Federal Court Decisions

     IMM-4477-96

BETWEEN:

     FATMA CICEK

     Applicant

     - and -

     THE MINISTER OF CITIZENSHIP

     AND IMMIGRATION

     Respondent

     REASONS FOR ORDER

PINARD J.

         The applicant seeks judicial review of a decision of the Convention Refugee Determination Division of the Immigration and Refugee Board dated October 25, 1996, in which the Refugee Division determined she was not a Convention refugee as defined in subsection 2(1) of the Immigration Act.

         The Board rendered its decision on October 25, 1996, after hearings were held August 1, 1995, September 22, 1995, November 6, 1995, and January 17, 1996.

         It appears that the tribunal's decision is based quite simply on the applicant's lack of credibility. The Board, pointing to internal inconsistencies and implausibilities in the applicant's evidence, emphasized that each inconsistency and implausibility was put to the applicant without her being able to explain any of them satisfactorily. The Board then concluded that the evidence did not persuade them on a balance of probabilities that the events had actually taken place. According to the Board, the lack of accuracy in her testimony resulted in a rejection of her testimony "with respect to the well foundedness of the fear she allegedly has".

         The applicant's sister also testified on her behalf, and her testimony was also rejected as not being credible or trustworthy. According to the Board, her demeanour as a witness was not satisfactory, and she refused to answer reasonable questions that were put to her.

         Moreover, according to the Board, the applicant's six-month delay in claiming refugee status was inconsistent with her claim of a well-founded fear of persecution.

     * * * * * * * * * * * * * * * *

         The applicant essentially submits that, in arriving at its decision, the tribunal failed to properly consider evidence with respect to her intellectual shortcomings and emotional distress.

         The primary fact finder has the opportunity to assess the claimant's demeanour, reactions, and responses to questions put to him or her. Mr. Justice Décary held in Aguebor v. Canada (M.C.I.) (1993), 160 N.R. 351, at page 316, that the tribunal is in the best position to evaluate a claimant's credibility:

There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences? As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision my be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion, Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn. In this case, the appellant has not discharged this burden.1

         It has also been held that a negative finding of credibility can be extended to all relevant evidence drawn from the testimony (see Sheikh v. Canada (M.E.I.) (1990), 11 Imm.L.R. (2d) 81 (F.C.A.)).

         Absent any medical evidence on the record, I am of the opinion that this Court ought not to interfere with the tribunal's finding of credibility in this instance. There was ample evidence for the tribunal to arrive at its conclusion, given the noted inconsistencies, contradictions, and implausibilities. As shown by the tribunal's decision and by the transcript of the hearings, the applicant was provided with sufficient opportunity to respond to the tribunal's credibility concerns. Yet she was unable to satisfactorily explain any of the contradictions which were brought to her attention. Under such circumstances, the applicant having also failed to point to any specific erroneous finding of fact by the tribunal, I must conclude that she has not met the burden of proof to show that the tribunal's conclusions were unreasonable.

         The applicant also complains that in spite of her request to the tribunal, she was not provided with the tapes recording the hearings before it. It is worth noting that the applicant never sought an order of this Court for the purpose of forcing the tribunal to make the tapes available. Given the fact that the transcripts of the hearings were made available and that the applicant has failed to raise even one instance where the translation could actually be shown to be deficient, I do not see any merit to the applicant's argument that she was treated unfairly because she did not obtain a full and accurate record.

         The Supreme Court of Canada recently reviewed the principles applicable with respect to the lack of an accurate record. L'Heureux-Dubé J., writing for the Court in CUPE, Local 301 v. Montreal (City), [1997] 1 S.C.R. 793, made the following comments at pages 839-840:

In the absence of any express statutory requirements, the traditional common law requirements for a record of an administrative tribunal's proceedings include the document which initiated the proceedings and the document containing the tribunal's adjudication. Neither the reasons for the ruling, nor evidence presented at the hearing, have been considered necessary elements of the record to be presented to the superior tribunal upon appeal or review. Moreover, administrative bodies are normally under no obligation to make verbatim transcripts or recordings of their proceedings: D. Jones and A. de Villars, Principles of Administrative Law (2nd ed. 1994), at pp. 375-76.

Some deviation from this traditional approach has been evident in the jurisprudence of lower courts. Most notably, in Tung v. Minister of Employment and Immigration (1991), 124 N.R. 388, the Federal Court of Appeal found that as the lack of a transcript of a hearing before the Refugee Division of the Immigration and Refugee Board prejudiced the appellant in advancing an appeal of that decision, it constituted a denial of natural justice. The Federal Court of Appeal expressly disapproved of this decision in subsequent cases, however: Kandiah v. Minister of Employment and Immigration (1992), 141 N.R. 232, followed in Rhéaume v. Canada (1992), 153 N.R. 270. 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. The reviewing court should refrain from quashing the administrative order in such cases. This decision has been considered authoritative in the academic commentary on this issue: R.W. Macaulay and J.L.H. Sprague, Hearings Before Administrative Tribunals (1995), at pp. 12-98.

And again, at pages 841-842:

In my view, the decisions in Kandiah and Hayes, supra, provide an excellent statement of the principles of natural justice as they apply to the record made of an administrative tribunal's hearing. In cases where the record is incomplete, the denial of justice allegedly arises from the inadequacy of the information upon which a reviewing court bases its decision. As a consequence, an appellant may be denied his or her grounds of appeal or review. The rules enunciated in these decisions prevent this unfortunate result. They also avoid the unnecessary encumbrance of administrative proceedings and needless repetition of a fact-finding inquiry long after the events in question have passed.

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. As such a recording need not be perfect to ensure the fairness of the proceedings, defects or gaps in the transcript must be shown to raise a "serious possibility" of the denial of a ground of appeal or review before a new hearing will be ordered. These principles ensure the fairness of the administrative decision-making process while recognizing the need for flexibility in applying these concepts in the administrative context.

(My emphasis.)

         In light of this recent pronouncement by the Supreme Court, I am of the view that I need only determine whether the record before the Court renders it possible to dispose of this application. Upon reviewing the said record, it is my opinion that the available transcripts and documentary evidence render it possible in this particular situation. The inconsistencies and contradictions noted by the tribunal are reflected by the record, and are sufficient to support its finding of a lack of credibility.

         For all the above reasons, the application for judicial review is dismissed.

OTTAWA, Ontario

October 24, 1997

                                

                                         JUDGE

__________________

     ¹      See also Rajaratnam v. Canada (M.E.I.) (1991), 135 N.R. 300 (F.C.A.).