (QL) (T.D.). In particular, where the applicant raises an issue that can only be determined on the basis of a record of what was said at the hearing, the absence of a transcript prevents the Court from addressing the issue properly: Vergunov v. Canada (Minister of Citizenship and Immigration), [1999] F.C.J. No. 584 (QL) (T.D.).
[4] Here, the Board found that Mr. Agbon was not a credible witness largely on the basis of a "change in emphasis" in his evidence during cross-examination. Without the transcript, I cannot determine whether the Board's credibility finding was supportable on the evidence.
[5] Similarly, I cannot determine whether the Board's conclusion that Mr. Agbon would probably be safe in Lagos was reasonable.
[6] In these circumstances, I must allow this application for judicial review and order a new hearing before a different panel. Counsel may make any submissions regarding a certified question within five (5) business days.
JUDGMENT
THIS COURT'S JUDGMENT IS that:
1. The application for judicial review is allowed. The matter is returned for re-hearing before a different panel of the Immigration and Refugee Board.
2. Submissions regarding a certified question may be made by counsel within five (5) business days of this judgment.
"James W. O'Reilly"
J.F.C.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: IMM-5597-02
STYLE OF CAUSE: CHARLES KEHINDE AGBON v. THE MINISTER OF CITIZENSHIP AND IMMIGRATION
PLACE OF HEARING: Toronto, Ontario
DATE OF HEARING: March 4, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: The Honourable Mr. Justice O'Reilly
DATED: March 10, 2004
APPEARANCES:
Kingsley I. Jesuorobo FOR THE APPLICANT
Ms. Marianne Zoric FOR THE RESPONDENT
SOLICITORS OF RECORD:
KINGSLEY I. JESUOROBO FOR THE APPLICANT
North York, Ontario
MORRIS ROSENBERG FOR THE RESPONDENT
Deputy Attorney General of Canada