MB4-01298

RAD File No. / N° de dossier de la SAR : MB4-01298 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX Personne en cause Appeal considered/heard at Montréal, Quebec Appel instruit à Date of decision July 10, 2014 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Désirée Potanbissi Conseil de la personne en cause Designated representative N/A Représentant désigné Counsel for the Minister N/A Conseil du ministre REASONS AND DECISION I. INTRODUCTION [1] XXXX XXXX XXXX, the appellant, who is a Congolese citizen, is appealing against the determination of the Refugee Protection Division (RPD), alleging that it based its decision on an erroneous finding of fact that it made in a capricious manner, without regard for the answers provided by the appellant during her hearing and, most importantly, without regard for the evidence. II. DETERMINATION OF THE APPEAL [2] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) allows the appeal, sets aside the determination and refers the matter to the RPD for re-determination by a differently constituted panel that will take into account all the evidence and properly fulfill its role as commissioner. III. BACKGROUND A. Basis of the claim [3] In the Basis of Claim Form (BOC Form) that she signed on December 2, 2013, the appellant states that she is a Congolese citizen who was born on XXXX XXXX, 1977, that she is of the Protestant religion, that she speaks French and Lingala, and that her son, two daughters, father, mother, four sisters and one brother were living in the Democratic Republic of the Congo, while her spouse was living in Canada at the time.1 [4] In her BOC Form, she states that, on XXXX XXXX, 2013, she was invited to a human rights conference in the DRC organized by a group of students from the Université de Kinshasa [university of Kinshasa] and that, XXXX XXXX XXXX XXXX XXXX XXXX, XXXX XXXX XXXX virtually no progress had been made in 2013 because of poor governance and a lack of will on the part of the country's leaders.2 [5] In her BOC Form, the appellant states that, during the night of XXXX XXXX, 2013, she received an anonymous call on her cellphone threatening herXXXX XXXX XXXX XXXX XXXX XXXX. She also states that, on XXXX XXXX, 2013, in her absence, armed men in civilian clothing went to her home and threatened to kill her for an offence against the head of state and that, on XXXX XXXX, 2013, she received a second anonymous call during which she was asked where she was and received death threats for endangering state security.3 [6] In her BOC Form, the appellant states that, if she returned to her country, she believes that she would face a danger of torture, and even death, at the hands of the security services (secret militias) connected with the office of the president of the Republic, as a result of the XXXX XXXX XXXX XXXX regarding the DRC's human rights record in 2013, which she attributed to poor governance and a lack of political will on the part of the country's authorities.4 [7] In her BOC Form, the appellant states that she had not asked the authorities to protect or help her because the repression against human rights activists in the DRC is often perpetrated through elements in the security services (police), whether they be disguised or not, and because there are no organizations that are able to protect her from the persecuting state.5 [8] In her BOC Form, the appellant stated that she moved to a part of Kinshasa to live with friends, fearing that, if she stayed at her home, she would be kidnapped and tortured by the unidentified people who had threatened her over the telephone and come to threaten her at her home.6 [9] In her BOC Form, the appellant stated that she left her country on XXXX XXXX XXXX 2013, and no earlier or later, because the fear for her personal safety in the DRC had reached its peak and she had a visa and an airplane ticket.7 [10] In her BOC Form, the appellant stated that the Institut congolais de formation et d'alphabétisation pour la promotion des droits de l'homme (ICFPDH) [Congolese training and literacy institute for the promotion of human rights], of which she was a member and had been one of XXXX XXXX for the XXXX XXXX XXXX XXXX XXXX municipalities for XXXX years, is a not-for-profit association based in the DRC that is involved with training, literacy and promotion of human rights wherever violations may occur in the country. She also states that they focus their attention on violence against women and girls and on the recruitment of child soldiers by armed groups, including the DRC armed forces, and that they organize training workshops on basic human rights principles, awareness conferences, and appeals to the government to improve conditions.8 [11] Before the RPD, in addition to her BOC Form and the amendment to her BOC Form, the appellant filed the following documents in evidence: D-2: an ICFPDH membership (XXXX) card;9 D-3: an ICFPDH service card;10 D-4: a student card from the Institut supérieur des techniques médicales de Kinshasa [higher institute of medical technology in Kinshasa];11 D-5: a membership card from the Association nationale des XXXX (XXXX) du Congo [national association of XXXX of the Congo];12 D-6: an article from the online newspaper Le Potentiel, dated XXXX XXXX, 2013: "XXXX XXXX à Mme XXXX XXXX XXXX" [XXXX XXXX for XXXX XXXX XXXX];13 D-7: a document published in January 2013 by the ICFPDH regarding the promotion and protection of the rights of the child;14 D-8: a letter from the appellant's mother, dated XXXX XXXX, 2013;15 D-9: a letter from a friend of the appellant, dated XXXX XXXX, 2013;16 D-10: this friend's voter card (XXXX XXXX XXXX);17 D-11: evidence that documents D-8 to D-10 were sent by email, dated January 13, 2014;18 D-12: an article from the newspaper Radiookapi, dated December 19, 2013, entitled "Kinshasa: deux femmes violées pendant plusieurs heures par 11 hommes armés" [Kinshasa: two women raped for several hours by 11 armed men];19 D-13: Amnesty International report on the human rights situation in the DRC in 2012, which is part of the national documentation package on the DRC, version of May 3, 2013;20 and D-14: paper version of the article from the newspaper Le Potentiel, dated XXXX XXXX, 2013: "XXXX XXXX XXXX XXXX XXXX XXXX XXXX."21 B. RPD decision [12] The hearing before the RPD was held on February 4, 2014, and the decision was handed down on March 3, 2014.22 [13] In its reasons for decision, the RPD found that, owing to a number of contradictions and inconsistencies reflected in the record, the appellant, then called the claimant, was not a credible witness.23 [14] The RPD first found that the appellant's credibility in terms of her membership in the ICFPDH and her human rights activities was undermined. [15] First reason: The organization's service card bears the symbol of the department of justice and human rights, a government body, thus contradicting the allegation that the institution is a non-governmental organization (NGO). The RPD did not accept the appellant's explanations that it is indeed an NGO, considering that she in no way explained the contradiction raised.24 [16] Second reason: There was a contradiction between, on the one hand, the appellant's testimony that she had belonged to the ICFPDH since XXXX 2010, but had obtained her service card on XXXX XXXX, 2011, after three months of training, and, on the other, the information that she provided on the IMM 5669 form to the effect that she had been a member of the ICFPDH since XXXX 2011.25 [17] Third reason: There is a difference of 15 months between the date on which the organization's cards were issued and the date on which the appellant allegedly actually lived in XXXX. According to the RPD, if it were true that the appellant was a member of the ICFPDH in XXXX 2010, she should have given them the address where she was actually living, rather than giving a possible future address.26 [18] The RPD then found that the appellant's credibility was undermined with regard to an interview that she claimed she gave to a journalist. [19] First reason: In her BOC Form, the appellant did not state that she had spoken to a journalist after the conference XXXX XXXX XXXX XXXX at the Université de Kinshasa. The RPD did not accept the appellant's explanation that a journalist had asked her questions after her conference, indicating that, in its opinion, question 2(a) of the BOC Form is clear and asks that the reasons for the threats be explained in detail.27 [20] Second reason: There is a contradiction between the appellant's testimony according to which it was a man who had asked the questions, when the article in question was signed by a female journalist. The RPD was not satisfied with the appellant's explanation that a man had asked questions in Lingala but that she did not know whether another female journalist had translated the interview into French.28 [21] This resulted in its conclusion on the issue of whether the appellant is indeed a human rights activist, as follows: [translation] [25] The panel wishes to point out that, in the articles submitted by the claimant (exhibits D-6 and D-14, which are in fact the same article), she presents herself as a human rights activist. Yet, because of the serious contradictions with no reasonable explanation pointed out earlier, the panel did not believe that she was in fact a human rights activist. Given that fact, and the deficiencies in her evidence relating to the interview with the journalist that the panel just mentioned, it lends no probative value to the articles filed by the claimant.29 [22] The RPD then found that the appellant's credibility regarding the threats received was undermined by the fact that her friend's letter does not mention that the appellant asked for her help after men had come to her home to find her and threatened to kill her. Consequently, the RPD did not lend any probative value to the testimonial letters of her mother (D-8) and her friend (D-9).30 C. Grounds of appeal and remedy sought [23] In her memorandum, the appellant submits that the RPD based its decision on an erroneous finding of fact that it made in a capricious manner, without regard for the answers provided by the appellant during her hearing and, most importantly, without regard for the evidence.31 [24] First, with regard to the NGO status of the ICFPDH, the appellant submits that, in the DRC, every NGO is obliged to identify itself in relation to the department to which its activities are connected. She added that she explained this clearly at the hearing and that the RPD had no reason to affirm that the ICFPDH is a governmental organization.32 [25] Second, with regard to her status as a member of the organization and her activities within it, the appellant submits that the RPD had the opportunity to double-check matters with the ICFPDH, rather than concluding that her credibility surrounding her membership and activities in the organization was undermined.33 She also submits that there was an element of exaggeration in the RPD's assessment of her testimony: [translation] Quite beyond her control, it is the managers of this NGO who grant membership in the ICFPDH at the end of a three-month training period. Therefore, a sympathizer of an organization cannot declare that they are a member if that declaration is not in compliance with the constitution and rules of the said organization. It is difficult to understand why the panel criticized the appellant for stating that she was a member on the date that she actually obtained her membership cards, and for deducing that she was therefore not credible.34 [26] The appellant submits that the RPD showed a comparable attitude with regard to her testimony about the address on her ICFPDH service card and button issued in XXXX 2011 and that it did not take her explanations into account: [translation] ... having already paid money for her security deposit before her training at the ICFPDH, and as the move was to take place very soon, she [the appellant] had given the address of XXXX XXXX XXXX XXXX in the XXXX XXXX at the end of the training for XXXX organized by the ICFPDH, because that was the address where she was supposed to live as soon the guaranteed lodgings were freed up, even though she did not know exactly what day she was going to move in. Unfortunately, as in the preceding paragraphs, the panel refused to take the appellant's explanations into consideration...35 [27] The appellant submits that the reasons cited by the RPD for refusing to lend probative value to her cards establishing her connection with the ICFPDH do not take account of basic Congolese realities, such as the quality of paper used by an NGO or the use of French and English, and that its conclusion in this regard is unfair and unreasonable.36 [28] The appellant submits that the RPD cannot rely on the fact that all the details of her story are not written in her BOC Form in order to reject all the other facts in support of her refugee protection claim, her testimony at the hearing and the testimony of her close family and friends filed in evidence.37 [29] Lastly, the appellant submits that, rather than criticize her for having stated that her interview had been conducted by a man when the article was signed by a woman, it should have checked the accuracy of the article in question.38 [30] The appellant is asking the RAD to set aside the RPD's determination and determine that she is a Convention refugee or a person in need of protection.39 IV. HEARING BEFORE THE RAD A. No new evidence was presented by the appellant on appeal [31] In her memorandum, the appellant did not indicate that she was filing new evidence pursuant to subsection 110(4) of the IRPA or requesting that the RAD hold a hearing. That said, in her memorandum40 she makes reference to documents that were filed in evidence before the RPD, and she reproduced them in the appeal record.41 [32] It is worth noting that, under subsection 110(3) of the IRPA, the RAD generally proceeds without a hearing, on the basis of the record of the proceedings of the RPD: 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. Tests under subsection 110(6) of the IRPA [33] Under subsection 110(6) of the IRPA, 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 in the affirmative, 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 [34] In the present case, because the appellant did not file new evidence within the meaning of subsection 110(4) of the IRPA, there is no cause to hold a hearing. V. STANDARD OF REVIEW APPLICABLE IN THIS APPEAL [35] The question of whether or not the RPD properly assessed the credibility of a person who claimed refugee protection and considered all the evidence has to do with the assessment of the evidence, which constitutes a question of fact. Based on the case law, it is my opinion that the applicable standard of review in similar cases is that of reasonableness.42 [36] When a decision is reviewed on the standard of reasonableness, the analysis must be concerned with the existence of justification, transparency and intelligibility within the decision-making process, as well as with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and the law.43 VI. ANALYSIS OF THE MERITS OF THE APPEAL A. Did the RPD make one or more errors in its assessment of the appellant's credibility? [37] After reviewing the RPD's reasons for decision and the arguments presented by the appellant in her memorandum, I have come to the conclusion that the RPD erred in its assessment of the appellant's credibility. My reasoning is as follows. [38] In Jamil, the Federal Court gave examples of the RPD's credibility findings with regard to the person who was the subject of the appeal, which were unjustifiable: 25 ... * Findings for which there was no evidence; * Findings of the tribunal based on conjecture, resulting in unjustified and unsupported inferences regarding the circumstances leading to an application for refugee status; * Inconsistencies drawn between POE notes and an applicant's testimony or the applicant's PIF where a tribunal dwells on details and not on the substance of the claim and leads to misconstruction of the evidence. Any such inconsistencies should be major and not minor and sufficient by itself to call into question the applicant's credibility. (See Mushtaq v. Canada(Minister of Citizenship and Immigration), 2003 FC 1066); * The tribunal must be reasonable in rejecting an applicant's explanation when confronted with a contradiction and must not be quick to apply North American logic and reasoning to a claimant's behaviour, (see R.K.L., supra, at para 12); * The tribunal must assess the applicant's claim against the totality of the evidence.44 [39] In this case, I am of the opinion that the RPD made unjustifiable and unreasonable findings with respect to the appellant's credibility, in particular because the RPD found the appellant's explanations to be unsatisfactory, when, given the specific context of the DRC, they were quite reasonable. [40] I am also of the opinion that the RPD should have been more effective in fulfilling its role as commissioner, taking an active part at the hearing to ensure that the investigative work was carried out, thereby enabling it to assess all the relevant facts against both the appellant's testimony and the documentary evidence.45 While it is true that the burden of proof in principle rests with the person claiming refugee protection, in this case I consider that the duty to ascertain and evaluate all the relevant facts should have been shared between the appellant and the RPD.46 [41] More specifically, with regard to the ICFPDH and the appellant's involvement with this organization, one of the documents in the national documentation package on the DRC filed in evidence before the RPD is from the DRC "Société civile" [civil society] website or portal.47 The recommendations set out in this document were put together by the human rights NGOs ICFPDH and HR. The abbreviation ICFPDH stands for the Institut congolais de formation et d'alphabétisation pour la promotion des droits de l'homme, the organization that the appellant claims to have worked for as XXXX XXXX. The abbreviation HR stands for Human Rescue, which is the source of the document, according to the Immigration and Refugee Board of Canada. [42] In consulting this DRC civil society website, I found another document dated October 15, 2012, which begins as follows: [translation] The national NGOs working for the promotion, protection and defence of human rights in the Democratic Republic of the Congo known as HUMAN RESCUE/DRC and the INSTITUT CONGOLAIS DE FORMATION ET D'ALPHABÉTISATION POUR LA PROMOTION DES DROITS DE L'HOMME, abbreviated as ICFPDH, consider it their duty to denounce human rights violations in the prisons of KASAPA in Lubumbashi, KIPUSHI in Kipushi, BULUO and BOMA in Likasi in the province of Katanga.48 [43] Consequently, I find it patently unreasonable for the RPD to have concluded that the appellant's credibility regarding her membership in the ICFPDH and her human rights activities was undermined because the organization's service card bears a symbol of the department of justice and human rights, a government body, thus contradicting the allegation that the institution is a non-governmental organization (NGO). [44] Without going into detail, I agree with the appellant's analysis regarding the RPD's attitude in assessing her testimony about when she became a member of the ICFPDH, about the addresses in her documents associating her with this NGO, and about the interview given to a male journalist or a female journalist. Quite simply, I consider that, in this case, the RPD dwelled on details rather than on the substance of the refugee protection claim, and ended up misconstruing the evidence before it as a result. This attitude completely permeated the assessment of the appellant's credibility and the evidence that she filed before the RPD, and ultimately the result, in my opinion, is that the RPD's decision does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. B. The matter must be referred to the RPD [45] In the context of this appeal, even though I have found that the RPD erred and that its determination rejecting the appellant's refugee protection claim does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law, that does not mean that I am able to substitute the determination that should have been made for the determination of the RPD. [46] Even though the recording of the appellant's hearing is part of the record before me, the fact remains that I cannot substitute my own determination for the RPD's determination without hearing the evidence that was presented before it. Moreover, my understanding of the case law is that the credibility of the person who is the subject of the proceeding cannot be analyzed except at a hearing, and findings cannot be made in this regard except by a decision-maker who participated in that hearing and who heard all the evidence.49 Lastly, since the RPD's decision did not go beyond a finding that the appellant was not credible, it did not analyze internal flight alternative or state protection. Yet, these issues-or, or least one of them-must necessarily be analyzed before a conclusion may be drawn about whether the appellant has a well-founded fear of persecution. [47] I therefore have no choice but to refer this matter to the RPD for re-determination by a differently constituted panel that will take into account all the evidence and properly fulfill its role as commissioner. VII. REMEDY [48] For these reasons, the determination rejecting the appellant's refugee protection claim is set aside, and the matter is referred to a differently constituted panel of the RPD for re-determination. [49] The appeal is allowed. Alain Bissonnette Me Alain Bissonnette July 10, 2014 Date IRB translation Original language: French 1 Basis of Claim Form (BOC Form), pages 27, 32 and 35 of the RPD record. 2 Idem, page 27 of the RPD record. 3 Idem. 4 Idem, page 28 of the RPD record. 5 Idem. 6 Idem, page 29 of the RPD record. 7 Idem. 8 Idem, page 30 of the RPD record. 9 This document is reproduced on page 122 of the RPD record. 10 This document is reproduced on page 123 of the RPD record. 11 This document is reproduced at page 124 of the RPD record. 12 This document is reproduced on page 125 of the RPD record. 13 This article is reproduced on pages 126 to 128 of the RPD record. 14 This document is reproduced on pages 129 to 136 of the RPD record. 15 This letter is reproduced on page 137 of the RPD record. 16 This letter is reproduced on page 138 of the RPD record. 17 This document is reproduced on page 139 of the RPD record. 18 This document is reproduced on page 140 of the RPD record. 19 This article is reproduced on pages 141 and 142 of the RPD record. 20 This report is reproduced on pages 143 to 146 of the RPD record. 21 This article is reproduced on page 147 of the RPD record. 22 RPD decision, pages 3 to 11 of the RPD record. 23 Idem, paragraph 12, page 5 of the RPD record. 24 Idem, paragraphs 13 and 14, pages 5 and 6 of the RPD record. 25 Idem, paragraphs 15 and 16, page 6 of the RPD record. 26 Idem, paragraph 17, page 7 of the RPD record. 27 Idem, paragraphs 21, 22 and 23, pages 8 and 9 of the RPD record. 28 Idem, paragraph 24, page 9 of the RPD record. 29 Idem, paragraph 25, page 9 of the RPD record. 30 Idem, paragraphs 26, 27 and 28, pages 9 and 10 of the RPD record. 31 Appellant's memorandum, page 19 of the appeal record. 32 Idem, paragraphs 2 and 3, page 20 of the appeal record. 33 Idem, paragraph 4, page 20 of the appeal record. 34 Idem, paragraph 6, page 21 of the appeal record. 35 Idem, paragraph 8, page 22 of the appeal record. 36 Idem, paragraphs 9, 10 and 11, pages 23 and 24 of the appeal record. 37 Idem, paragraphs 12, 15 and 16, pages 24 and 25 of the appeal record. 38 Idem, paragraph 13, page 24 of the appeal record. 39 Idem, page 26 of the appeal record. 40 Idem, paragraph 15, page 25 of the appeal record. 41 D-2, D-3, D-6, D-8 and D-9, which are reproduced on pages 11 to 17 of the appeal record. 42 Iyamuremye v. Canada (Minister of Citizenship and Immigration), No. IMM-5282-13, Shore, May 26, 2014; 2014 FC 494, at paragraphs 39 and 40. 43 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. 44 Jamil v. Canada (Minister of Citizenship and Immigration), No. IMM-6643-05, Lemieux, June 21, 2006; 2006 FC 792, at paragraphs 23 to 25. 45 IRB, Chairperson's Guideline 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division, which came into effect on December 1, 2003, and was amended on December 15, 2012, at paragraphs 2.1 and 2.2. The Guideline can be consulted on the Immigration and Refugee Board of Canada's website. 46 Utrera v. Canada (Minister of Citizenship and Immigration), No. IMM-2254-07, Shore, November 20, 2007; 2007 FC 1212, at paragraph 19, quoting the UNHCR's Handbook on Procedures and Criteria for Determining Refugee Status. 47 National documentation package on the DRC, May 3, 2013, Document 9.1: Human Rescue, Rapport sur les violations des droits de l'homme dans les prisons de Lubumbashi, Likasi et Kipushi dans la province de Katanga [report on human rights violations in prisons in Lubumbashi, Likasi and Kipushi in the province of Katanga], January 14, 2013, 3 pages, URL: http://www.societecivile.cd/node/4670. 48 Human Rescue, Rapport sur les violations des droits de l'homme dans les prisons de Lubumbashi, Likasi et Kipushi dans la province de Katanga, October 15, 2012, 3 pages, URL: http://www.societecivile.cd/node/4614. 49 Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177. The written reasons of Justice Wilson, on pages 213 and 214, state: "...even if hearings based on written submissions are consistent with the principles of fundamental justice for some purposes, they will not be satisfactory for all purposes. In particular, I am of the view that where a serious issue of credibility is involved, fundamental justice requires that credibility be determined on the basis of an oral hearing. Appellate courts are well aware of the inherent weakness of written transcripts where questions of credibility are at stake and thus are extremely loath to review the findings of tribunals which have had the benefit of hearing the testimony of witnesses in person (citations omitted). I find it difficult to conceive of a situation in which compliance with fundamental justice could be achieved by a tribunal making significant findings of credibility solely on the basis of written submissions." Killen v. Minister of Transport, No. T-2410-97, Gibson, June 8, 1999; 1999 CanLII 8354 (FC), at paragraph 14: "I find that the only option available to the Tribunal in the circumstances was to evaluate the testimony given before the member of the Tribunal on the basis of the transcript of that testimony. In doing so, it is indeed unfortunate that it adopted the language of "credibility" with respect to the testimony of Mrs. Matheson. It was simply not in a position to determine credibility. That being said, I am satisfied that it was open to the Tribunal to evaluate the evidence on the basis of the transcript and in so doing to give greater weight to the specific and detailed testimony of Mrs. Matheson as against the necessarily more generalized testimony of the applicant and his student pilot." --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 2 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : MB4-01298 17