Benavente v. Canada ( Minister of Citizenship and Immigration )
IMM-4106-94
Reed J.
27/4/95
5 pp.
Application for judicial review of Board's decision applicants not Convention refugees -- Applicants, brothers from Guatemala, claiming fear of persecution resulting from older brother's outspoken opposition to government and refusal of military duty -- Decision at issue arising from second hearing as first hearing decision set aside by Court-No available transcript of significant part of oral evidence given at second hearing due to tape recorder malfunction -- Board's reasons, noting "extensive questioning" during hearing regarding claimant's conscription into army, in direct contradiction with affidavit stating neither counsel's notes of hearing nor his personal memory containing record or memory of such line of questioning -- Although absence of transcript alone not constituting breach of natural justice, contradictory evidence warranting redetermination under circumstances -- In face of differing evidence with respect to hearing, Board's evidence not preferred to appellants' as: (1) hearing more unique experience for applicant than Board; and greater likelihood of remembering facts relating to unique event; and (2) applicant having no responsibility for, or control over transcription of evidence and thus should not be disadvantaged by any resulting problems -- Board's reasons also reflecting adverse finding of truthfulness based on claimants' nervousness at first hearing -- Board's treatment of transcript evidence from first hearing as though it were evidence in second hearing inappropriate -- Application allowed.