MB4-04844

Immigration and Refugee Board of Canada Refugee Appeal Division Commission de l'immigration et du statut de réfugié du Canada Section d'appel des réfugiés RAD File No. / No de dossier de la SAR : MB4-04844 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX Personne en cause Appeal considered/heard at Montréal, Quebec Appel instruit à Date of decision April 30, 2015 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Luciano Mascaro 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 XXXX, the appellant, is a Cameroonian citizen and is appealing against the decision of the Refugee Protection Division (RPD). She submits that the RPD committed errors in mixed fact and law in the assessment of her credibility. II. DETERMINATION OF THE APPEAL [2] Pursuant to subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the determination of the RPD, namely that XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. III. BACKGROUND A. Alleged facts [3] The appellant states in her memorandum that she fears XXXX XXXX regime and that she was a victim of domestic violence, police brutality, and unjust imprisonment on two occasions because of her activism with the XXXX XXXX XXXX XXXX XXXX XXXX [XXXX XXXX XXXX XXXX XXXX].1 [4] She also writes that to ensure her safety, she left Douala and sought refuge with a friend's aunt in Foreké, where she could go unnoticed and where she remained from XXXX 2008 until XXXX 2013 without any real incidents.2 [5] She arrived in Canada on XXXX XXXX, 2013, and claimed refugee protection on July 8, 2014.3 [6] The appellant submitted a number of documents4 as evidence before the RPD in addition to her Basis of Claim Form (BOC Form).5 [7] The Minister of Citizenship and Immigration Canada (the Minister) intervened before the RPD by submitting evidence6 and arguing that the many contradictions in the statements made by the claimant,7 and the delay in claiming refugee protection, seriously undermine her credibility and the very basis of her claim for refugee protection.8 B. RPD decision [8] The hearing before the RPD was held on September 8, 2014, and the decision rejecting her claim for refugee protection was rendered on October 23, 2014.9 [9] In its reasons for decision, the RPD states that it read the psychological and medical documents recently submitted as evidence. It also indicates that it took into account the claimant's psychological state throughout the hearing.10 It also states that it took into account11 Guideline 4.12 [10] According to the RPD, the determinative issue in this case is the claimant's credibility,13 and the RPD found that she was not a credible witness by reason of the several serious contradictions and inconsistencies in this case.14 [11] As for the documents regarding the psychological treatment, the RPD concluded that they did not identify the assessment tests or methodology used by the personnel to arrive at their conclusions. It also pointed out that the personnel had met with the claimant only on a few occasions and only as of XXXX 2014. The RPD adds: [translation] [38] Even if there is a psychological report that establishes the existence of XXXX XXXX XXXX XXXX XXXX, or any other condition that would cause the refugee protection claimant to be vulnerable, confused or anxious during questioning, this situation would not explain flagrant contradictions or serious discrepancies between the various pieces of evidence, particularly if they were established with the assistance of counsel.15 In this case, even though the claimant has been represented since she filed her claim for refugee protection, there are serious contradictions and omissions in her file.16 [12] In the balance of its reasons, the RPD identified omissions, particularly the fact that in her BOC Form, she makes no mention of a wanted notice dated XXXX XXXX, 2013, a summons dated XXXX XXXX, 2008, or a conversation between her brother and her mother regarding the wanted notice.17 [13] After hearing the claimant's explanation regarding the wanted notice, namely that she was not aware that she had to mention everything, the RPD found it to be unsatisfactory: [translation] ...if it is true that a wanted notice was issued against her, it would be a very important and pertinent factor that she should have raised earlier. Furthermore, before the hearing, even though she was already represented by her lawyer, she did not make any amendments to her BOC Form in order to add this very important information. She did, however, testify that she had been aware of the wanted notice for a few months. For all these reasons, the panel is of the opinion that this is a very serious omission that undermines her credibility as well as the probative value of the wanted notice in question.18 [14] The RPD also found the omission regarding the summons dated XXXX XXXX, 2008, to be serious.19 [15] In the balance of its reasons, the RPD identified a serious contradiction between the claimant's testimony and the content of the health records that she submitted as evidence: [translation] ...although the claimant testified that her mother was detained and attacked by the police after her arrival in Canada on XXXX XXXX, 2013, and that it was the first time that an incident such as this occurred, the health record she submitted to the panel indicates however that this incident took place in XXXX XXXX XXXX 2013, which is before the claimant arrived in Canada.20 [16] The RPD did not accept the explanation that the claimant was not aware of this and concluded that the claimant's mother's detention and assault had not been mentioned in her BOC Form, which constitutes an omission. It also did not accept the claimant's explanation that she had already completed her BOC Form when she was informed of this incident.21 [17] In the balance of its reasons, the RPD explains that in light of the claimant's testimony and the omissions in the medical certificate dated XXXX XXXX, 2008, it concluded that this document was fabricated for the purposes of the claim for refugee protection, did not grant it any probative value; and found that this situation undermined the claimant's credibility.22 For similar reasons, the RPD also concluded that it would not grant any probative value to a medical certificate dated XXXX XXXX, 2008, and it then found that the claimant's credibility was irrevocably undermined.23 [18] In the balance of its reasons, the RPD concluded that the information provided by the claimant in the various forms that she signed was contradictory regarding where she had lived and what she had done between XXXX 2006 and XXXX 2013,24 and about the existence of an ex-spouse who was a police officer and who sexually assaulted her.25 The RPD also noted a contradiction in the claimant's testimony regarding when she had lived with her ex-spouse.26 [19] The RPD also found that the delay of almost 10 months before the claimant filed a claim for refugee protection in Canada is behaviour that is inconsistent with that of someone who fears for her life.27 [20] The RPD also concluded that the information provided by the claimant in previous visa applications contradicts her allegations, particularly regarding the existence of a police officer ex-spouse who sexually assaulted her.28 [21] Hence, its final conclusion: [translation] Given the cumulative effect of the many contradictions, omissions, inconsistencies and adjustments to her testimony, including serious omissions and contradictions between the various pieces of evidence, the panel finds that, generally speaking, the claimant is not credible, and it does not believe her story.29 C. Grounds of appeal and remedy sought [22] In her memorandum, the appellant submits that the RPD committed errors in mixed law and fact in its assessment of her credibility.30 [23] Following is the appellant's main argument: [translation] 21. In this case, the RPD rejects the appellant's claim for refugee protection on the basis of credibility. However, although the panel takes into account the medical letters that demonstrate that the appellant is a fragile and vulnerable person and that this must be considered in the assessment of her credibility, the panel does not apply these considerations but actually engages in the microscopic assessment of credibility, like in any other case. It is an error to engage in a microscopic analysis, and this error is doubled when dealing with a vulnerable person.31 [24] In the balance of her memorandum, the appellant provides a number of examples where the RPD allegedly committed several errors in fact because of the approach referred to in the previous paragraph.32 She also submits that by not taking into account her psychological limitations, the RPD did not consider procedural fairness and there was a breach of the principles of natural justice.33 [25] The appellant submits that the RPD's conclusions regarding the visa applications and the delay in claiming refugee protection are secondary conclusions that, in and of themselves, cannot lead to the rejection of the claim for refugee protection. She adds that she gave explanations for her delay in claiming refugee protection, to the effect that she feared the authorities because of what she had been through in her country.34 [26] The appellant is asking the RAD to allow her appeal, set aside the determination of the RPD and order a hearing, or refer the matter to the RPD for re-determination.35 [27] In a statement signed by the appellant's lawyer, the appellant is requesting that a hearing be held pursuant to subsection 110(6) of the IRPA.36 IV. HEARING BEFORE THE RAD [28] The Refugee Appeal Division 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 IRPA, and a memorandum that includes full and detailed submissions regarding why the RAD should hold such a hearing, if the appellant is requesting that a hearing be held.37 In this case, there is a written statement indicating that the appellant is requesting that a hearing be held before the RAD because it has expertise in refugee issues.38 However, the appellant's memorandum does not contain complete and detailed submissions explaining why a hearing should be held.39 [29] Nevertheless, pursuant to 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 would justify allowing or rejecting the claim for refugee protection. If the answer is yes, the RAD may then hold a hearing. [30] In this appeal, the appellant has not submitted any new evidence within the meaning of subsection 110(4) of the IRPA. Consequently, there is no cause to hold a hearing. V. APPROACH TO BE TAKEN IN THIS APPEAL [31] In the appellant's memorandum, referring to the Federal Court decision in Huruglica, her lawyer submits that the RAD must hear and determine the matter as a hybrid appeal. The RAD, acting as an appellate body and not taking on a judicial review role, must examine every aspect of the RPD decision and arrive at its own conclusions as to whether the claimant is a Convention refugee or a person in need of protection. He adds that nowhere in the IRPA does it mention that the error must be unreasonable, palpable or overriding.40 [32] In Djossou, Justice Martineau concludes once again that an appeal before the RAD is not a judicial review, as the RAD has much broader powers on appeal than those of a court of law sitting in judicial review,41 and he urges the RAD to consider the three options before it-true appeal, appeal de novo or hybrid appeal-with an open mind.42 In the conclusion of this decision, Justice Martineau states that it does not appear appropriate to him to judicially impose any standard of deference until such time as the Federal Court of Appeal or even the Supreme Court of Canada has decided the issue definitively. He states that, in the interim, the onus is on the RAD to review the IRPA and to adopt a new test based on an analysis that takes all the relevant factors into account. He adds that, in his opinion, the two alternative approaches (the so-called "palpable and overriding error" appellate standard of review, and the composite and variable standard of review) discussed in Alyafi are not the only options to consider-the absence of deference in the case of any error of law, fact or law and fact being also a possible option.43 [33] In Aloulou, Justice LeBlanc states that respect for legislative intent weighs against treating appeals before the RAD as a form of judicial review, and also weighs against developing a policy of deference, the effect of which would be to turn appeals before the RAD into a form of judicial review. He goes on to state that the RAD has a different purpose, that of rectifying any error in law in the RPD's decision or any palpable and overriding error in the determination of the facts or in the application of the law to the facts, assuming that it was correctly identified.44 [34] In Akuffo, Justice Gagné states that when no hearing is held before the RAD, the latter owes deference to the RPD's credibility findings, although opinions diverge within the Federal Court on the level of deference that is owed.45 In Sajad and Bui, Justice Shore ruled that the RAD owes a certain level of deference to the RPD's findings when they primarily concern the credibility of the person claiming refugee protection.46 [35] Drawing as much as possible on the decisions rendered by the Federal Court to date, I am of the opinion that in this case, while conducting my own assessment of the evidence, I must show a certain level of deference to the RPD's findings concerning the appellant's credibility, although such deference does not apply to the issue of procedural fairness. In fact, when there is an issue of procedural fairness, it is only necessary to ascertain whether the breach of procedural fairness has been demonstrated or not. VI. ANALYSIS OF THE MERITS OF THE APPEAL [36] Having conducted an independent review of the record, I conclude that the RPD respected the principles of procedural fairness and did not commit an error in its assessment of the appellant's credibility. I will explain why. A. Principles of procedural fairness [37] When procedural fairness is in issue, the proper approach is to ask whether the requirements of natural justice in the particular circumstances of the case have been met.47 In a claim before the RPD, procedural fairness is aimed at ensuring that refugee protection claimants understand the proceedings, have a reasonable opportunity to tender any evidence that supports their claim and are given a chance to persuade the RPD that their claims are well-founded.48 A breach of procedural fairness does not necessarily result in relief in every case. According to the case law, if it is apparent that the decision-maker would have reached the same decision notwithstanding the breach of procedural fairness, and no purpose would be achieved by referring the matter to the RPD for re-determination, the decision should stand.49 [38] In her memorandum, the appellant submits that the RPD breached procedural fairness when it assessed her credibility and when it evaluated the documents submitted as evidence. She never submitted that the RPD breached procedural fairness in the manner that it conducted the hearing or in its behaviour at the hearing. [39] I am of the opinion that the RPD did not breach the principles of natural justice or procedural fairness in this case, since the appellant understood the proceedings, was given a reasonable opportunity to submit evidence in support of her claim, and had the opportunity to demonstrate to the RPD that her claim was well-founded. [40] Having analyzed the situation in a realistic and practical manner-as a reasonable and sensible person can, by considering all the necessary information on that subject-I conclude that the appellant has not established that the RPD breached any principle of procedural fairness. B. Taking into account vulnerability [41] The RPD and the RAD must take into account the mental health of someone who is claiming refugee protection. A psychological report can indicate how the mental health of the person concerned can affect their behaviour during a hearing.50 [42] Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB (Guideline 8) defines the characteristics of a vulnerable person:51 2.1 For the purposes of this guideline, vulnerable persons are individuals whose ability to present their cases before the IRB is severely impaired. Such persons may include, but would not be limited to, the mentally ill, minors, the elderly, victims of torture, survivors of genocide and crimes against humanity, women who have suffered gender-related persecution, and individuals who have been victims of persecution based on sexual orientation and gender identity. [43] It also states that: 2.3 Persons who appear before the IRB frequently find the process difficult for various reasons, including language and cultural barriers and because they may have suffered traumatic experiences that resulted in some degree of vulnerability. IRB proceedings have been designed to recognize the very nature of the IRB's mandate, which inherently involves persons who may have some vulnerabilities. In all cases, the IRB takes steps to ensure the fairness of the proceedings. This guideline addresses difficulties that go beyond those that are common to most persons appearing before the IRB. It is intended to apply to individuals who face particular difficulty and who require special consideration in the procedural handling of their cases. It applies to the more severe cases of vulnerability. 2.4 Wherever it is reasonably possible, the vulnerability must be supported by independent credible evidence filed with the IRB Registry. [44] That being said, in the case of a person identified as being vulnerable, the procedural accommodations do not change the overall analysis of the claim for refugee protection. 5.2 A person may be identified as vulnerable based, in part, on alleged underlying facts that are also central to the ultimate determination of their case before the IRB. An identification of vulnerability does not indicate the IRB's acceptance of the alleged underlying facts. It is made for the purpose of procedural accommodation only. Thus, the identification of a person as vulnerable does not predispose a member to make a particular determination of the case on its merits. Rather, a determination of the merits of the case will be made on the basis of an assessment of all the evidence."52 [45] In this case, the appellant and her lawyer did not request that special measures be taken given her vulnerability. However, at the hearing the RPD's attitude was calm, compassionate and understanding. In her memorandum, the appellant did not offer any criticism in this respect. [46] As for the psychological and medical reports admitted as evidence regarding the appellant's health,53 the RPD took them into account and stated that they did not stipulate which tests or methodology had been used to arrive at their conclusions. [47] I carefully read the documents in question. In the letter from XXXX XXXX, the latter indicates that the appellant consulted her on four occasions. Based on the appellant's own words, Ms XXXX finds that she [translation] "presents with an XXXX XXXX and XXXX XXXX, symptoms of XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX, as well as issues with XXXX to be evaluated."54 In the letter from XXXX XXXX, the latter states that the appellant consulted her on four occasions. Ms XXXX also states that [translation] "the assessment tools used open and closed questions and verbal exchanges regarding her traumatic experiences, her fear of returning to Cameroon, her separation from her 17-year-old son and from her mother, who were still living in Cameroon, her concerns about their safety, as well as her efforts related to immigration and her integration in Canada."55 In the letter from XXXX XXXX, he states that the appellant consulted him. The psychologist relied on the appellant's accounts for his [translation] "diagnostic hypotheses, which lead him to suspect that she suffers from XXXX, XXXX and a XXXX XXXX." Based on these hypotheses, he refers the appellant for psychological and medical care.56 [48] In light of the information contained in these documents, I am of the opinion that the RPD was right to point out that they did not stipulate which tests or methodology were used by the specialists in question to arrive at their conclusions. On that point, it is important to remember that Guideline 8 states that, generally, experts' reports should contain "the methodology used by the expert in assessing the person, including whether an interview was conducted, the number and length of interviews, whether tests were administered, and, if so, what those tests were and the significance of the results."57 [49] Nevertheless, even when there is a psychological report, it cannot of itself establish the credibility of a refugee protection claimant's allegations.58 In other words, a psychological report cannot be used to assess the truthfulness of the refugee protection claimant's story. Guideline 8 is very clear on that point: 8.4 Experts should not offer opinions on issues within the exclusive jurisdiction of the decision-maker, such as the merits of the person's case. 8.5 An expert's opinion is not in itself proof of the truthfulness of the information upon which it is based. The weight given to the report will depend, among other things, on the credibility of the underlying facts in support of the allegation of vulnerability.59 [50] It is well understood that a refugee protection claimant can explain the contradictions, inconsistencies and omissions in their version of the facts. This being said, it is open to the decision-maker to evaluate the answers given and to state whether they are satisfactory or not. In addition, it is well recognized that a decision-maker is allowed to assess a refugee protection claimant's credibility by comparing the evidence produced by the claimant at different interviews, their BOC Form and the testimony provided at the hearing.60 In addition, even when there is a psychological report that establishes the existence of post-traumatic stress disorder, or other condition that would cause the refugee protection claimant to be fragile, confused or anxious during questioning, this situation would not explain flagrant contradictions or important discrepancies between the various pieces of evidence.61 And, when presented with a series of documents, the decision-maker can give some more value than others.62 [51] In this case, given the accumulation of contradictions, omissions, and inconsistencies, the RPD found that the claimant was generally not credible and, therefore, the RPD did not believe her story. Having conducted an independent review of the record, I am of the opinion that in acting as it did, the RPD did not commit any error. C. Delay in claiming refugee protection [52] As for the appellant's delay in claiming refugee protection in Canada, I am of the opinion that the arguments put forward by her lawyer in the appeal memorandum cannot succeed. In its reasons for decision, the RPD clearly indicates that the appellant had tried on two occasions to obtain a Canadian visa and therefore knew that Canada was a country where she could live in safety. The RPD also indicated that the appellant was able to get the immigration authorities at the airport to admit her as a visitor; therefore, she was able to answer the questions put to her that allowed her to be admitted to Canada. Although a delay in making a claim for refugee protection is not a decisive factor in itself, it is, nevertheless, a relevant element that the panel may take into account in assessing the statements and actions of a refugee protection claimant.63 Consequently, I am of the opinion that the RPD did not commit any error when it concluded that the claimant's almost XXXX-month delay in making her claim for refugee protection in Canada undermined her credibility. In other words, this delay demonstrated the absence of a subjective fear on her part. D. No credible basis for the claim [53] Acting as the RPD did in this case is, in my opinion, consistent in every regard with one of the objectives of the IRPA, namely, to establish fair and efficient procedures that will maintain the integrity of this system, while upholding respect for the human rights and fundamental freedoms of all human beings.64 [54] I would add that, pursuant to subsection 107(2) of the IRPA, the RPD could no doubt have stated in its decision that there was no credible basis for the claim in that the appellant did not present any credible or trustworthy evidence on which it could have based a favourable decision. VII. CONCLUSION [55] For these reasons, I confirm the determination of the RPD, namely, that XXXX XXXX XXXX XXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" within the meaning of section 97 of the IRPA. [56] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette April 30, 2015 Date IRB translation Original language: French 1 Appellant's memorandum, September 5, 2014, paragraph 2, page 24 of the appeal record. 2 Idem, paragraph 13, page 26 of the appeal record. 3 Idem, paragraph 14, page 26 of the appeal record. 4 The Basis of Claim Form is reproduced at pages 24 to 35 of the Refugee Protection Division (RPD) record. 5 The list of these documents is reproduced at page 37 of the RPD record. The actual documents are reproduced at pages 38 to 76 of the RPD record. 6 The list of these documents is reproduced at page 120 of the RPD record. The actual documents are reproduced at pages 121 to 224 of the RPD record. 7 The use of the French word demandeure in a claim for refugee protection is not universally accepted. Based on the evolutionary character of the French language and using the increasingly prevalent example of the word professeure to represent the female gender of professeur, I am of the opinion that the word demandeure in a claim for refugee protection presented to an administrative tribunal is more apt than the use of the word demanderesse, which is generally used for adversarial trial proceedings. 8 Notice of intention to intervene, August 26, 2014, at pages 114 to 119 of the RPD record. 9 RPD reasons and decision, pages 3 to 23 of the RPD record. 10 Idem, paragraphs 3 to 10, pages 5 and 6 of the RPD record. 11 Idem, paragraph 31, page 9 of the RPD record. 12 Immigration and Refugee Board of Canada (IRB), Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, effective date November 13, 1996. These guidelines are available on the IRB website at http://www.irb.gc.ca/Eng/BoaCom/references/pol/GuiDir/Pages/GuideDir04.aspx. 13 RPD reasons and decision, paragraph 33, page 9 of the RPD record. 14 Idem, paragraph 35, page 10 of the RPD record. 15 Kaur v. Canada (Minister of Citizenship and Immigration), No. IMM-424-12, Chief Justice Crampton, November 28, 2012; 2012 FC 1379, at paragraphs 37 and 39. 16 RPD reasons and decision, paragraph 38, page 11 of the RPD record. 17 Idem, paragraphs 39, 40 and 41, page 11 of the RPD record. 18 Idem, paragraph 42, page 12 of the RPD record. 19 Idem, paragraphs 43, 44 and 45, pages 12 and 13 of the RPD record. 20 Idem, paragraph 48, page 14 of the RPD record. 21 Idem, paragraphs 49 and 50, page 14 of the RPD record. 22 Idem, paragraphs 52 to 56, pages 15 and 16 of the RPD record. 23 Idem, paragraphs 57, 58 and 59, pages 16 and 17 of the RPD record. 24 Idem, paragraphs 60 and 61, page 18 of the RPD record. 25 Idem, paragraphs 62 and 63, pages 18 and 19 of the RPD record. 26 Idem, paragraph 64, page 19 of the RPD record. 27 Idem, paragraphs 65 and 66, pages 19 and 20 of the RPD record. 28 Idem, paragraphs 67 to 71, pages 20, 21 and 22 of the RPD record. 29 Idem, paragraph 71, page 22 of the RPD record. 30 Appellant's memorandum, December 5, 2014, paragraph 16, page 26 of the appeal record. 31 Idem, paragraph 21, page 27 of the appeal record. This argument is also submitted under paragraphs 40 to 44 of the appeal record. 32 Idem, paragraphs 22 to 36, pages 27 to 31 of the appeal record. 33 Idem, paragraph 44, pages 32 to 33 of the appeal record. 34 Idem, paragraphs 37 and 38, page 31 of the appeal record. 35 Idem, paragraph 45, page 33 of the RPD record. 36 Written statement, page 23 of the appeal record. 37 Refugee Appeal Division Rules, SOR/2012-257, subrule 3(3). 38 Written statement, page 23 of the appeal record. 39 Appellant's memorandum, pages 24 to 33 of the appeal record. 40 Idem, paragraphs 17 to 20, pages 26 and 27 of the appeal record. 41 Djossou v. Canada (Minister of Citizenship and Immigration), No. IMM-7980-13, Martineau, November 14, 2014; 2014 FC 1080, at paragraph 41. 42 Idem, at paragraph 55. 43 Idem, at paragraph 91. 44 Aloulou v. Canada (Minister of Citizenship and Immigration), No. IMM-7949-13, LeBlanc, December 19, 2014; 2014 FC 1236, at paragraphs 54 and 57. 45 Akuffo v. Canada (Minister of Citizenship and Immigration), No. IMM-6640-13, Gagné, November 12, 2014; 2014 FC 1063, at paragraphs 34 to 39. 46 Sajad v. Canada (Minister of Citizenship and Immigration), No. IMM-926-14, Shore, November 21, 2014; 2014 FC 1107, at paragraph 22. Van Son Bui v. Canada (Minister of Citizenship and Immigration), No. IMM-1654-14, Shore, November 28, 2014; 2014 FC 1145, at paragraph 25. 47 Zheng v. Canada (Minister of Citizenship and Immigration), No. IMM-1998-11, Mosley, November 25, 2011; 2011 FC 1359, paragraph 7. See also Bokhari v. Canada (Minister of Citizenship and Immigration), No. IMM-3907-10, Harrington, March 22, 2011; 2011 FC 354, paragraph 13. 48 Nemeth v. Canada (Minister of Citizenship and Immigration), No. IMM-2522-02, O'Reilly, May 14, 2003; 2003 FCTD 590, paragraph 10: "The Board was aware that the Nemeths had been represented up until just prior to the hearing. It was, or should have been, alive to the risk that the claimants were ill-prepared to represent themselves. Under the circumstances, it had an obligation to ensure that the Nemeths understood the proceedings, had a reasonable opportunity to tender any evidence that supported their claim and were given a chance to persuade the Board that their claims were well-founded." 49 Fei Zheng v. Canada (Minister of Citizenship and Immigration), No. IMM-1998-11, Mosley, November 25, 2011; 2011 FC 1359, paragraph 8. Sumit Roy v. Canada (Minister of Citizenship and Immigration), No. IMM-7106-12, Scott, July 9, 2013; 2013 FC 768, at paragraph 34: "While there is no need to establish a prejudice in order prove a breach of procedural fairness based on inadequate interpretation, the Applicant is required to demonstrate that the breach of procedural fairness was material to the Board's decision in order for this Court to intervene" (citations omitted). Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202. 50 Atay v. Canada (Minister of Citizenship and Immigration), No. IMM-1205-07, O'Keefe, February 15, 2008; 2008 FC 201, at paragraph 32. 51 IRB, Chairperson's Guideline 8: Procedures With Respect to Vulnerable Persons Appearing Before the IRB, Effective date: December 15, 2006, Amended: December 15, 2012, section 2.1. 52 Idem, at paragraph 5.2. 53 A medical letter dated August 29, 2014 (C-2); a statement regarding psychological treatment dated August 27, 2014 (C-3) and a referral letter from a psychologist (C-4). These documents are reproduced at pages 38 to 46 of the RPD record. 54 C-2, p. 40 of the RPD record. 55 C-3, p. 43 of the RPD record. 56 C-4, p. 46 of the RPD record. 57 Guideline 8 cited in footnote 51, section 8.3, paragraph 4. 58 Solomon v. Canada (Minister of Citizenship and Immigration), No. IMM-6239-03, Blais, September 15, 2004; 2004 FC 1252, at paragraph 13, where Justice Blais cites a number of other Federal Court decisions that confirm this position. 59 Guideline 8 cited in footnote 51, section 8.3, paragraph 4. Orozco Hurtado v. Canada (Minister of Citizenship and Immigration), No. IMM-2081-07, Frenette, February 29, 2008; 2008 FC 270, at paragraph 51. 60 Rodriguez v. Canada (Minister of Citizenship and Immigration), No. IMM-4845-09, Near, April 27, 2010; 2010 FC 462, at paragraphs 28 and 29. 61 Kaur v. Canada (Minister of Citizenship and Immigration), No. IMM-424-12, Chief Justice Crampton, November 28, 2012; 2012 FC 1379, at paragraphs 37 and 39. 62 Rodriguez v. Canada (Minister of Citizenship and Immigration), No. IMM-4845-09, Near, April 27, 2010; 2010 FC 462, at paragraph 30. 63 Godfrey v. Canada (Minister of Citizenship and Immigration), No. IMM-1838-12, Russell, November 27, 2012; 2012 FC 1377, at paragraph 31, citing his colleague Justice Near in Garcia. 64 Paragraph 3(2)(e) of the IRPA. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / No de dossier de la SAR : MB4-04844 16