MB4-01193

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 : MB4-01193 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered/heard at Montréal, Quebec Appel instruit à Date of decision June 19, 2014 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Claude Whalen 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 XXXX, the appellant, who is a citizen of Cameroon, is appealing against a decision of the Refugee Protection Division (RPD), alleging that it rendered a decision based on errors in its assessment of her fear of returning to live in her country. 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. III. BACKGROUND A. Basis of the claim [3] In the Basis of Claim Form (BOC Form) that she signed on December 11, 2013, the appellant states that she is a Catholic citizen of Cameroon born on XXXX XXXX, 1980, that she speaks English and French, and that, at that time, her mother, one sister and one brother were living in Cameroon and one sister was living in Canada.1 [4] In her BOC Form, the appellant states that he had been threatened by her ex-husband XXXX XXXX XXXX and his brother XXXX XXXX, who had threatened to kill her if she reported him, once she was in the United States of America, for all the atrocities he had committed against her during the years they lived together: prostitution, partner swapping, and a hate group.2 [5] In her BOC Form, the appellant states that, if she were to return to her country, she would fear her ex-husband's creditors, who threatened to kill them, and her ex-husband's brother, who threatened to kill her and her family members if she reported her ex-husband for the abuse to which he had subjected her.3 [6] In her BOC Form, the appellant states that she had asked her country's authorities for assistance in 2002 after being beaten by her ex-husband, who broke her jaw, but that the police officers told her to go back home, suggested that she be more obedient to her husband, and told her that if she ever came back, they would put her in prison.4 [7] In her BOC Form, the appellant states that she did not relocate to another part of the United States of America because her ex-husband had confiscated all her documents and because the law states that, after spending one year in the United States, she was no longer authorized to apply for asylum.5 [8] In her BOC Form, the appellant states that she left her country in XXXX 2004 for the United States of America after her ex-husband lost his job and started receiving death threats from his creditors.6 [9] In an unsigned amendment to her BOC Form dated February 6, 2014, the appellant answers question 2(a) as follows: [translation] My problems began when I was 10 years old and I admitted to my mother that her lover had been sexually abusing me. She took his side. I did not understand how she could choose a man who had abused me, sodomized me, forced me to perform oral sex on him and taken away my virginity. Home life was hell because he later left my mother for someone else, and she believed that I was the source of her misfortune and made my life absolutely miserable. When I was 16, she threw me out the door and stopped paying for my education. That is when I went to live with my childhood friend XXXX XXXX XXXX In 1997, while I was out with XXXX, I met XXXX XXXX XXXX XXXX I immediately succumbed to his charm. He had just moved to Douala to seek employment. After I explained my family situation to him, he took me with him and promised to watch over me. He lived in XXXX XXXX XXXX with his cousins. The job market really had an effect on him, because he was not finding a job worthy of his degree (XXXX XXXX XXXX XXXX XXXX). Sometimes, out of frustration, he drank and beat me. After we had moved several times, he decided that we should live in XXXX XXXX XXXX XXXX In 2001, he decided that we should marry without notifying our families. Things got even worse after the wedding. I thought that he had married me out of love, but he turned me into a prostitute. He forced me to sleep with several men a few months after our wedding. I was subjected to beatings and abortions because every time I was late, he made me drink medications. I objected several times and he beat me. Once, in 2003, he broke my jaw. I had to have surgery. I underwent the surgery without anesthetic, because he didn't want to pay. Later, I went to the police to file a complaint. They chased me away, saying that I should submit to my husband. He forged documents so that people could travel. This is why he owed a lot of money to dissatisfied people. We often had to move, because we sometimes received violent death threats from people unless they were reimbursed. He decided that we would have to leave the country for the United States. He said that he had lost his job and that his creditors would kill us if we remained in the country. On the day before we left, his brother XXXX threatened me, stating that if I reported his brother to the American authorities, he would harm my family. We were greeted by XXXX uncle, who rented us a room in one of his houses. He started getting frustrated again, and told me that I would have to resume prostitution shortly after our arrival. I categorically refused, and he became angry and hit me. His uncle learned of the incident and notified XXXX that he did not want this in his home. He told him that he had better leave or he would call the police. He left the house, taking my passport with him. A few weeks later, he called from XXXX. He told me to go meet him. I went to meet him. He took me to a three-bedroom apartment where he was living with other men. Everything went well at first. Problems between him and his roommates began because of a bill. He decided to leave the premises and told me to return to his uncle's house. He said he was looking after our papers. XXXX rarely called. In XXXX 2006, he told me to meet him in XXXX. He picked me up at the bus station with a girl named XXXX, who worked with him, and a little girl. He told me that I had to sign the divorce papers so that he could prepare his papers. Upon leaving the lawyer's office, he handed me an envelope with $150 and told me that our paths were separating and that he had burned my passport. He was going to marry XXXX, and the child was their daughter. My world was falling apart. Afterwards, I met a Cameroonian woman named XXXX. I telephoned XXXX uncle, who told me that I could not return because XXXX owed him a lot of money and the room had been rented out. XXXX sold food and alcohol in her home. She explained to me that I could stay there, but I would have to help her with her illegal business. She brought me to a lawyer. He told me that I could no longer apply for refugee status, because I had been in the country for more than a year. I could not return to Cameroon because of the death threats, and I could not file a complaint against XXXX. I stayed with XXXX. Her house was a kind of inn because she sometimes called in girls to put her men at ease. I was raped several times. I then met Ms. XXXX, who had a XXXX XXXX and proposed that I accompany her from time to time to work. After that, I met XXXX XXXX XXXX, who was her customer. It was love at first sight. I confided in him. He asked me to live with him in XXXX 2008. He had three daughters, who had been abandoned by their mother. I left Quinta. I threatened to leave him because he used drugs. The girls' mother came back and took them a few years later. My world was crumbling yet again. I could no longer stand XXXX. I left him in XXXX 2012. I continued XXXX to survive. I attempted suicide in XXXX 2013. My life continued to be sad until the day a friend told me that I could go to Canada, where cases like mine were taken care of. I fear the people to whom he owed money. I will never have a normal life in Cameroon.7 [10] In addition to her BOC Form and the amendment thereto, the appellant submitted the following documents as evidence before the RPD: D-2: her current passport;8 D-3: her old passport;9 and D-4: her marriage certificate.10 B. RPD decision [11] The hearing before the RPD was held on February 17, 2014, and the decision was rendered on March 3, 2014.11 [12] In its reasons for decision, the RPD states that it took into account all the evidence as well as Guideline 3: Women Refugee Claimants Fearing Gender-Related Persecution, and it found that the appellant, then called the claimant, had failed to establish the credibility of certain alleged facts and behaviours.12 [13] The analysis undertaken by the RPD addressed the prospective risk to the appellant under paragraph 97(1)(b) of the IRPA. Here is how the RPD justified its decision to analyze that risk rather than the fear of persecution under section 96 of the IRPA: [translation] [22] With respect to the first alleged fear, the claimant states that she fears her ex-husband's creditors because of their involvement in criminal activities in which she never took part. However, the case law has already decided that criminal acts, corruption and personal vendettas cannot, in and of themselves, be a ground of persecution within the meaning of section 96 of the IRPA.13 [23] Since the state is neither the agent of persecution nor involved in the risk alleged by the claimant, paragraph 97(1)(a) of the IRPA does not apply either.14 [14] As for the prospective risk to the appellant under paragraph 97(1)(b) of the IRPA, the RPD determined that she had not established such a risk on a balance of probabilities and therefore was not a "person in need of protection."15 [15] In particular, the RPD first referred to the appellant's testimony at the hearing about her fears regarding her ex-husband's creditors and her ex-husband's brother. Ultimately, the RPD found that there was no indication that the appellant would be sought out for any reason in Cameroon, or that her ex-husband's former creditors are still there, or that her ex-husband would still have any interest in subjecting her to reprisals, whether directly or through his brother.16 [16] In addition, the RPD states that the appellant still has a family in Cameroon, that it had not been established before the RPD that the family would be in danger, and that the appellant could count on that family if she were to return to live in her country of origin.17 [17] The RPD also found that the appellant's credibility was undermined by the fact that she did not apply for asylum in the United States of America, where she had lived for several years illegally. The RPD did not find reasonable the appellant's explanation that an American lawyer had told her that it was too late to apply for asylum: [translation] [32] In her defence, the claimant alleged that she consulted an American attorney, who told her it was too late to apply for asylum because she had been in the United States for more than a year at that time. He allegedly advised her to apply as a student or perhaps get married so that she could be sponsored legally in the United States. The claimant stated that marriage was out of the question at the time and that she did not have the money necessary to submit an application as a student. [33] The panel cannot accept these explanations as reasonable. The claimant testified that she did not seek other opinions or make other efforts to legalize her status. She simply worked as a XXXX on the black market, and, with some reluctance, lived off income from prostitution for a while. Based on these various aspects of the claimant's conduct during her lengthy stay in the United States, the panel draws a negative inference regarding the credibility of the fears that she alleges.18 [18] The RPD also found that the passport application submitted by the appellant on XXXX XXXX, 2013, while she was living in the United States of America, was inconsistent with a fear of returning to Cameroon, and that her sole purpose in obtaining that passport was to establish her identity after arriving in Canada.19 [19] Hence its final determination: [translation] [37] In light of the foregoing, the panel determines that the claimant is not a "Convention refugee" because she did not discharge her burden of establishing a "well-founded fear of persecution" should she return to Cameroon. The panel also determines that the claimant did not show, on a balance of probabilities, that she is a "person in need of protection" should she return to Cameroon.20 C. Grounds of appeal and remedy sought [20] In her memorandum, the appellant submits that the RPD erred in its assessment of her fear of returning to her country to live. [21] Firstly, regarding the prospective risk under paragraph 97(1)(b) of the IRPA, she submits that the RPD failed to consider the profile of her ex-husband's former creditors, who are dishonest people and who know her. Furthermore, she submits that the evidence does not indicate that the lengthy period of time spent outside her country would be an obstacle to the vengeance that they will wish to take upon her. Lastly, she submits that the RPD erred by arguing that her family would be in danger, when she alone had received death threats.21 [22] Next, with respect to her fear of gender-related persecution, the appellant submits that the RPD erred in fact when it found that she was not without resources, given that she cannot live with her family and that her mother is without resources in any event. She also submits that the RPD erred when it failed to sufficiently analyze her fear of gender-related persecution, because it did not in any way consider the documentary evidence concerning the situation of violence against women in Cameroon.22 [23] The appellant is asking that the RAD allow the appeal, set aside the RPD's determination and grant her protection claim, or refer the matter to the RPD or hold a new hearing before the RAD.23 IV. HEARING BEFORE THE RAD A. The appellant did not submit any new evidence in the appeal, but requests a hearing before the RAD [24] In her memorandum, the appellant does not state that she is submitting new evidence within the meaning of subsection 110(4) of the IRPA. However, she asks that the RAD eventually hold a hearing if it does not refer the matter to the RPD.24 [25] It should be noted that, pursuant to 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 [26] 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 dismissing the refugee protection claim. If the answer is yes, the RAD may 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 [27] In this case, the appellant did not present any new evidence within the meaning of subsection 110(4) of the IRPA. [28] Consequently, I am of the opinion that there is no cause to hold a hearing before the RAD. V. STANDARD OF REVIEW TO BE APPLIED ON APPEAL [29] The question of whether or not the RPD properly assessed the credibility of a person claiming refugee protection and took all the evidence into account falls under the assessment of the evidence, which is a question of fact. Using the case law as a guide, I am of the opinion that the standard of review that must be applied in similar cases is that of reasonableness.25 [30] As for whether the RPD took into account the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution,26 based on the case law, I am of the opinion that the standard of review that must be applied in similar cases is that of reasonableness.27 [31] When a decision is reviewed on the reasonableness standard, 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 law.28 VI. ANALYSIS OF THE MERITS OF THE APPEAL A. Did the RPD err in its assessment of the appellant's credibility? [32] Having analyzed the RPD's reasons for decision, I find that the RPD erred in its assessment of the appellant's credibility. Here is why. [33] Although these two points are not raised by the appellant in her memorandum, it is necessary, in my opinion, to analyze the way in which the RPD found that the appellant's credibility was undermined by the fact that she did not apply for asylum in the United States of America and by the fact that, while in that country, she applied for a passport from her country of origin. [34] With respect to the first point, it is true that failure to immediately claim international protection can impugn the credibility of a person claiming refugee protection in Canada.29 However, the fact that a person does not seize the first opportunity to claim refugee status does not thereby constitute a waiver of their right to claim that status in another country, because there is no requirement in the Convention that a refugee seek protection in the country nearest their home, or even in the first state to which they flee.30 Moreover, the fact that a person does not seize the first opportunity to claim refugee protection should only be one of many reasons for finding that a refugee protection claimant lacks credibility. In other words, this fact cannot, by itself, constitute a sufficient basis for rejecting a refugee protection claim.31 When no convincing or reasonable explanation is given, failure to claim refugee protection at the first opportunity may undermine the credibility of the person claiming refugee protection.32 [35] In this case, it is my opinion that the RPD did not take into account the appellant's explanation of why she did not apply for asylum in the United States of America, even though it was clear. The explanation is that she consulted a lawyer, who explained to her that once one year has elapsed, it is too late to apply for asylum in that country. Regardless of whether that information is accurate or not, it is what the lawyer told her. In addition, the appellant's situation in the United States of America needs to be taken into account. She was the victim of violence there. She did not have a significant income, and her overall life situation was precarious. In my opinion, the RPD was not reasonable when it dismissed the appellant's explanation. In doing so, it was too quick to apply North American logic and reasoning to the appellant's behaviour. And it did not sufficiently take her personal situation into account.33 [36] Now, regarding the fact that the appellant obtained her Cameroonian passport while she was still in the United States of America, the RPD's reasons for decision do not clearly indicate why such conduct can be found to compromise the appellant's credibility or contradict her subjective fear of returning to live in Cameroon. What is certain is that the RPD cites no case law in support of its finding. Moreover, in its decision, it states that the appellant obtained the passport only [translation] "for the purpose of establishing her identity later on, after arriving in Canada,"34 which, in my opinion, is not something that can be held against her. B. Did the RPD reasonably take into account the Guideline on Women Refugee Claimants Fearing Gender-Related Persecution? [37] Having analyzed the RPD's reasons for decision, I conclude that the RPD did not reasonably take the Guideline into account. Here is why. [38] In this regard, the case law establishes that RPD members must consider the Guideline on Women Refugee Claimants Fearing Gender-Related Persecution in appropriate cases. It also establishes that it is incumbent on RPD members to exhibit the knowledge required, and to apply it in an understanding and sensitive manner when deciding issues of violence against women.35 That being said, a failure to consider the Guideline does not necessarily result in overturning a decision.36 [39] The Guideline stipulates the framework of analysis that must be used when a woman alleges persecution on the basis of her sex or gender. Under this framework of analysis clearly identified in the Guideline, decision-makers must assess the harm feared by the claimant and consider whether it constitutes a form of persecution. It must be determined whether the claimant's fear of persecution is based on one or more of the grounds listed in the "Convention refugee" definition. It must be determined whether the claimant's fear of persecution is well founded, and this includes an assessment of the evidence related to the ability or willingness of the state to protect the claimant and, more generally, of the objective basis of the claim. If required, it must be determined whether there is an internal flight alternative (IFA).37 [40] I would add that in order to successfully establish that they satisfy the definition of refugee, a person seeking refugee protection must show, on a balance of probabilities, that they have a reasonable subjective fear of persecution. A subjective fear of persecution is solely based on the assessment of the person's credibility while the objective fear is usually established by documentary evidence regarding the country conditions.38 [41] In this case, although the RPD states that it took the Guideline into account, I do not see any analysis by the RPD of the appellant's fear of persecution. That being said, the RPD nonetheless found that the appellant did not discharge her burden of showing a well-founded fear of persecution should she return to Cameroon. [42] The case law does indicate that when the fear of sexual violence experienced by women from a specific country is not the basis of the appellant's claim for refugee protection, a detailed analysis of that issue is not warranted under the circumstances.39 However, it is my opinion that the following distinctions can be made in this case. On the one hand, the RPD provided no analysis of the appellant's fear of persecution on the basis of her membership in the particular social group of women living in Cameroon. On the other hand, although that specific fear of persecution was not expressly stated as the basis of the appellant's refugee protection claim, the information provided in her BOC Form makes it clear that she has experienced very serious problems of sexual violence both in Cameroon and in the United States of America. Given this context, I am of the opinion that the RPD was required to fulfil its role as a commissioner and be actively involved in the hearing so that the inquiry process could be done, so that all the relevant facts could be assessed in light of both the appellant's testimony and the documentary evidence.40 While the burden of proof lies in principle with the person seeking refugee protection, it is my opinion that, in this case, the duty to ascertain and evaluate all the relevant facts should be shared by the appellant and the RPD.41 [43] Consequently, I conclude that the RPD did not reasonably take into account the Guideline on Women Refugee Claimants Fearing Gender-Related Persecution in this case, and that this constitutes an error. In my opinion, as a result of this error, its decision that the appellant did not discharge her burden of establishing that she had a well-founded fear of persecution, should she return to Cameroon, does not fall within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. C. The case should be referred to the RPD [44] Within the context of this appeal, although I conclude that the RPD made errors and that its decision to reject 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, this does not mean that I can substitute a determination that, in my opinion, should have been made for the determination of the RPD. [45] While the recording of the hearing before the RPD is part of the record before me, the fact remains that I cannot substitute my own determination for that rendered by the RPD without hearing the evidence that was presented before the RPD. Moreover, my interpretation of the case law is that the credibility of the person who is the subject of the appeal may be assessed only as part of a hearing, and findings can be made in this regard only by a decision-maker who participated in the hearing and heard all the evidence.42 Finally, since the decision of the RPD is limited to a finding that the appellant was not credible, there was no analysis of the internal flight alternative or state protection. These issues-or at least one of them-must be analyzed before being able to conclude that the appellant has a well-founded fear of persecution. [46] Consequently, I have no other choice but to refer the matter to the RPD for re-determination. Naturally, it will have to do so by assessing the appellant's credibility in light of all the evidence in the record and by taking due account of the Guideline on Women Refugee Claimants Fearing Gender-Related Persecution.43 VII. REMEDY [47] For these reasons, the determination rejecting the appellant's refugee protection claim is set aside and the matter is referred to the RPD for re-determination. [48] The appeal is allowed. Alain Bissonnette Me Alain Bissonnette June 19, 2014 Date IRB translation Original language: French 1 Basis of Claim Form, pages 14, 19 and 22 of the Refugee Protection Division (RPD) record. 2 Idem, page 14 of the RPD record. 3 Idem, page 15 of the RPD record. 4 Idem. 5 Idem, page 16 of the RPD record. 6 Idem. 7 Idem, pages 81 to 84 of the RPD record. 8 This document is reproduced at page 87 of the RPD record. 9 This document is reproduced at pages 88 to 89 of the RPD record. 10 This document is reproduced at page 90 of the RPD record. 11 RPD decision, pages 3 to 11 of the RPD record. 12 Idem, paragraphs 19, 20 and 21, page 7 of the RPD record. 13 Romero, Damian Flores v. Canada (Minister of Citizenship and Immigration and Minister of Public Safety and Emergency Preparedness), No. IMM-2625-10, Rennie, June 24, 2011; 2011 FC 772, paragraphs 7 to 9. 14 RPD decision, page 7 of the RPD record. 15 Idem, paragraph 24, page 7 of the RPD record. 16 Idem, paragraphs 25 to 28, page 8 of the RPD record. 17 Idem, paragraphs 29 and 30, page 9 of the RPD record. 18 Idem, paragraphs 29 and 30, page 9 of the RPD record. 19 Idem, paragraph 34, page 10 of the RPD record. 20 Idem, page 11 of the RPD record. 21 Appellant's memorandum, paragraphs 15 to 20, pages 18 and 19 of the appeal record. 22 Idem, paragraphs 21 to 31, page 20 of the appeal record. 23 Idem, pages 20 and 21 of the appeal record. 24 Idem. 25 Iyamuremye v. Canada (Minister of Citizenship and Immigration), No. IMM-5282-13, Shore, May 26, 2014; 2014 FC 494, at paragraphs 39 and 40. 26 Immigration and Refugee Board of Canada (IRB), Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, which came into force on November 13, 1996. These Guidelines are available on the IRB website: http://www.irb.gc.ca/Eng/BoaCom/references/pol/GuiDir/Pages/GuideDir04.aspx. 27 Arevalo Zaldana v. Canada (Minister of Citizenship and Immigration), No. IMM-8-13, Annis, November 14, 2013; 2013 FC 1156, at paragraph 18. 28 Dunsmuir v. New Brunswick, 2008 SCC 9; [2008] 1 SCR 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. 29 Mesidor v. Canada (Minister of Citizenship and Immigration), No. IMM-2233-09, Shore, December 4, 2009; 2009 FC 1245, at paragraph 11, citing the decision of Justice Teitelbaum in Assadi v. Canada (Minister of Citizenship and Immigration), [1997] F.C.J. No. 331 (QL). 30 Ntunzwenimana v. Canada (Minister of Citizenship and Immigration), No. IMM-6821-05, Shore, June 29, 2006; 2006 FC 826, at paragraphs 45 and 47. 31 Idem, at paragraph 48. 32 Medina Canchon v. Canada (Minister of Citizenship and Immigration), No. IMM-3359-12, Noël, November 27, 2012; 2012 FC 1374, at paragraph 28. Basaa v. Canada (Minister of Citizenship and Immigration), No. IMM-9938-03, Snider, February 8, 2005; 2005 FC 201, at paragraph 10: ". . .a short delay in making a claim, with a reasonable explanation for the delay, cannot be determinative of a negative decision in a refugee claim." 33 Jamil v. Canada (Minister of Citizenship and Immigration), No. IMM-6643-05, Lemieux, June 21, 2006; 2006 FC 792, at paragraph 25. 34 RPD decision, paragraph 34, page 10 of the RPD record. 35 Aziza Mahamat Nour v. Canada (Minister of Citizenship and Immigration), No. IMM-8278-11, Scott, June 25, 2012; 2012 FC 805, at paragraph 37. Higbogun v. Canada (Minister of Citizenship and Immigration), No. IMM-2921-09, Russell, April 23, 2010; 2010 FC 445, at paragraphs 55 to 58. 36 Higbogun v. Canada (Minister of Citizenship and Immigration), No. IMM-2921-09, Russell, April 23, 2010; 2010 FC 445, at paragraphs 65 and 66. 37 Chairperson's Guideline 4, cited at footnote 50. 38 Alvarez Contreras v. Canada (Minister of Citizenship and Immigration), No. IMM-4087-08, Beaudry, April 23, 2009; 2009 FC 398, at paragraph 16, citing the Ward decision of the Supreme Court of Canada [1993] 2 S.C.R. 689 and its own decision in Hafeez v. Canada (Minister of Citizenship and Immigration), 2004 FC 1489, [2004] F.C.A. No. 1802 (QL). [T]he lack of subjective fear must result in the denial of a refugee claim because it is a fundamental component of the concept of persecution. Alvarez Contreras v. Canada (Minister of Citizenship and Immigration), No. IMM-4087-08, Beaudry, April 23, 2009; 2009 FC 398, at paragraphs 13 and 18, citing Hazara v. Canada (Minister of Citizenship and Immigration), 2002 FCT 1256, [2002] F.C.J. No. 1728 (QL), at paragraph 12. 39 Frederic v. Canada (Minister of Citizenship and Immigration), No. IMM-804-10, O'Reilly, November 8, 2010; 2010 FC 1100, at paragraph 11. 40 IRB, Chairperson's Guideline 7: Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division, effective December 1, 2003, amended December 15, 2012, at paragraphs 2.1 and 2.2. This Guideline is available on the IRB website. 41 Utrera v. Canada (Minister of Citizenship and lmmigration), No. IMM-2254-07, Shore, November 20, 2007; 2007 FC 1212, at paragraph 19, citing the UNHCR's Handbook on Procedures and Criteria for Determining Refugee Status. 42 Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177; the written reasons by Justice Wilson, at pages 213 and 214, are as follows: " ...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 (citation 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." 43 Cited at footnote 26 of this decision. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / No de dossier de la SAR : MB4-01193 17