MB3-03455

RAD File No. / No de dossier de la SAR : MB3-03455 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Appellant(s) XXXX XXXX XXXX Appelant(e)(s) Appeal considered / heard at Montréal, Quebec Appel instruit à Date of Decision December 3, 2013 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the Appellant(s) Me Stéphanie Valois Conseil(s) du (de la/des) Appelant(e)(s) Designated Representative(s) XXXX XXXX XXXX Représentant(e)(s) désigné(e)(s) Counsel for the Minister N/A Conseil du (de la) ministre I. INTRODUCTION [1] XXXX XXXX XXXX, the appellant, a citizen of Cambodia and a minor, is appealing against the decision of the Refugee Protection Division (RPD), alleging that it rendered a decision based on errors in the assessment of his credibility and that it disregarded the documentary evidence. [2] XXXX XXXX from the agency PRAIDA was previously designated to act as his representative, and, under subrule 23(1) of the Refugee Appeal Division (RAD) Rules, the representative is deemed to have been designated by the RAD. The duties of the designated representative are listed in Guideline 3: Child Refugee Claimants-Procedural and Evidentiary Issues.1 II. DETERMINATION OF THE APPEAL [3] Under subsection 111(1) of the Immigration and Refugee Protection Act (the Act), the RAD allows the appeal and sets aside the RPD's determination and substitutes it with the determination that should have been made, namely, that XXXX XXXX XXXX is a "Convention refugee" under section 96 of the Act. III. BACKGROUND A. Basis of the claim [4] In his Basis of Claim Form (BOC Form), which he signed on May 10, 2013, and which his designated representative countersigned on July 23, 2013, the appellant stated that he is a citizen of Cambodia, born on XXXX XXXX, 1996, and that his father, mother and sister were still living in Cambodia at that time.2 He also stated that, in 1998, the United Nations High Commissioner for Refugees (UNHCR) accepted him, his father and his mother as refugees.3 [5] In his BOC Form, the appellant stated that, if he had to return to his country, Cambodia, he would risk being kidnapped or, in the worst-case scenario, killed by secret agents of Hun Sen and his party (which is currently in power), the Cambodian People's Party (CPP). They would want to use him as a bargaining chip to limit the activities of his parents and grandfather with an opposition party in Cambodia, the Cambodia National Rescue Party (CNRP), led by Sam Rainsy.4 [6] In his BOC Form, the appellant stated that, on XXXX XXXX, 2010, he was attacked by two men as he was leaving school to go home, but his grandfather's bodyguard intervened and scared off the attackers. He also stated that, on XXXX XXXX, 2011, he was again attacked by two men, but his grandfather's bodyguard intervened again, and the attackers did not manage to kidnap him.5 [7] In his BOC Form, the appellant stated that, in XXXX 2011, secret agents from the CPP tried to kill his father but did not succeed. He also stated that, in XXXX 2011, threats were made against his grandfather that if all the members of the family did not align themselves with the CPP, they would suffer the consequences. That is why his family decided to send him out of the country to ensure his safety, although they continue to oppose Hun Sen.6 [8] In his BOC Form, the appellant stated that his grandfather and parents never sought help from the Cambodian authorities because the police and the judiciary in Cambodia work for the CPP and are used to go after members of the opposition.7 He also stated that he did not move to another part of his country because, to do that, he would have had to register and if he failed to register, he would have been accused of living illegally in Cambodia. He also stated that the local authorities were officials with the party in power.8 [9] In his BOC Form, the appellant stated that he left his country on XXXX XXXX, 2011, not before and not after, because after he was attacked in XXXX 2011, he needed a visa to come to Canada, which he only obtained in XXXX XXXX XXXX 2011.9 [10] In his BOC Form, the appellant stated that he arrived in Montréal on XXXX XXXX, 2011, and continued his studies. He also stated that, in the context of the election of July 28, 2013, Hun Sen and his party regularly threatened to kill his grandfather and his children in order to eliminate the opposition party, which prompted his grandparents and parents not to allow him to return to Cambodia so as to keep Hun Sen and his henchmen from trying to kill him; this prompted him to claim refugee protection in Canada in May 2013.10 B. RPD decision [11] The RPD hearing was held on July 23, 2013. In its decision, dated August 28, 2013, after identifying the main issues as being the appellant's identity, the credibility of his allegations of a fear of persecution and the possibility of being considered a refugee sur place, the RPD rejected the appellant's claim for refugee protection.11 [12] In its reasons for decision, the RPD explained why it was satisfied as to the appellant's identity.12 After describing the appellant's allegations about the attacks on him, the RPD explained that, without sufficient evidence, it could not conclude that the events the appellant described were in fact politically motivated.13 [13] In its reasons for decision, the RPD concluded that there was no indication that the members of the appellant's family were being persecuted in Cambodia.14 It also found that the appellant had not become a "refugee sur place."15 C. Grounds of appeal and remedy sought [14] In his memorandum,16 the appellant submits that the RPD's decision contains many errors in its assessment of his credibility and that it disregarded the documentary evidence he submitted. [15] The appellant requests that the RAD set aside the determination of the RPD and grant him refugee status.17 IV. ADMISSIBILITY OF EVIDENCE PRESENTED ON APPEAL A. Evidence presented by the appellant on appeal [16] According to a written statement signed by the appellant's lawyer, which is part of the appeal record, some new evidence has been filed. These documents were not available at the time of the hearing that was held on July 23, 2013, and they relate to events that occurred after the election in July 2013.18 The appeal was perfected on October 7, 2013. [17] The appellant submitted the following evidence in his appeal record:19 i) A document titled "Certificate of Denial," signed in XXXX XXXX by XXXX XXXX on August 26, 2013; ii) A letter signed in XXXX XXXX by XXXX XXXX XXXX XXXX of the CNRP on September 20, 2013; iii) An article titled "Discontent Helps Bolster Opposition," published on the site of the newspaper The Cambodia Daily and dated August 5, 2013; and iv) A decision of the National Election Committee identifying the candidates elected to the National Assembly of the Kingdom of Cambodia in the July 28, 2013, election. [18] In the appellant's memorandum, his lawyer states that, since the RPD rendered its decision, the results of the election have been released and that the letter from XXXX XXXX, XXXX XXXX XXXX CNRP, clearly indicates that the appellant's father was falsely accused by the CPP, the ruling party in Cambodia, simply to pressure the appellant's family to cease their political activities.20 She also states that some articles from the Cambodian media on the political situation are also included in the record. She argues that this new evidence is relevant and supports the appellant's claim. [19] The Immigration and Refugee Board of Canada (IRB) received other evidence on October 25, 2013, along with a letter from the appellant's lawyer stating that this was new information within the meaning of subsection 110(4) of the Act.21 B. Test for admissibility [20] Subsection 110(4) of the Act provides that the person who is the subject of the appeal may present 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 is worth noting that, in terms of a deadline, subsection 110(4) refers to the rejection of the appellant's refugee protection claim rather than the hearing before the RPD. After the RPD hearing, but before a decision takes effect, a party wishing to submit a document as evidence must make an application to that effect.22 110. (4) On appeal, the person who is the subject of the appeal may present 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. 110. (4) Dans le cadre de l'appel, la personne en cause ne peut présenter que des éléments de preuve survenus depuis le rejet de sa demande ou qui n'étaient alors pas normalement accessibles ou, s'ils l'étaient, qu'elle n'aurait pas normalement présentés, dans les circonstances, au moment du rejet. [21] The RAD Rules require that the record of the person who is the subject of the appeal must contain, among other things, a written statement indicating whether the appellant is relying on any evidence referred to in subsection 110(4) of the Act, as well as a memorandum that includes full and detailed submissions regarding how that evidence meets the requirements of that subsection and how it relates to the appellant.23 [22] Since the wording of subsection 110(4) of the Act is very similar to the wording concerning new evidence admissible in a pre-removal risk assessment (PRRA), I am of the opinion that it is necessary to use, mutatis mutandis, the factors developed by the case law concerning PRRAs; to address the issues identified particularly in Raza with regard to the credibility, relevance, newness and materiality of the evidence presented; and to make a determination as to whether the evidence presented on appeal is admissible or whether, on the contrary, it must be excluded from the appeal.24 [23] The fact that evidence corroborates facts contradicts RPD findings or clarifies the evidence before the RPD does not make it "new evidence" within the meaning of subsection 110(4) of the Act. If that were the case, refugee protection claimants could split their evidence and present evidence before the RAD at the appeal stage that could have been presented at the start, before the RPD.25 In my opinion, this is exactly what subsection 110(4) of the Act seeks to prevent. C. RAD's decision on admissibility i) "Certificate of Denial," signed in XXXX XXXX by XXXX XXXX on August 26, 2013 [24] The English translation of this document reads as follows: On XXXX XXXX 2013 there were information posed on Facebook that were untrue and slandering me Mr. XXXX XXXX an elected member of parliament for Constituency of XXXX XXXX Province on second place. The announcement was that gas stations SOKIMEX would be set on fire against the use of tanks and military forces to crack down opposition supporters. The artificial and manipulated information were aiming at clearing or distracting the previous information which raised by source from abroad stating that Hanoi's Government instructed Gas Company SOKIMEX to prepare some Gas Stations and dedicate at any cost in the event that the Cambodian People Party and the Cambodia National Rescue Party would confront each others in order to frame the Cambodia National Rescue Party and its supporters. Then it will be used any action for the future of Vietnam and Cambodia People Party. We would like to appeal to the National and International Communities to take extra-precaution on such a scapegoat information or dirty tactic to frame people and Cambodia National Rescue Party so that we can avoid falling into traps of foreign aggressor and its clan. I would like also to take this opportunity to appeal to all competent authorities and Gas Company SOKIMEX to take full responsibility unilaterally in the event that something bad happening in the future. 26 [25] This document is dated August 26, 2013, that is, two days before the rejection of the appellant's refugee protection claim. In the context of a PRRA, when a document is dated before the RPD decision, the case law confirms that the officer can exclude the document when the person who is the subject of the appeal failed to demonstrate that this document was not reasonably available or that the person could not reasonably have been expected in the circumstances to present it before the RPD.27 That being said, the newness of documentary evidence cannot be tested solely by the date on which the document was created. What is important is the event or circumstance sought to be proved by the documentary evidence 28 This document relates to events that occurred on XXXX XXXX, 2013, that is, just a couple of days before the rejection of the appellant's refugee protection claim. [26] Neither the written statement nor the appellant's memorandum provides full and detailed submissions as to why such a document was not reasonably available in the days before the RPD's rejection of the appellant's refugee protection claim or why he did not present it to the RPD before the rejection of his claim. [27] Regardless, in the appellant's memorandum, his lawyer argued that the new evidence filed for the appeal record is relevant and supports the appellant's claim. I, however, do not see how this document is relevant. It contains no information capable of proving or disproving a fact that is directly relevant to the appellant's claim for refugee protection, whether it be to his fear of persecution in his country or to a personalized risk to his life or to a risk of cruel and unusual treatment or even a danger of torture. [28] In the context of a PRRA, in the case law, a positive answer to any one of the five grounds identified in Raza is sufficient to determine whether evidence is to be excluded or is inadmissible.29 [29] That said, although it is not necessary to do so, consideration could also be given, at this point in the appeal process, to whether this evidence is material. In fact, in my opinion, this document does not contain any information that, if it had been made available to the RPD, would have probably caused the appellant's refugee protection claim to have succeeded. [30] For these reasons, I conclude that the document titled "Certificate of Denial" is inadmissible in the context of this appeal. ii) Letter from XXXX XXXX XXXX XXXX XXXX XXXX CNRP, dated September 20, 2013 [31] This letter reads as follows: The Cambodia National Rescue Party (CNRP) would like to appeal to the relevant Canadian Authorities in favour of Mr XXXX XXXX XXXX XXXX whose father is Mr. XXXX XXXX, an elected member of parliament for the constituency of XXXX XXXX province of Cambodia. Mr. XXXX XXXX has dedicated his life to the cause of Human Rights and Democracy in Cambodia. He has been framed by the ruling Cambodian People's Party (CPP) that he incited people in his constituency to use violence against the interest of the ruling CPP. It is a well-known dirty scheme used by the ruling CPP in order to arrest Mr. XXXX XXXX and his family and discourage him from joining the CNRP. The ruling CPP has terrorized Mr. XXXX XXXX and his family for years because of their involvement in political activities. The United Nations High Commissioner for Refugees has recognized Mr. XXXX XXXX and his family as political refugees on 15 October 1998. The CNRP would like to appeal to the Canadian Authorities to provide Mr. XXXX XXXX XXXX asylum so that he can live a safe and normal life without suffering from the involvement of his family in the fight for Democracy and Human Rights in Cambodia.30 [32] This letter is dated September 20, 2013. That said, it contains information on events that occurred over a long period of time, because it states that the ruling party in Cambodia has terrorized XXXX XXXX and his family for years because of their involvement in politics. Consequently, this information does not relate to events after the rejection of the appellant's refugee protection claim. [33] For these reasons, I am of the opinion that the letter from XXXX XXXX XXXX XXXX XXXX XXXX CNRP, dated September 20, 2013, is inadmissible in the context of this appeal. iii) Article entitled "Discontent Helps Bolster Opposition" published on the site of the newspaper The Cambodia Daily and dated August 5, 2013 [34] This article, published before the rejection of the appellant's refugee protection claim, contains information on the results of the latest election in Cambodia, which was held on July 28, 2013.31 This information includes events that occurred and journalistic analyses that were written before the rejection of the appellant's refugee protection claim. [35] Neither the written statement nor the appellant's memorandum presents full and detailed submissions as to why such a document was not reasonably available in the days before the RPD's rejection of the appellant's refugee protection claim or why he did not present it to the RPD before the rejection of his claim, and at this stage of the appeal process, the appellant bears the burden of proof when he is asking that a document be declared admissible.32 [36] For these reasons, I conclude that this article is inadmissible in the context of this appeal. iv) Decision of the National Election Committee identifying the candidates elected to the National Assembly of the Kingdom of Cambodia in the July 28, 2013, election [37] This official document is dated XXXX XXXX, 2013, but it relates to events that occurred before the rejection of the appellant's refugee protection claim, notably, XXXX XXXX XXXX XXXX XXXX XXXX Cambodia's national assembly in the July 28, 2013, election.33 In addition, this fact was brought before the RPD, which considered it in its decision. [38] For these reasons, I conclude that this decision of the National Election Committee is inadmissible in the context of this appeal. v) Evidence received by the IRB on October 25, 2013 [39] On October 25, 2013, about 18 days after the appeal was perfected, the IRB received other evidence, along with a letter from the appellant's lawyer stating that this was new information within the meaning of subsection 110(4) of the Act.34 [40] Under the RAD Rules, a person who is the subject of an appeal who does not provide a document with the appellant's record must not use the document in the appeal unless allowed to do so by the RAD35 after making an application under rule 37.36 [41] In this case, no application was made to the RAD under rule 37. [42] For these reasons, I conclude that the evidence received by the IRB on October 25, 2013, is inadmissible in the context of this appeal. [43] In addition, except for the letter signed by the appellant's father and dated October 10, 2013, these documents are newspaper articles analyzing the results of the latest election in Cambodia, which took place on July 28, 2013. These articles contain no information capable of proving or disproving a fact that is directly relevant to the appellant's claim for refugee protection, whether it be to his fear of persecution in his country or to a personalized risk to his life or of being subjected to cruel and unusual treatment or even torture. [44] With regard to the letter signed by the appellant's father and dated October 10, 2013,37 it contains information on events that occurred over a long period of time, because it states that the ruling party in Cambodia has terrorized XXXX XXXX and his family for years because of their involvement in politics. It also refers to the fact that, after his election, on July 28, 2013, the appellant's father and family applied for asylum at the United States embassy on security grounds. The letter does not, however, indicate exactly when the appellant's father and family applied for asylum at the United States embassy or what happened after they filed their applications. Nearly a month passed between July 28, 2013, and the rejection of the appellant's refugee protection claim on August 23, 2013. [45] Neither the written statement nor the appellant's memorandum presents full and detailed submissions as to why such a document was not reasonably available in the days before the RPD's rejection of the appellant's refugee protection claim or why he did not present it to the RPD before the rejection of his claim. At this stage of the appeal process, the appellant bears the burden of proof when he is asking that a document be declared admissible.38 [46] Even if the necessary authorization under the RAD Rules had been obtained so that this evidence could be considered, I conclude that, for the reasons just provided, this evidence is inadmissible in the context of this appeal. V. HEARING BEFORE THE RAD A. The appellant requested a hearing [47] The RAD Rules provide that the record of the person who is the subject of the appeal must contain, among other documents, a written statement indicating whether the appellant is requesting that a hearing be held under subsection 110(6) of the Act, 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.39 [48] In a written statement signed by the appellant's lawyer, which forms part of the appeal record, the RAD is being asked to hear the appellant, the main issue being the appellant's credibility. In this written statement, the appellant's lawyer argues that appeals to the RAD are de novo appeals and that the RAD must conduct its own assessment of the appellant's credibility, which it can do by having the appellant appear at a hearing.40 [49] I do not share the opinion of the appellants' lawyer that the RAD can hold de novo appeals. In this respect, it is appropriate to point out that under subsection 110(3) of the Act, the RAD generally proceeds without holding a hearing, on the basis of the RPD record: 110. (3) Subject to subsections (3.1), (4) and (6), the Refugee Appeal Division must proceed without a hearing, on the basis of the record of the proceedings of the Refugee Protection Division, and may accept documentary evidence and written submissions from the Minister and the person who is the subject of the appeal and, in the case of a matter that is conducted before a panel of three members, written submissions from a representative or agent of the United Nations High Commissioner for Refugees and any other person described in the rules of the Board. 110. (3) Sous réserve des paragraphes (3.1), (4) et (6), la section procède sans tenir d'audience en se fondant sur le dossier de la Section de la protection des réfugiés, mais peut recevoir des éléments de preuve documentaire et des observations écrites du ministre et de la personne en cause ainsi que, s'agissant d'une affaire tenue devant un tribunal constitué de trois commissaires, des observations écrites du représentant ou mandataire du Haut-Commissariat des Nations Unies pour les réfugiés et de toute autre personne visée par les règles de la Commission. B. Subsection 110(6) test [50] Under subsection 110(6) of the Act, when evidence presented on appeal is found to be admissible, it should be determined whether it 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 justifies allowing or rejecting the refugee protection claim. If the answer is yes, the RAD may then hold a hearing. 110. (6) The Refugee Appeal Division may hold a hearing if, in its opinion, there is documentary evidence referred to in subsection (3) (a) that raises a serious issue with respect to the credibility of the person who is the subject of the appeal; (b) that is central to the decision with respect to the refugee protection claim; and (c) that, if accepted, would justify allowing or rejecting the refugee protection claim. 110. (6) La section peut tenir une audience si elle estime qu'il existe des éléments de preuve documentaire visés au paragraphe (3) qui, à la fois : a) soulèvent une question importante en ce qui concerne la crédibilité de la personne en cause ; b) sont essentiels pour la prise de la décision relative à la demande d'asile ; c) à supposer qu'ils soient admis, justifieraient que la demande d'asile soit accordée ou refusée, selon le cas. C. No cause to hold a hearing before the RAD [51] In this case, having previously found the evidence the appellant presented as part of the appeal process to be inadmissible, I find that no hearing should be held before the RAD. VI. STANDARDS OF REVIEW A. The particular context of the RPD and the RAD [52] In the appellant's memorandum, his lawyer argues that the RAD can hold de novo appeals; that, as a specialized division, it owes no particular deference to the RPD; and that, unlike the Federal Court, it must analyze the evidence brought before it and come to its own conclusions. She also argues that, because of the errors in the RPD decision, the RAD, as an appeal tribunal, has no choice but to perform its own assessment of the appellant's credibility.41 [53] With all due respect for these arguments presented by the appellant's lawyer, in my opinion, the roles of the RAD and the RPD should be looked at differently. [54] The RAD is, of course, not a court of law, and does not review RPD decisions, but rather hears appeals in an administrative and non-judicial context. The RPD and the RAD are both part of the Immigration and Refugee Board (IRB), but they are two distinct divisions.42 Sections 162 to 169 of the Act contain the provisions that apply to them both, particularly that each "has, in respect of proceedings brought before it under this Act, sole and exclusive jurisdiction to hear and determine all questions of law and fact, including questions of jurisdiction";43 that the members of both divisions have the powers and authority of a commissioner and may do any other thing they consider necessary to provide a full and proper hearing;44 and that hearings before both divisions are held in the absence of the public, although each may conduct a proceeding in public, taking any other measure that it considers necessary to ensure the appropriate access to the proceedings.45 Sections 169.1 to 170.2 of the Act are specific to the RPD, while sections 171 and 171.1 are specific to the RAD. [55] In their respective roles, the RPD and the RAD must deal with whether or not to grant refugee protection to persons who make a claim. They are therefore a part of the Canadian refugee protection process under the Act, which governs them and whose objectives include establishing fair and efficient procedures that will maintain the integrity of the system, while upholding respect for the human rights and fundamental freedoms of all human beings.46 [56] The main role of the RPD is to hold hearings in order to determine whether refugee protection claimants are "Convention refugees" or "persons in need of protection." In disposing of a claim for refugee protection by holding a hearing, the RPD is able to see and question the refugee protection claimants, which gives it a significant advantage with respect to making findings of fact and assessing the credibility of refugee protection claimants. [57] Under subsection 110(1) of the Act, a person or the Minister may appeal, on a question of law, of fact or of mixed law and fact, to the RAD against a decision of the RPD to allow or reject the person's claim for refugee protection. However, under subsection 110(3) of the Act, the RAD generally proceeds without a hearing, on the basis of the record of proceedings of the RPD. B. Right to appeal and deference to RPD decisions [58] When analyzing the respective roles of two administrative tribunals and deciding which standard of review the Law Enforcement Review Board should apply in determining an appeal against a decision made by the officer tasked with hearing a complaint about a police officer's conduct, the Alberta Court of Appeal noted that the mere presence of a right of appeal-including within an administrative structure-in no way means that no deference to the first-level decision-maker is called for.47 [59] In its decision, the Court of Appeal referred to the example of the relationship established between a trial judge and an appeal judge: The presumption underlying the structure of our court system is that a trial judge is competent to decide the case before him or her, and that a just and fair outcome will result from the trial process. Frequent and unlimited appeals would undermine this presumption and weaken public confidence in the trial process. An appeal is the exception rather than the rule.48 [60] In citing the Supreme Court of Canada, the Court of Appeal underscored the importance of promoting the autonomy of the proceeding and its integrity, adding that the same principle applies within administrative structures: The same principle applies to the hearings before the presiding officers. If the Board was to continue to routinely rehear all matters on a de novo basis, and to extend no deference whatsoever to the decisions of the presiding officers, that would only undermine the apparent integrity of those hearings. As previously stated, that is inconsistent with the hybrid scheme of the Act. As the appellant noted, that approach undermines those hearings to the point that they become almost academic, and call into question the need of the interested parties to even participate in them. The hearing would be reduced to a type of preliminary inquiry.49 [61] In my opinion, the expertise and advantageous position of first-level decision-makers should also be recognized, as the Supreme Court did with respect to trial judges: The trial judge is better situated to make factual findings owing to his or her extensive exposure to the evidence, the advantage of hearing testimony viva voce, and the judge's familiarity with the case as a whole. Because the primary role of the trial judge is to weigh and assess voluminous quantities of evidence, the expertise and insight of the trial judge in this area should be respected.50 [62] Having considered the respective roles of the decision-makers, their particular expertise and the general economy of the proceedings in question, the Alberta Court of Appeal identified which standards of review the Law Enforcement Review Board should apply to the decision of the first-level decision-maker: [82] In conclusion, the decision of the Board to conduct a de novo hearing, and to assume that it owed no deference to the findings of the presiding officer was in error. The role of the Board is primarily to sit on appeal from the presiding officer. The Board is not a tribunal of first instance, and cannot simply ignore the proceedings before the presiding officer, and the conclusions reached by him. The focus of the appeal to the Board should be on its dual mandate of civilian oversight, and the correction of unreasonable results. [83] There is no general power to hold a de novo hearing in every case, and no requirement that a de novo hearing be held unless the parties consent to proceeding otherwise. Where a sufficient reason is shown or the issues on appeal warrant it, the Board has the power to admit fresh evidence. When sufficient cause is shown the Board can even rehear key evidence presented to the presiding officer. [84] The Board has a legitimate role to play in providing civilian oversight to the system of police discipline where oversight issues arise. The Board is not bound by the inferences and conclusions of the presiding officer, but it should be able to offer some articulable reason based in law, fact or policy when it interferes with a decision under appeal. The Board should proceed primarily from the record created by the hearing before the presiding officer. It should extend deference to the decision of the presiding officer on questions of fact, credibility, and technical policing issues. If the decision of the presiding officer was reasonable, the Board should not substitute its own view just because it might have come to a different conclusion. Where the appeal raises issues of acceptability of particular police conduct, or the integrity of the discipline process, the Board's mandate is more robust.51 [63] Relying on the reasoning of the Alberta Court of Appeal and on the factors identified in its analysis in Newton, and making the necessary adjustments to the particular context of the RPD and the RAD, I am of the opinion that, except for strict issues of law or of natural justice, we, the members of the RAD, must afford the same deference to RPD decisions. In fact, this is the same deference that courts of law are required to extend to first-level decision-makers in respect of a question of fact or a question of mixed law and fact. C. Standard of review to be applied in this case [64] In his memorandum, the appellant submits that the RPD's decision contains many errors in its assessment of his credibility and that it disregarded the documentary evidence he submitted.52 His lawyer argues that the RAD owes no deference to the decision of the RPD and that, given the errors in the decision of the RAD, it must conduct its own assessment of the appellant's credibility. She also argues that [translation] "the burden of proof must be that of erroneousness rather than that of unreasonableness of the judicial review."53 [65] The assessment of the appellant's testimony and evidence is a question of fact. Based on the jurisprudence of the Federal Court, I am of the opinion that the standard of review to be applied is that of reasonableness.54 [66] When reviewing a decision on the standard of reasonableness, the analysis must be concerned with the existence of justification, transparency and intelligibility within the decision-making process, and also with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.55 VII. ANALYSIS OF THE MERITS OF THE APPEAL Did the RPD err in its assessment of the appellant's credibility, particularly in not considering all the evidence? [67] In my opinion, the RPD made an unreasonable error in its assessment of the appellant's testimony and evidence when it concluded that he failed to establish that he had a well-founded fear of being persecuted in the future if he had to return to live in Cambodia. Here is why. [68] In his memorandum, the appellant criticizes the RPD for never ruling on his testimony but for nonetheless rejecting his refugee protection claim solely on the basis of his credibility, thereby disregarding the principles established in the jurisprudence: [translation] According to the jurisprudence, the first thing to consider in the assessment of credibility is certainly the testimony. We submit that the appellants [sic] testified in a very sincere manner, with no contradictions, omissions or exaggerations, as appears from his overall testimony. The transcript of the hearing or, failing that, listening to this transcription, will certainly persuade the appeal tribunal of this finding of credibility. Consideration must certainly be given to the fact that the appellant is a young man of 17 years of age. It is therefore normal that he might not know the dates and details of all the threats received by the members of his family. It is also normal that the form was written with the help of his father. Consequently, the only ground for refusal is that the tribunal does not believe that the appellant was attacked as a result of his family's political activities because he has no evidence to corroborate these facts."56 [69] In his memorandum, the appellant also criticizes the RPD for not considering the documentary evidence on the record: [translation] "[The appellant] had filed numerous documents, such as P6, the letter from the appellant's grandfather, stating that he had been threatened directly by Prime Minister Hun Sein as a result of his political activities and, more specifically, his public statements against the government. The documentary evidence established the political activities of his parents and his grandfather, and the panel did not contest that. The documentary evidence describes electoral fraud and serious human rights violations committed by the government of Hun Sen. Its attacks against the opposition have been condemned by all international organizations. At the hearing, the panel itself stated that "evidence is overwhelming about the persecution of a few opposition members."57 [70] In the appellant's memorandum, his lawyer submits that the RPD had no valid reason to doubt the appellant's testimony and that it could not base its decision on the absence of documentary evidence, particularly in relation to the identity of his attackers, and draw a negative inference as to the appellant's credibility: [translation] The refusal based on the absence of documentary evidence is therefore not valid because the panel had no reason to doubt the appellant's credibility. This principle has been reiterated numerous times by the superior courts."58 [71] In its reasons for decision, the RPD identified, as one of the main issues, the credibility of the appellant's allegations and the possibility of him being considered a refugee sur place. 59 [72] After having considered the fact that the appellant was a minor who left his country when he was just 15 years old, the RPD stated that because members of his family are prominent members of the political opposition in Cambodia, it had to analyze his refugee protection claim on the basis of membership in this family rather than on the basis of political opinion.60 It also stated that the question before it in this case was as follows: ... if the claimant returns to Cambodia, does he have a well-founded fear of persecution because his grandfather and parents are pre-eminent members of the opposition party, the SRP? Also, is he a "refugee sur place" because of the current political situation in Cambodia?61 [73] In its reasons for decision, the RPD stated that the determinative issue was credibility and that the lack of credibility on several elements central to the appellant's refugee protection claim resulted in it finding that the appellant lacks credibility overall.62 [74] In its reasons for decision, after describing the appellant's allegations about the attacks on him, the RPD explained that, without sufficient evidence, it could not conclude that the events the appellant described were in fact politically motivated. That being said, the RPD did not find that the appellant was not credible in relation to the two kidnapping attempts, but rather, that he was unable to confirm who had tried to kidnap him: [29] The claimant described an attempt of kidnapping which occurred in XXXX 2010. He is unable to confirm the authors of the failed kidnapping. He was accompanied by his bodyguards and there were witnesses as per his own testimony. The incident was not reported to any authorities and there was no follow-ups made by the school authorities or his parents. [30] The second incident occurred at the same time at the school premises. The claimant claimed that he injured his hand, and when asked what kind of treatment he received for a broken arm, he went on to explain that he meant he had a cast. There again, the claimant was not able to confirm who tried to kidnap him and there was neither police report nor follow-up made by the authorities of that incident. [31] The Tribunal concluded that there was no evidence that these incidents alleged by the claimant where (sic) politically motivated since he did not provide sufficient evidence to allow the Tribunal to arrive at such conclusion. The allegations made to the effect that the kidnapping attempts where (sic) made by M. Hun Sen of the CPP are speculative at best. [32] According to the documentary evidence,63 the CPP in power in XXXX XXXX harassed the leaders of the opposition and pre-eminent members and journalists, not their children. There is no evidence of persecution or direct attacks on the children of the leaders of the opposition members by the authorities of the CPP. [33] According to the claimant, the fact that he is a boy and loved dearly by his grandfather put him at a higher risk of being harm by the governing authorities, since he is supposed to inherit his grandfather. The Tribunal was unable to arrive at such conclusion based on the evidence. [34] From the above set of facts, the Tribunal noted that the claimant claimed that his bodyguards had foiled two attempts of kidnapping directed at him while he was at school in his country. There were no police reports and he is unable to say who where [sic] the authors of those attempts. The claimant's parents believe that it was probably the CPP, the current regime in power in XXXX XXXX. The Tribunal was unable to arrive at such conclusion based on the evidence.64 [75] In its reasons for decision, the RPD concluded that there was no indication that the members of the appellant's family were being persecuted in Cambodia: [41] It is well documented, Exhibit A-2, that the pre-eminent members of the opposition parties and groups are harassed in Cambodia by the current regime, the CPP and his leader, M. Hun Sen. Opponents are often threatened with bogus charges of defamation as a mean of harassment. The ruling party controls the means of communications and propaganda and tries to prevent opposition members from winning the elections, which includes the SRP members, the claimant's family (Exhibit P-19, US Country report 2012 in Exhibit A-2). However, there is no evidence of persecution of the claimant's family. The evidence shows that his family is actively involved in the political process in Cambodia and they are currently living in that country. [42] There is no indication that the claimant's family is being persecuted because of their political opinion according to the evidence provided. To the contrary, they are participating in the political process, even though there may be evidence of harassment from the CPP to prevent them from winning the elections.65 [76] In its reasons for decision, the RPD also found that the appellant had not become a refugee sur place: [51] According to the Tribunal, the claimant was not a refugee when he left his country in XXXX 2011 and he is still not a refugee today. At the day of the hearing, there was an electoral campaign and his parents are actively involved in that campaign as politicians and there was no evidence submitted to allow the Tribunal to conclude that they're being persecuted there for political reasons. [52] To the contrary, the then exiled leader has returned in his country, Exhibit A-4. The claimant's father and grandfather are in Cambodia and are actively involved in the present political process. The decision is not based on the fairness of the election process and democracy in Cambodia, as suggested by the claimant's counsel. Her exhibits P-19 was reviewed by the Tribunal and the A-2 documents regarding the political situation in that country. As mentioned above, the democratic process is not fair in Cambodia according to the documentary evidence. [53] This decision is based on the considerations of a serious possibility of persecution for this claimant as 17 years old who is from a pre-eminent political family that is involved in the political opposition in Cambodia, namely his parents and his grandparents. Based on the evidence presented at the day of the hearing, the Tribunal concluded that there was no change in the claimant's situation.66 [77] My role in this appeal is not to reassess the evidence,67 nor to conduct a microscopic analysis of the RPD decision. Rather, my role is to determine whether, when analyzed as a whole, this decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.68 The RPD's findings regarding credibility and the assessment of evidence are entitled to great deference.69 [78] The issue of credibility is one of fact and cannot be determined by following a set of rules.70 A determination of credibility is highly individualistic and often depends on intangibles such as demeanour and the manner of testifying.71 A finding of non-credibility with respect to an important aspect of a claim can amount to a finding that there is no credible evidence on which the claim can be based.72 It is open to the RPD to disbelieve a refugee protection claimant, but it must say so unequivocally.73 In other words, when the RPD finds that a refugee protection claim is not credible, it must be able to explain why it arrived at that conclusion, having assessed all the evidence brought before it. [79] In its reasons for decision, the RPD did not state that the appellant's credibility was undermined in any way. Rather, it found that the appellant failed to establish that the attempts to kidnap him were politically motivated. In its reasons for decision, the RPD also referred to the fact that, when he arrived in Canada, in XXXX 2011, he had not filed a claim for refugee protection, but, it still drew no conclusion as to the appellant's subjective fear of being persecuted if he had to return to live in Cambodia.74 [80] In its reasons for decision, the RPD found that, based on the documentary evidence, there was no evidence of persecution or direct attacks by members of the party in power in Cambodia on the children of opposition leaders, but it acknowledged that, according to that same documentary evidence, the party in power harassed the leaders of the opposition and journalists. In its final conclusion, the RPD wrote the following: [56] Given all the above, the Tribunal does not believe that the claimant faced persecution when he left his country, nor that he became a "refugie sur place" thereafter.75 [81] In this case, the error committed by the RPD was, in my opinion, to require the appellant to provide evidence of a fear of future persecution, which was unreasonable. Although refugee protection claimants must establish their case on a balance of probabilities, they do not have to prove that persecution is more likely than not. In other words, it is not necessary for refugee protection claimants to prove that they were or will be subject to persecution. As I understand the jurisprudence in this regard, what the evidence must show is that the claimant has good grounds for fearing persecution for one of the reasons specified in the Act.76 Moreover, in order to conclude that there is a well-founded fear of persecution, or, in other words, a reasonable or serious possibility of persecution, there need not be more than a 50% chance (i.e., a probability), but there must be more than a minimal possibility,77 since it is understood that there is no intermediate ground between these two limits.78 [82] In this case, the appellant stated in his BOC Form and during his testimony that he was the victim of two kidnapping attempts in Cambodia. He also established that he is indeed a member of a family that has been involved in politics for a number of years and that still belongs to the opposition party. [83] According to the documentary evidence, the ruling party in Cambodia controls the three branches of government and other national institutions, with most power concentrated in the hands of Prime Minister Hun Sen. The judiciary is weak; the courts lack human and financial resources and are subject to corruption and political influence. In addition, freedom of expression is constrained by the use of unsubstantiated criminal charges, and members of the security forces commit unlawful killings and carry out arbitrary arrests. Finally, the documentary evidence indicates that there are political prisoners in Cambodia and that, at times, the government detains individuals for political reasons.79 [84] In this case, the RPD characterized the situation experienced by opposition members in Cambodia, including by the appellant's family who are members of that opposition, as "harassment" rather than persecution. [85] Persecution is generally defined as the serious interference with a basic human right,80 and to "persecute" is to harass or afflict with repeated acts of cruelty or annoyance; to afflict persistently.81 Although it is true that the dividing line between persecution and discrimination or harassment is difficult to establish, case law teaches us that discrimination will only amount to persecution when it is serious or systematic enough to be characterized as persecution.82 In addition, a refugee protection claimant may have been subjected to various discriminatory measures in themselves not amounting to persecution, which are combined with a general atmosphere of insecurity in the country of origin. In such situations, the various elements involved may, if taken together, produce an effect on the mind of the claimant that can reasonably justify a claim to a well-founded fear of persecution. In other words, prior incidents are capable of forming the foundation for present fear.83 In addition, the definition of harassment or discrimination is inadequate to cover conduct that includes acts of violence and death threats.84 [86] In this case, the appellant lived in a family that was actively involved in the opposition in Cambodia. He stated under oath that he was a victim of two attempted kidnappings but could not identify the authors of those attempts. The situation that the members of his family endured in the past forms the basis of his current fear of being subjected to persecution in the future, if he had to return to live in his country, Cambodia. [87] The RPD did not conclude that his subjective fear of persecution, if he had to return to live in Cambodia, was undermined in any way. [88] Furthermore, in my opinion, the documentary evidence corroborates his objective fear of being persecuted in the future, if he had to return to live in his country, given that, the ruling party in Cambodia controls the national institutions, the judiciary is weak and subject to political influence, that freedom of expression is limited, the security forces commit unlawful killings and carry out arbitrary arrests, and the government detains individuals for political reasons. [89] Furthermore, because the RPD did not question the credibility of the appellant's testimony, the appellant's subjective fear is corroborated by the documentary evidence on the conditions in Cambodia for people associated with the opposition. [90] In short, based on what is required to meet the burden of proof for a fear of future persecution,85 it is my opinion that the appellant did in fact establish that he has a well-founded fear of persecution in the future in Cambodia, given that he is a member of a family that is politically involved and that has, in the past, been subjected, at the very least, to various forms of harassment and discrimination, if not persecution, in that, according to the appellant's credible testimony, he was the victim of attempted kidnapping. [91] Having carefully read the appellant's memorandum, as well as the reasons for decision of the RPD, I conclude that, overall, the RPD's decision does not fall within the range of possible, acceptable outcomes which are defensible in respect of the facts and law. VIII. REMEDY [92] For all these reasons, I set aside the determination of the RPD and substitute the determination that should have been made, namely, that XXXX XXXX XXXX, is a "Convention refugee" under section 96 of the Act. [93] The appeal is allowed. Alain Bissonnette Me Alain Bissonnette December 3, 2013 Date IRB translation Original language: French 1 IRB Chairperson's Guideline 3: Child Refugee Claimants-Procedural and Evidentiary Issues, effective September 30, 1996, A. Procedural Issues. II. Designated Representative, pages 3 and 4. "The duties of the designated representative are as follows: to retain counsel; to instruct counsel or to assist the child in instructing counsel; to make other decisions with respect to the proceedings or to help the child make those decisions; to inform the child about the various stages and proceedings of the claim; to assist in obtaining evidence in support of the claim; to provide evidence and be a witness in the claim; to act in the best interests of the child." 2 Basis of Claim Form, pages 56, 61 and 64 of the RPD record. 3 Idem, page 62 of the RPD record. 4 Idem, page 65 of the RPD record. 5 Idem. 6 Idem. 7 Idem. 8 Idem, page 66 of the RPD record. 9 Idem. 10 Idem, page 68 of the RPD record. 11 RPD decision, pages 3 to 14 of the RPD record. 12 Idem, paragraph 24, page 8 of the RPD record. 13 Idem, paragraphs 29 to 34, pages 9 and 10 of the RPD record. 14 Idem, paragraphs 41 and 42, page 11 of the RPD record. 15 Idem, paragraphs 51 to 53, page 13 of the RPD record. 16 Appellant's memorandum, pages 57 to 61 of the appeal record. 17 Idem, page 61 of the appeal record. 18 Written statement signed by Stéphanie Valois, page 20.5 of the appeal record. The documents in question are at pages 14 to 20.4 of the appeal record. 19 The documents are at pages 14 to 20.4 of the appeal record. 20 Appellant's memorandum, page 61 of the appeal record. 21 Letter signed by Stéphanie Valois dated October 24, 2013, accompanied by a number of documents, 26 pages. 22 RPD Rules, SOR/2012-256, rule 43. 23 RAD Rules, SOR/2012-257, subrule 3(3). 24 Raza v. Canada (Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness), No. A-11-07, Sharlow, Linden and Ryer, December 26, 2007; 2007 FCA 385, at paragraph 13: "As I read paragraph 113(a), it is based on the premise that a negative refugee determination by the RPD must be respected by the PRRA officer, unless there is new evidence of facts that might have affected the outcome of the RPD hearing if the evidence had been presented to the RPD. Paragraph 113(a) asks a number of questions, some expressly and some by necessary implication, about the proposed new evidence. I summarize those questions as follows: 1. Credibility: Is the evidence credible, considering its source and the circumstances in which it came into existence? If not, the evidence need not be considered. 2. Relevance: Is the evidence relevant to the PRRA application, in the sense that it is capable of proving or disproving a fact that is relevant to the claim for protection? If not, the evidence need not be considered. 3. Newness: Is the evidence new in the sense that it is capable of: (a) proving the current state of affairs in the country of removal or an event that occurred or a circumstance that arose after the hearing in the RPD, or? (b) proving a fact that was unknown to the refugee claimant at the time of the RPD hearing, or? (c) contradicting a finding of fact by the RPD (including a credibility finding)? If not, the evidence need not be considered. 4. Materiality: Is the evidence material, in the sense that the refugee claim probably would have succeeded if the evidence had been made available to the RPD? If not, the evidence need not be considered. 5. Express statutory conditions: (a) If the evidence is capable of proving only an event that occurred or circumstances that arose prior to the RPD hearing, then has the applicant established either that the evidence was not reasonably available to him or her for presentation at the RPD hearing, or that he or she could not reasonably have been expected in the circumstances to have presented the evidence at the RPD hearing? If not, the evidence need not be considered. (b) If the evidence is capable of proving an event that occurred or circumstances that arose after the RPD hearing, then the evidence must be considered (unless it is rejected because it is not credible, not relevant, not new or not material)." 25 Dhrumu v. Canada (Minister of Citizenship and Immigration), No. IMM-1610-10, Kelen, February 11, 2011; 2011 FC 172, at paragraph 27. 26 Page 14 of the appeal record. 27 Foinding v. Canada (Minister of Public Safety and Emergency Preparedness and Minister of Citizenship and Immigration), No. IMM-2182-09, Shore, May 14, 2009; 2009 FC 500, at paragraphs 27, 28 and 29. 28 Raza v. Canada (Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness), No. A-11-07, Sharlow, Linden and Ryer, December 26, 2007; 2007 FCA 385, at paragraph 16. 29 Mooketsi v. Canada (Minister of Citizenship and Immigration), No. IMM-2855-08, Snider, December 22, 2008; 2008 FC 1401, at paragraph 18. Foinding v. Canada (Minister of Public Safety and Emergency Preparedness and Minister of Citizenship and Immigration), No. IMM-2182-09, Shore, May 14, 2009; 2009 FC 500, at paragraph 36. 30 Page 15 of the appeal record. 31 Pages 16 to 19 of the appeal record. 32 Raza v. Canada (Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness), No. A-11-07, Sharlow, Linden and Ryer, December 26, 2007; 2007 FCA 385, at paragraph 13. 33 Pages 20 to 20.2 of the appeal record. 34 Letter signed by Stéphanie Valois dated October 24, 2013, accompanied by a number of documents, 26 pages. 35 RAD Rules, SOR/2012-257, subrule 29(1). 36 Idem, subrule 29(2). 37 Letter signed by Stéphanie Valois dated October 24, 2013, accompanied by a number of documents, 26 pages, at page 1. 38 Raza v. Canada (Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness), No. A-11-07, Sharlow, Linden and Ryer, December 26, 2007; 2007 FCA 385, at paragraph 13. 39 Idem, subrule 3(3). 40 Written statement signed by Stéphanie Valois, page 20.5 of the appeal record. The documents in question are at pages 14 to 20.4 of the appeal record. 41 Appellant's memorandum, page 59 of the appeal record. 42 Section 151 of the Act: "The Immigration and Refugee Board consists of the Refugee Protection Division, the Refugee Appeal Division, the Immigration Division and the Immigration Appeal Division." 43 Section 162 of the Act. 44 Section 165 of the Act. 45 Section 166 of the Act. 46 Paragraph 3(2)(e) of the Act. 47 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraphs 55 and 56: [55] ... While H.L. was decided on the Housen principles, and Khosa was decided on the Dunsmuir/Pushpanathan principles, both cases clearly reject the argument that the mere presence of a right of appeal signals that no deference is called for. There is no principled basis on which to make an exception for appeals within an administrative structure, such as the one that is in issue in this appeal. [56] The mere presence of a right of appeal from the presiding officer to the Board does not warrant a correctness standard of review. 48 Housen v. Nikolaisen, 2002 SCC 33; [2002] 2 S.C.R. 235, paragraph 17, as cited by the Alberta Court of Appeal in Newton at paragraph 81. 49 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraph 81. 50 Housen v. Nikolaisen, 2002 SCC 33; [2002] 2 S.C.R. 235, paragraph 17. 51 Newton v. Criminal Trial Lawyers' Association, 2010 ABCA 399, paragraphs 82 to 84. 52 Appellant's memorandum, page 58 of the appeal record. 53 Idem, page 59 of the appeal record. 54 Parthipan Balasubramaniam v. Canada (Minister of Citizenship and Immigration), No. IMM-4243-12, Scott, June 21, 2013; 2013 FC 698, at paragraph 23. Pawanbir Singh v. Canada (Minister of Citizenship and Immigration), No. IMM-12505-12, Shore, July 23, 2013; 2013 FC 807, paragraph 26. Ferencova v. Canada (Minister of Citizenship and Immigration), No. IMM-3940-10, Mosley, April 8, 2011; 2011 FC 443, paragraph 8: "The issue of whether the Board failed to consider evidence in the record is a factual one that attracts deference." 55 Dunsmuir v. New Brunswick, 2008 SCC 9; [2008] 1 S.C.R. 190, at paragraph 47. Gabor Miroslav v. Canada (Minister of Citizenship and Immigration), No. IMM-3466-09, Russell, April 12, 2010; 2010 FC 383, at paragraph 22. Bethany Lanae Smith v. Canada (Minister of Citizenship and Immigration), No. IMM-5699-11, Mosley, November 2, 2012; 2012 FC 1283, at paragraph 19. 56 Appellant's memorandum, page 60 of the appeal record. 57 Idem. 58 Idem, page 61 of the appeal record. 59 RPD decision, paragraph 19, page 7 of the RPD record. 60 Idem, paragraphs 20 to 22, pages 7 and 8 of the RPD record. 61 Idem, paragraph 23, page 8 of the RPD record. 62 Idem, paragraphs 16 and 25, pages 5 and 7 of the RPD record. 63 Document 3, National Documentation Package on Cambodia, May 3, 2013, Tab 2.1: Cambodia. Country Reports on Human Rights Practices for 2012. April 19, 2013; Tab 4.1: KHM103342.E, June 1, 2010. 64 RPD decision, pages 9 and 10 of the RPD record. 65 Idem, page 11 of the RPD record. 66 Idem, page 13 of the RPD record. 67 Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12; [2009] 1 S.C.R. 339, paragraph 59: "Where the reasonableness standard applies, it requires deference. Reviewing courts cannot substitute their own appreciation of the appropriate solution, but must rather determine if the outcome falls within 'a range of possible, acceptable outcomes which are defensible in respect of the facts and law' (Dunsmuir, at para. 47). There might be more than one reasonable outcome. However, as long as the process and the outcome fit comfortably with the principles of justification, transparency and intelligibility, it is not open to a reviewing court to substitute its own view of a preferable outcome." 68 Pawanbir Singh v. Canada (Minister of Citizenship and Immigration), No. IMM-12505-12, Shore, July 23, 2013; 2013 FC 807, at paragraph 29. 69 Ahmadsai v. Canada (Minister of Citizenship and Immigration), No. IMM-893-13, Shore, October 10, 2013; 2013 FC 1025, at paragraph 23. 70 White v. The King, [1947] S.C.R. 268, at page 272. 71 R. v. S. (R.D.), [1997] 3 S.C.R. 484, at paragraph 128. 72 Hernandez Cortes v. Canada (Minister of Citizenship and Immigration), No. IMM-4645-08, Teitelbaum, June 4, 2009; 2009 FC 583, at paragraph 30. 73 Maksud v. Canada (Department of Citizenship and Immigration), No. IMM-9459-03, Layden-Stevenson, February 10, 2005; 2005 FC 221, at paragraph 8. Mansour Dehghani-Ashkezari v. Canada (Minister of Citizenship and Immigration), No. IMM-6317-10, Mosley, June 30, 2011; 2011 FC 809, at paragraphs 16, 18 and 23. 74 RPD decision, paragraphs 48 and 49, page 12 of the RPD record. 75 Idem, page 13 of the RPD record. 76 Parampsothy v. Canada (Minister of Citizenship and Immigration), No. IMM-421-12, Mandamin, August 16, 2012; 2012 FC 1000, at paragraph 24. See 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. 77 Idem. 78 Florea v. Canada (Minister of Citizenship and Immigration), No. IMM-5443-04, Lemieux, November 3, 2005; 2005 FC 1472, paragraphs 21 to 24. Ceballo v. Canada (Minister of Citizenship and Immigration), No. IMM-773-04, Beaudry, January 21, 2005; 2005 FC 71, paragraph 7. Canada (Minister of Citizenship and Immigration) v. Balogh, No. IMM-982-01, Heneghan, November 6, 2001; 2001 FCT 1210, paragraph 21. Mariko v. Canada (Minister of Citizenship and Immigration), No. IMM-7190-03, Harrington, August 16, 2004; 2004 FC 1136, paragraph 8. Arrinaj v. Canada (Minister of Citizenship and Immigration), No. IMM-224-04, O'Keefe, May 31, 2005; 2005 FC 773, paragraph 43. 79 U.S. Department of State, Country Reports on Human Rights Practices for 2012. Cambodia 2012 Human Rights Report, at pages 15 and 23 of the RPD record. 80 Sadeghi-Pari v. Canada (Minister of Citizenship and Immigration), Mosley, [2004] F.C.A. No. 316, 2004 FC 282, at paragraph 29, as cited by the Honourable Judge Zinn in Warner v. Canada (Minister of Citizenship and Immigration), March 23, 2011, No. IMM-4283-10; 2011 FC 363, at paragraph 7. 81 Rajudeen v. Canada (Minister of Employment and Immigration), (1984), 55 NRF 129 (FCA), as cited by the Honourable Judge Zinn in Warner v. Canada (Minister of Citizenship and Immigration), March 23, 2011, No. IMM-4283-10; 2011 FC 363, at paragraph 7. 82 Ramirez v. Canada (Minister of Citizenship and Immigration), [1994] F.C.A. No. 1888, 88 F.T.R. 208, at paragraph 8, as cited by the Honourable Judge Zinn in Warner v. Canada (Minister of Citizenship and Immigration), March 23, 2011, No. IMM-4283-10; 2011 FC 363, at paragraph 7. See also the analysis by the Honourable Judge Near on the same subject in Mallampally v. Canada (Minister of Citizenship and Immigration), February 27, 2012, No. IMM-5626-11; 2012 FC 267, at paragraphs 22 to 24. 83 Irem Gur v. Canada (Minister of Citizenship and Immigration), No. IMM-6294-11, de Montigny, August 14, 2012; 2012 FC 992, at paragraph 20, citing fellow Judge Dawson in Tolu v. Canada (Minister of Citizenship and Immigration), 2002 FCT 334, at paragraph 17. 84 Bayrak v. Canada (Minister of Citizenship and Immigration), No. IMM-11458-12, Shore, October 21, 2013; 2013 FC 1056, at paragraph 19, citing Porto v. Canada (Minister of Employment and Immigration), [1993] FCA No. 881 (QL/Lexis). 85 Parampsothy v. Canada (Minister of Citizenship and Immigration), No. IMM-421-12, Mandamin, August 16, 2012; 2012 FC 1000, at paragraph 24. See 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. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / No de dossier de la SAR : MB3-03455 2