MB5-01618

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / No de dossier de la SAR : MB5-01618 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person who is the subject of the appeal XXXX XXXX Personne en cause Date of hearing November 12, 2015 Date de l'audience Appeal considered at Montréal, Quebec Appel instruit à Date of decision November 16, 2015 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Vincent Desbiens Conseil de la personne en cause Designated representative Ylenia Torres - PRAIDA Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION I. INTRODUCTION [1] XXXX XXXX, the appellant, who is a Haitian citizen and is 16 years old, is appealing against the decision of the Refugee Protection Division (RPD). She is submitting that the RPD made a number of errors in its decision to reject her refugee protection claim. [2] Ylenia TORRES, a social worker with the Regional Program for the Settlement and Integration of Asylum Seekers (PRAIDA), was previously appointed to represent the appellant, who is a minor, and, under the Refugee Appeal Division Rules (RAD Rules), this appointment is deemed to have been designated by the Division.1 II. DETERMINATION OF THE APPEAL [3] Under subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) allows the appeal, sets aside the RPD determination and substitutes the determination that should have been rendered, namely, that XXXX XXXX is a refugee under section 96 of the IRPA. III. BACKGROUND A. Summary of the alleged facts [4] In her memorandum, the appellant, who was born on XXXX XXXX XXXX 1999, who speaks French and Haitian Creole, and who is a Christian, presents the facts as follows: - In early XXXX 2014, when she returned from school, she discovered that the family home had been burglarized. Her father explained to her at that time that armed men had entered the home, but he did not provide any more details; - After this incident, her father entrusted her to a friend, Ms. XXXX. She has not seen her father since then, but he called her and told her not to reveal that she was his daughter; - Her mother and younger sister left Haiti several months before the burglary. She did not know why because her father refused to explain the situation to her; - Given this unstable situation and fearing for her life, she used a visit to Canada to the home of a family friend to claim refugee protection; - She has no family who could help her in Haiti, and she is convinced that if she had to return to her country, her father would not take care of her; therefore, she would be at the mercy of the violence against young women.2 [5] Besides her Basis of Claim Form (BOC Form),3 the appellant, then referred to as the minor claimant, filed documents before the RPD.4 B. RPD decision [6] The hearing of this refugee protection claim before the RPD was held on December 18, 2014 and February 17, 2015, and the decision to reject the refugee protection claim was rendered on March 24, 2015.5 [7] In the reasons for its decision, the RPD indicates that it took into account Chairperson's Guideline 3,6 as well as Chairperson's Guideline 8,7 and that the claimant was declared a vulnerable person and accommodations were made to the order of questioning and how she would be addressed. The RPD also allowed the filing of a psychological report8 in light of this vulnerability. [8] That said, the RPD found that the evidence provided in support of this claim was generally not credible.9 The RPD examined the following issues: [translation] [18] The claimant stated that she fears returning to Haiti because there would be no one to care for her. As a result, her safety would be at risk. In this context, it is important to understand the composition of her family. She stated that her mother disappeared, that her father abandoned her to the care of friends while he is in hiding, and that ties to her uncles, aunts, cousins and grandparents are practically non-existent. The panel will examine these issues one by one...10 [9] The RPD did not believe that the claimant's mother had disappeared and was living in the United States.11 It also did not believe that the claimant's father had abandoned her, was unable to care for her, seriously feared for himself and his family, had left his residence, and was in hiding.12 Finally, the RPD concluded that the claimant had, on a balance of probabilities, relatives whom she refused to acknowledge the existence of, although it did not know whether this refusal was caused by psychological problems and did not criticize her in any way in this regard. It explained that: [translation] [50] The composition of her family and the ties she has to them are questions at the heart of her refugee protection claim because she claimed that she would be abandoned if she had to return to her country.13 [10] Hence its final conclusion: [translation] [52] After reviewing all the evidence, the panel concludes that there is no serious possibility that the claimant would be persecuted in her country or that, on a balance of probabilities, she would be personally subjected to a danger of torture, a risk to her life or a risk of cruel and unusual treatment or punishment in her country."14 C. Grounds of appeal and decision sought [11] In her memorandum, the appellant submits that the RPD made a number of errors in its decision to reject her refugee protection claim.15 [12] She submits that the RPD erred by failing to analyze her credibility with a view to assessing the truthfulness of her testimony, and that, in doing so, it did not adequately analyze her refugee protection claim.16 [13] She submits, furthermore, that the RPD's analysis of the evidence is unreasonable, in particular, because it did not take into account the psychological report and assessed only her father's behaviour.17 [14] Additionally, she submits that the RPD's finding that it did not believe that her mother had disappeared and was living in the United States is based on faulty logic and is unreasonable.18 [15] She also submits that the RPD failed to take into account her father's previous behaviour and that it erred by concluding that he did not have a serious fear for his safety or for that of his family, and that he did not desert his home.19 [16] She finally submits that the RPD's finding regarding whether there are family members in Haiti who could care for her is unreasonable, because it does not take into account her explanations and because it was not found that she was not credible.20 [17] The appellant is requesting that the RAD set aside the RPD determination and allow her refugee protection claim, or refer the matter to the RPD for re-determination by a new member and give the directions that it considers appropriate.21 IV. ADMISSIBILITY OF DOCUMENTS PRESENTED ON APPEAL A. The appellant presented a document on appeal [18] In an application filed in accordance with rule 29 of the RAD Rules, the appellant requested that she be allowed to file a document that was not reasonably available when her memorandum was filed: [translation] 11. We respectfully submit that, for the review of this application, we should consider that the appellant is an unaccompanied minor. As a result, because of her age, the options for obtaining such evidence are very limited. Truthfully, she depends on the assistance of third parties. 12. Moreover, considering that Ms. XXXX left the family home without informing the appellant of her new residence, it was impossible for her to obtain this evidence herself. In short, she depended on the information given to her by her father. 13. Taking into account the appellant's age, as well as her lack of knowledge regarding her mother's whereabouts, we consider that the evidence that we are sending you was not available within the meaning of subsection 110(4) of the IRPA.22 B. Test for admissibility [19] The appellant made an application to the RAD regarding a document that was not provided with her record but that she wanted to use. In deciding whether to allow an application, the RAD must consider any relevant factors, including the document's relevance and the probative value and whether the person who is the subject of the appeal, with reasonable effort, could have provided the document with their record.23 [20] Subsection 110(4) states that the person who is the subject of the appeal may present to the RAD only evidence that arose after the rejection of their claim or that was not reasonably available, or that the person could not reasonably have been expected in the circumstances to have presented, at the time of the rejection. It should be noted that the time limit referred to in subsection 110(4) is the rejection of the appellant's refugee protection claim, not the hearing before the RPD. A party who wants to provide a document as evidence after a hearing but before a decision takes effect may make an application to the Division.24 [21] For now, the Federal Court decisions regarding the interpretation of subsection 110(4) of the IRPA provide at least two points of view that differ on certain aspects.25 The Federal Court of Appeal should rule on this matter soon.26 [22] That said, I am aware of the fundamental differences that exist between the pre-removal risk assessment (PRRA) process and the process of the appeal heard in this case. I willingly accept that the reasons strictly limiting the admissibility of new evidence in the context of a PRRA are mostly absent from those that apply to an appeal before the RAD, particularly given the truncated timeline for finalizing the refugee determination proceeding before the RPD.27 [23] While accepting that a full appeal before the RAD requires that the test for admissibility of evidence be sufficiently flexible to ensure that a proper appeal can occur and to afford the appellant some leeway in order to allow him or her to respond to the deficiencies raised by the RPD,28 relying on a recent Federal Court decision,29 I am of the opinion that the evidence must however satisfy the test for admissibility set out in subsection 110(4) of the IRPA. C. RAD decision regarding the admissibility of the document in question [24] Having taken into account the test for admissibility in relation to the document filed by the appellant, as well as the case law of the Federal Court on this topic, I conclude that the document filed as part of her appeal is admissible as evidence. Here is why. [25] The document in question is an affidavit dated May 5, 2015, and signed by XXXX XXXX, the appellant's mother, who attests that she has been living in XXXX XXXX Florida, since XXXX 2014; that she is indeed the mother of the appellant, whom she cannot care for her because of her personal and financial problems; and that she has been separated from the appellant's father since XXXX 2013.30 [26] I am of the opinion that the appellant should be allowed to use this document, even if it was not included in her record, because I am satisfied with her explanations that it was impossible to provide it earlier. Consequently, this document meets one of the criteria set out in subsection 110(4) of the IRPA.31 [27] That said, I carefully read the recent decision of Justice Gascon in which he indicates that, even if an appellant's evidence falls into one of the two categories of evidence covered by subsection 110(4) of the IRPA, the RAD still has the discretion to accept it or not.32 [28] Continuing my analysis of this document, I am of the opinion that, on one hand, it is relevant because it sheds new light on the record and contradicts the finding of the RPD, which did not believe that the appellant's mother had disappeared and was living in the United States. I am also of the opinion, on the other hand, that at this stage of the appeal process, there is nothing that undermines the credibility of this document.33 [29] The affidavit from the appellant's mother is numbered A-1. V. HEARING BEFORE THE RAD A. The appellant did not request a hearing before the RAD [30] In her application dated May 25, 2015, the appellant did not request that a hearing be held before the RAD.34 In a previous statement signed by her lawyer, the RAD was informed that the appellant was not requesting that a hearing be held under subsection 110(6) of the IRPA, but that, if the RAD concluded that a hearing should be held, she would want it to be held in French.35 B. Test under subsection 110(6) of the IRPA [31] The RAD Rules state that the record of the person who is the subject of the appeal must include, among other things, a written statement indicating whether the appellant is requesting that a hearing be held under subsection 110(6) of the IRPA, and a memorandum that includes full and detailed submissions regarding why the RAD should hold such a hearing if the appellant is requesting that a hearing be held.36 [32] Pursuant to subsection 110(6) of the IRPA, when evidence presented on appeal is found to be admissible, it should be determined whether that evidence raises a serious issue with respect to the credibility of the person who is the subject of the appeal, whether it is central to the decision with respect to the refugee protection claim, and whether it would justify allowing or rejecting the refugee protection claim. If the answer is yes, the RAD may then hold a hearing. C. RAD decision on whether to hold a hearing [33] Although I did not find, in the principal appellant's written statement or her memorandum, any specific request regarding the holding of a hearing before the RAD, such an omission cannot, in itself, prevent a hearing from being held and it is up to the RAD to determine whether the criteria set out in subsection 110(6) of the IRPA have been satisfied.37 [34] One of the determinative criteria is that one of the pieces of evidence filed as part of this appeal was deemed admissible.38 In this case, I considered that the affidavit signed by the appellant's mother was admissible based on one of the criteria set out in subsection 110(4) of the IRPA. I also found that, at this stage of the proceedings, this document seems credible. [35] I am of the opinion that this document raises a serious issue with respect to the credibility of the appellant in terms of whether, if she returned to Haiti, she would live without the support of family members. I am of the opinion that it is central to the decision with respect to the appellant's refugee protection claim and that it may justify allowing or rejecting the refugee protection claim. Consequently, I am of the opinion that it would be useful and necessary to hold a hearing. [36] The hearing before the RAD was held on Thursday, November 12, and gave an opportunity to hear the testimony of the appellant and that of her mother, of the friend whose home she is living at in Montréal, and of her designated representative. VI. APPROACH TO BE TAKEN IN THIS APPEAL A. The appellant's position [37] In her memorandum, the appellant does not specify the approach that should be adopted in this appeal. However, she submits that the RPD decision contains errors that require the intervention of the RAD.39 B. A brief summary of certain Federal Court decisions [38] In Huruglica, Justice Phelan states that the RAD must conduct an independent assessment of the claim for refugee protection in order to arrive at its own opinion and that it is not necessary, in order to trigger this remedial power, that the RAD must find error by the RPD on some standard of review basis.40 [39] In Balde, Justice Mosley states that the different strands in the jurisprudence to date within the Federal Court have all accepted the principle that the RAD must show deference to the RPD's findings of credibility, given that the RAD does not typically hold oral hearings and is therefore at a disadvantage in comparison to the RPD.41 C. Independent examination [40] Relying on the Federal Court decisions rendered to date, I am of the opinion that I must assess the relevant evidence and come to my own conclusions on the question of whether the appellant established that she has a well-founded fear of being persecuted if she had to return to Haiti. I am of the opinion that I do not have to show deference to the RPD's credibility findings because a hearing was held before the RAD and that, consequently, I am not at a disadvantage in comparison to the RPD in terms of the issues that were addressed at that time. VII. ANALYSIS OF THE MERITS OF THE APPEAL [41] Having analyzed all the evidence in this case, including the testimonies given before the RPD and the RAD, and having read the RPD decision, I conclude that the appellant established that she has a well-founded fear of being persecuted if she had to return to Haiti. Here is why. A. Consideration of Guideline 3 [42] When assessing the testimony of a minor, the RPD, like the RAD, must consider age, the best interest of the child and the fact that the child is a vulnerable person coming from a society that operates in a different cultural context than Canada. Moreover, it must avoid using the circular reasoning that Guideline 342 cannot compensate for a lack of credibility.43 [43] The psychological assessment report indicates that, for the appellant, the departure and disappearance of her mother has been incomprehensible for a long time, and that this has negatively affected her attachment to both her mother and younger sister.44 [44] Having listened to the appellant's testimony before the RPD45 and having heard her orally at the hearing before the RAD, I am of the opinion that she is credible when she states that she was informed neither of the interactions between her mother and father nor of the time and reasons why her mother decided to leave her father and live away from the family home with her younger sister. [45] That said, I am not entirely persuaded with regard to the allegations that the appellant's father is totally destitute and unable to care for her. In this regard, at the hearing on November 12, 2015, after asking the friend with whom the appellant is living in Montréal whether she had an authorization to care for her, I was presented with a notarized document dated October 15, 2014.46 However, in this document, the appellant's father states that he is a homeowner, residing and domiciled at XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX In terms of whether he is still an active businessman, I am of the opinion that the evidence is too weak to come to a definitive conclusion in this regard. [46] It should also be noted that, even if it were to be assumed that the appellant's credibility is not in question with regard to the burglary that allegedly occurred at the family home in XXXX 2014, the fact remains that simply being targeted by criminals because, in Haiti, they are a more well-to-do family than others, does not allow for the determination that a person is a "refugee" or even a "person in need of protection."47 [47] Regardless, the appellant has been living in Montréal since XXXX 2014. She seems to have adapted well to the family with whom she is staying and to the public school she attends. According to her testimony, which I find credible, it is clear that, until now, she had been living with little information on the life her father is living in Haiti and the life her mother and younger sister are living in the United States. [48] When reached by telephone, her mother testified at the hearing before the RAD. She confirmed, among other things, that when she and her former spouse separated, an agreement was reached that each of them would take custody of one of their two minor daughters. According to her testimony, the appellant's mother no longer works in Haiti and lives in XXXX at the home of an uncle and a brother who provide them with housing and food. At this hearing, she agreed to send her daughter's lawyer a copy of the full contents of her passport, which could make it possible to verify, on one hand, whether it is true that her American visa is expired and, on the other hand, whether it is true that she has not returned to Haiti since April or May 2014 and, consequently, is no longer active commercially and, today, is financially destitute. However, when I was preparing to sign this decision, that is, a few days after the hearing on November 12, 2015, I still had not received the copy of the appellant's mother's passport. [49] What is certain is that the appellant's mother was a businesswoman in her country and that she may still be one today. According to her testimony, she ran a XXXX XXXX and she travelled to Panama and Florida to purchase products there that she then sold at a business located outside XXXX XXXX XXXX. According to the documentary evidence, this type of commercial activity is common in Port-au-Prince.48 [50] Before coming to Canada, the appellant was attending school at XXXX XXXX XXXX XXXX, which welcomes girls XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, among others.49 Today, she is attending a public school XXXX XXXX XXXX XXXX, while the children of the friend with whom she is living are attending a private schoolXXXX XXXX XXXX XXXX. In her testimony before the RAD, when asked to identify the source of the money to care for the appellant, the friend with whom she is living, who is actually a childhood friend of the appellant's father, responded that social services was paying her the amounts in question. [51] At the hearing before the RPD, the appellant stated that, if she returned to Haiti, she fears that she would be unable to go to school, that she would not know where to live and that she would be killed because her parents are businesspeople and some people believe that they are wealthy.50 At the hearing before the RAD, she stated that she would be in danger because she would have no parents able to care for her and that she could become a slave at the hands of people who could target her. [52] In this case, I am of the opinion that the appellant did not clearly express a fear of being persecuted as a member of the particular social group of Haitian women and girls. That said, according to Guideline 3 it must be considered that a child may not be able to express a subjective fear of persecution in the same manner as an adult claimant. Therefore, it may be necessary to put more weight on the objective rather than the subjective elements of the claim.51 [53] However, the appellant clearly expressed her fear of finding herself more or less abandoned by her father and her mother if she had to return to Haiti. Having read the evidence on the record and heard the appellant's mother speak, I am of the opinion that the following facts have been established on a balance of probabilities. First, the fact that the appellant's mother and father no longer live together. Second, the fact that the father is the person who has custody of the appellant, custody that he has delegated to the friend with whom the appellant is living in Montréal. Third, the fact that there is doubt as to the willingness and the ability of the appellant's father to assume custody of his daughter if she were to return to Haiti. B. Consideration of Guideline 4 [54] The case law establishes that RPD members must consider Guideline 4,52 as appropriate. It is incumbent on RPD members to exhibit the knowledge required, and to apply it in an understanding and sensitive manner when deciding issues of violence against women.53 Although the RPD, like the RAD, must be particularly sensitive to the difficulty faced by testifying women who have been or who fear being victims of violence, Guideline 4 is not intended to serve as a cure for all deficiencies in the refugee protection claim or the documents submitted as evidence.54 [55] In this case, while the appellant did not clearly express a fear of being persecuted as a member of the particular social group of women and girls in Haiti, I am of the opinion that more weight should be granted to the objective factors than to the subjective factors of the refugee protection claim. [56] With regard to the objective fear55 of being persecuted as a member of the particular social group of Haitian women and girls, according to the case law, it must be analyzed while assessing the documentary evidence relating to the situation of Haitian women and girls. In a decision I rendered on March 25, 2015, I conducted an exhaustive analysis of the documentary evidence relating to this situation.56 In that case, as in this matter, it is the June 27, 2014, version of the National Documentation Package on Haiti that was submitted as evidence. Consequently, my analysis of the objective fear of persecution of a Haitian woman or girl is being conducted using the same documentary evidence and it applies to this case in all aspects.57 [57] That being said, I am of the opinion that it is useful and necessary to remember that an claimant does not have to prove that persecution would be more likely than not. Rather, the claimant must establish that he or she has good grounds for fearing persecution for one of the reasons specified in the IRPA.58 He or she must be targeted for persecution in some way, either personally or as a member of a particular social group.59 The particular social group in question is that made up of Haitian women and girls, not only those living in camps for displaced persons, in tents or in certain neighbourhoods. It seems clear to me that Haitian women and girls living in camps for displaced persons, in tents or in certain neighbourhoods do not constitute a particular social group given that this is not a group that is defined by an innate or unchangeable characteristic, whose members voluntarily associate for reasons so fundamental to their human dignity or whose members are associated by a former voluntary status, unalterable due to its historical permanence.60 [58] Even taking into account the efforts of the Haitian authorities to limit violence against women and girls, I conclude that the fear of being subjected to sexual violence is objectively well-founded.61 This fear, according to the documentary evidence, extends throughout all Haiti, and consequently, in this case, there is no need to consider whether an IFA is available to the appellant. Finally, according to the documentary evidence, the appellant cannot expect adequate protection from the authorities in her country. VIII. CONCLUSION [59] For these reasons, I set aside the RPD determination and substitute the determination that should have been rendered, namely, that XXXX XXXX is a refugee under section 96 of the IRPA. [60] The appeal is allowed. Alain Bissonnette Me Alain Bissonnette November 16, 2015 Date IRB translation Original language: French 1 Refugee Appeal Division Rules, SOR/2012-257, subrule 23(1). 2 Appellant's memorandum, May 1, 2015, at paragraphs 1.4 to 1.9, pages 19, 20 and 21 of the appeal record. 3 The BOC Form is reproduced at pages 13 to 24 of the RPD record. 4 The list of these documents is reproduced at page 110 of the RPD record. The documents themselves are produced at pages 111 to 220 of the RPD record. 5 RPD's reasons and decision, pages 3 to 12 of the RPD record. 6 Immigration and Refugee Board of Canada (IRB), Chairperson's Guideline 3: Child Refugee Claimants - Procedural and Evidentiary Issues, effective September 30, 1996. This guideline is accessible on the IRB website: http://www.irb-cisr.gc.ca/Eng/BoaCom/references/pol/GuiDir/Pages/GuideDir03.aspx 7 IRB, Chairperson's Guideline 8: Concerning Procedures with Respect to Vulnerable Persons Appearing Before the Immigration and Refugee Board of Canada, effective December 15, 2006, and amended on December 15, 2012. This guideline is accessible on the IRB website: http://www.irb-cisr.gc.ca/Eng/BoaCom/references/pol/GuiDir/Pages/GuideDir08.aspx. 8 RPD reasons and decision, at paragraph 16, pages 5 and 6 of the RPD record. 9 Idem, at paragraph 51, page 11 of the RPD record. 10 Idem, at paragraph 18, page 6 of the RPD record. 11 Idem, at paragraphs 19 to 28, pages 6, 7 and 8 of the RPD record. 12 Idem, at paragraphs 29 to 40, pages 8, 9 and 10 of the RPD record. 13 Idem, at paragraphs 41 to 50, pages 10 and 11 of the RPD record. 14 Idem, at paragraph 52, page 12 of the RPD record. 15 Appellant's memorandum, pages 19 to 29 of the appeal record. 16 Idem, at paragraph 2.1, page 20 of the appeal record. 17 Idem, at paragraphs 2.2 to 2.16, pages 20 to 23 of the appeal record. 18 Idem, at paragraphs 2.17 to 2.25, pages 23 and 24 of the appeal record. 19 Idem, at paragraphs 2.26 to 2.35, pages 25 and 26 of the appeal record. 20 Idem, at paragraphs 2.36 to 2.45, pages 26, 27 and 28 of the appeal record. 21 Idem, page 29 of the appeal record. 22 Application to file a document that was not previously provided (rules 29 and 37 of the RAD Rules), May 25, 2015, 3 pages, which is accompanied by an affidavit signed by the appellant's designated representative. 23 RAD Rules, SOR/2012-257, subrule 29(4). 24 RPD Rules, SOR/2012-256, subrule 43. 25 In this regard, read Shukurov v. Canada (Minister of Citizenship and Immigration), No. IMM-6058-14, Fothergill, August 6, 2015; 2015 FC 949, at paragraph 24; and Abdi v. Canada (Minister of Citizenship and Immigration), No. IMM-5580-14, Boswell, July 24, 2015; 2015 FC 906, at paragraph 13. 26 Minister of Citizenship and Immigration v. Parminder Singh, No. A-512-14, in which the hearing took place on October 8, 2015. 27 Olowolaiyemo v. Canada (Minister of Citizenship and Immigration), No. IMM-7767-14, Gascon, July 22, 2015; 2015 FC 895, at paragraph 27. Also read Sow v. Canada (Minister of Citizenship and Immigration), No. IMM-1011-14, Barnes, March 9, 2015; 2015 FC 295, at paragraph 16. 28 Olowolaiyemo, at paragraph 28. Also read Ajaj v. Canada (Minister of Citizenship and Immigration), No. IMM-5604-14, Gascon, July 28, 2015; 2015 FC 928, at paragraph 61. 29 Deri v. Canada (Minister of Citizenship and Immigration), No. IMM-7050-14, Strickland, September 2, 2015; 2015 FC 1042, at paragraphs 48, 51, 55 and 60. 30 Affidavit before a notary signed by XXXX XXXX, May 5, 2015, 1 page, accompanying the application dated May 25, 2015, supra, footnote 22. 31 Olowolaiyemo, supra, footnote 27, at paragraphs 17, 18 and 19. 32 Idem, at paragraph 20. 33 In Ismailov v. Canada (Minister of Citizenship and Immigration), No. IMM-6839-14, Strickland, August 13, 2015; 2015 FC 967, at paragraphs 61 and 62, the Federal Court indicates that the RAD may analyze the credibility and the relevance of a document filed on appeal. 34 Supra, footnote 22. 35 Written statement signed by Vincent Desbiens, page 16 of the appeal record. 36 RAD Rules, SOR/2012-257, subrule 3(3). 37 Zhuo v. Canada (Minister of Citizenship and Immigration), No. IMM-2693-14, O'Reilly, July 27, 2015; 2015 FC 911, at paragraph 11: "...Where the conditions for holding an oral hearing are present, the RAD should generally be required to convene one. Obviously, the RAD retains a discretion on this question but that discretion must be exercised reasonably in the circumstances. In particular, the mere fact that a party has not requested a hearing will generally not be sufficient reason to justify a refusal to convene one when the circumstances appear to require it. While the RAD rules allow an appellant to request a hearing, IRPA does not actually impose a burden either to request, or to satisfy the RAD that the circumstances merit, an oral hearing (see Refugee Appeal Division Rules, SOR/2012-257, Rule 5(2)(d)(iii). The onus rests with the RAD to consider and apply the statutory criteria reasonably." 38 Deri v. Canada (Minister of Citizenship and Immigration), No. IMM-7050-14, Strickland, September 2, 2015; 2015 FC 1042, at paragraph 51: "... Section 110(6) permits the RAD to hold a hearing if it is of the opinion that there is new documentary evidence, as referenced in s 110(3), that meets the requirements of s 110(4), in which case the RAD will then consider whether that evidence raises serious credibility issues, is central to the claim and, if accepted, it would justify allowing or rejecting the claim. This suggests that the new evidence must first be found to be admissible." 39 Appellant's memorandum, at paragraph 2.46, page 28 of the appeal record. 40 Huruglica v. Canada (Minister of Citizenship and Immigration), No. IMM-6362-13, Phelan, November 7, 2014; 2014 FC 799, at paragraph 47. 41 Balde v. Canada (Minister of Citizenship and Immigration), No. IMM-3724-14, Mosley, May 12, 2015; 2015 FC 625, at paragraph 25. See also to that effect: Palden v. Canada (Minister of Citizenship and Immigration), No. IMM-4907-14, Locke, June 25, 2015; 2015 FC 787, at paragraphs 10 and 11. 42 Supra, footnote 6. 43 Manege v. Canada (Minister of Citizenship and Immigration), No. IMM-4966-13, Kane, April 17, 2014; 2014 FC 374, at paragraphs 28, 29 and 33. 44 D-8: Dr. Cécile Marotte, psychological assessment report, January 31, 2015, 6 pages, reproduced at pages 215 to 220 of the RPD record. 45 Recording of the hearing before the RPD on December 18, 2014, and recording of the hearing before the RPD on February 17, 2015. 46 A copy of this document was provided immediately after the hearing. This document is dated October 15, 2014, and was signed by the appellant's father and by XXXX XXXX XXXX XXXX, public notary XXXX XXXX XXXX XXXX XXXX XXXX. 47 Saint-Hilaire v. Canada (Minister of Citizenship and Immigration), No. IMM-3910-09, Mosley, February 18, 2010; 2010 FC 178. 48 SAR-3: Federico Neiburg et al., Les marchés du centre de Port-au-Prince. Morphologie, circuits, agents, gouvernance [the markets in central Port-au-Prince: morphology, transport, officers, governance], September 2012, 33 pages. 49 XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX 50 Recording of the hearing before the RPD on December 18, 2014, 17:45 to 20:00. 51 Supra, footnote 6, under II. Assessing the Evidence. 52 Supra, footnote 7. Orozco Hurtado v. Canada (Minister of Citizenship and Immigration), No. IMM-2081-07, Frenette, February 29, 2008; 2008 FC 270, at paragraph 51. 53 Aziza Mahamat Nour v. Canada (Minister of Citizenship and Immigration), No. IMM-8278-11, Scott, June 25, 2012; 2012 FC 805, at paragraph 37; Higbogun v. Canada (Minister of Citizenship and Immigration), No. IMM-2921-09, Russell, April 23, 2010; 2010 FC 445, at paragraphs 55 to 58. 54 Manege v. Canada (Minister of Citizenship and Immigration), No. IMM-4966-13, Kane, April 17, 2014; 2014 FC 374, at paragraphs 29 to 32. 55 To discharge the burden of proving that he or she meets the definition of a refugee, a refugee protection claimant needs to prove, on a balance of probabilities, that he or she has a reasonable subjective fear of persecution. A subjective fear of persecution is based on the assessment of the claimant's credibility while the objective fear is usually established by documentary evidence regarding the country conditions. Alvarez Contreras v. Canada (Minister of Citizenship and Immigration), No. IMM4087-08, Beaudry, April 23, 2009; 2009 FC 398, at paragraph 16. 56 X (Re), 2015 CanLII 34104 (CA IRB), File MB5-00903, at paragraphs 42 to 70. This decision is available on the CanLII website: http://www.canlii.org/en/ca/irb/doc/2015/2015canlii34104/2015canlii34104.html. 57 Rather than repeating this analysis here, I am of the opinion that I may integrate it into this decision by simply referring to the relevant paragraphs, namely, paragraphs 42 to 70, as indicated in the previous footnote. 58 Parampsothy v. Canada (Minister of Citizenship and Immigration), No IMM-421-12, Mandamin, August 16, 2012; 2012 FC 1000, at paragraph 24. Read also Mugadza v. Canada (Minister of Citizenship and Immigration), No. IMM-1324-07, Mandamin, January 30, 2008; 2008 FC 122, at paragraphs 20 to 22. 59 Osama Fi v. Canada (Minister of Citizenship and Immigration), No. IMM-2091-06, Martineau, September 19, 2006; 2006 FC 1125, at paragraphs 13, 14 and 16. 60 Under Membership in a Particular Social Group, Guideline 4 refers to the Supreme Court of Canada's decision in Ward, [1993] 2 S.C.R. 689. Supra, footnote 6. 61 Sukhu v. Canada (Minister of Citizenship and Immigration), No. IMM-3273-07, de Montigny, April 3, 2008; 2008 FC 427, at paragraph 25. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB5-01618 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / No de dossier de la SAR : MB5-01618 18