Date: 19990924
Docket: IMM-6309-98
Ottawa, Ontario, the 24th day of September 1999.
Present: THE HONOURABLE MR. JUSTICE DENAULT
Between:
YIZHI SHANG
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
ORDER
The application for judicial review is allowed, the decision of the Convention Refugee Determination Division of the Immigration and Refugee Board, dated October 29, 1998, is set aside and the matter is referred back to the Refugee Division for rehearing and redetermination by a differently constituted panel.
PIERRE DENAULT
Judge
Certified true translation
M. Iveson
Date: 19990924
Docket: IMM-6309-98
Between:
YIZHI SHANG
Applicant
- and -
MINISTER OF CITIZENSHIP AND IMMIGRATION
Respondent
REASONS FOR ORDER
DENAULT J.
[1] This is an application for judicial review of a decision of the Convention Refugee Division of the Immigration and Refugee Board (the Refugee Division), dated October 29, 1998, which determined that the applicant, a citizen of the People's Republic of China, is not a Convention refugee.
[2] The applicant, an accountant and communications officer for the Binhai Compagnie de développement des nouvelles [news agency] in 1993 and 1994, discovered that one of the company officials was involved in corrupt practices with other senior employees. She told him of her discovery and reported him to management. Upset, he in turn accused the applicant of entering into a contract with another company without authorization; as a result, she was arrested for fraud on July 15, 1994.
[3] The applicant was imprisoned for more than five months and released on December 26, 1994. She was acquitted on August 30, 1995, but the prosecution entered an appeal in September 1995. By the time the applicant left China in September 1997, the outcome of this appeal was still not known. The applicant fears arrest if she returns to China for having broken a law against leaving the country before a court case is settled.
[4] In a short decision rendered just after the hearing, the Refugee Division rejected the applicant's claim for refugee status, noting, first, a major contradiction between her narrative and her testimony. I will come back to this issue in the paragraphs that follow. The panel also noted several weaknesses and implausibilities, about which I do not consider it necessary to say anything further, before finding that there was no link between the prosecution for corruption, based on false accusations, and one of the five reasons set out in the Convention.
[5] In support of the application for judicial review, counsel for the applicant argued that the panel erred in finding contradictions between his client's narrative and her testimony. He considers that because a major portion of the transcript of the hearing is missing, he cannot demonstrate the errors committed by the panel to this Court, even with his client's affidavit.
[6] It is important to reproduce the first ground advanced by the Refugee Division for rejecting the claim:
[TRANSLATION]
First, we noted a major contradiction between your narrative and your testimony at the hearing today. In your narrative, you described persecution by the bureau de la Sécurité publique [Public Security Bureau], which prevented you from making a living and finding work. However, at the hearing, you acknowledged that you were able to hold four different jobs after being released from prison, between January 1995 and March 1996.
[7] I note here that even though the applicant's testimony was mechanically recorded, a major portion of the transcript is not in the court record.[1]
[8] In Canadian Union of Public Employees v. Montreal, [1997] 1 S.C.R. 793, the Supreme Court laid down the principles which govern the absence or inadequacy of the transcript of a hearing with respect to the rules of natural justice. In short, the Supreme Court held in that case that when a court of law has before it an application for judicial review on this ground, it need not order a new trial unless there is a serious possibility of an error in the missing portion of the transcript, or that the omission deprived the appellant of a ground of appeal. Madame Justice L'Heureux-Dubé, writing for the Court, stated the following:
Even in cases where the statute creates a right to a recording of the hearing, courts have found that the applicant must show a "serious possibility" of an error on the record or an error regarding which the lack of recording deprived the applicant of his or her grounds of review . . . . (p. 840)
. . .
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. (p.842)
In Kulmiye v. M.C.I., IMM-3553-96, January 27, 1998, in which the applicant sought to have the decision of the Refugee Division quashed because two thirds of the transcript of the hearing was unavailable, Mr. Justice Heald stated the following:
. . . counsel for the respondent submits 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. I agree with counsel for the respondent.
[9] As indicated above, in the instant case, the Refugee Division cited a major contradiction between the applicant's narrative in her Personal Information Form (PIF) and her testimony at the hearing on the issue of the four different jobs she allegedly held after her release from prison. The applicant claims that these events were described in her PIF,[2]and in the affidavit she filed in support of her application for judicial review she certified[3]that she testified about this issue at the hearing. Because of the absence of part of the transcript, the Court is unable to properly verify whether the applicant contradicted herself. It is true that her affidavit could have been much more specific about the substance of her testimony at the inquiry, and in particular could have indicated where, in her opinion, the panel erred in its assessment of her testimony. Nonetheless, I believe that her affidavit contains enough information to raise a serious possibility of a denial of a ground of review. In fact, because of the absence of this transcript, the applicant cannot challenge the points on which the panel relied to determine that she did not discharge the burden of establishing that she had a reasonable fear of persecution, even though this was at issue during her testimony.
[10] Because a major portion of the transcript is missing, the Court is unable to verify whether the panel erred in holding that it [TRANSLATION] "noted a major contradiction" between her narrative and her testimony.
[11] The application for judicial review is accordingly allowed. At the end of the hearing, counsel for the applicant proposed two questions for certification in the event of an appeal. In light of my finding, this is not a case for certification.
PIERRE DENAULT
Judge
Ottawa, Ontario
September 24, 1999
Certified true translation
M. Iveson
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT NO.: IMM-6309-98
STYLE OF CAUSE: YIZHI SHANG v. MCI
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: SEPT. 13, 1999
REASONS FOR ORDER OF DENAULT J.
DATED SEPT. 24, 1999
APPEARANCES:
MARTIN FORGET
FOR THE APPLICANT
LUCIE ST-PIERRE
FOR THE RESPONDENT
SOLICITORS OF RECORD:
MARTIN FORGET
FOR THE APPLICANT
LUCIE ST-PIERRE
Morris Rosenberg FOR THE RESPONDENT
Deputy Attorney General of Canada
[1]The following entry appears at page 286 of the court record: [TRANSLATION] "Record of hearing incomplete as cassette no. 1 is unavailable. Johanne Hébert, case officer."
[2]In response to question 37 (p. 25 of the applicant's file), she wrote: [TRANSLATION] My life has been difficult since I was released. People from the Bureau de vérification [control office] threatened those I was working for. Nobody challenged them because of their power. That is why no company wanted to employ me.