MB5-00513

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. / N° de dossier de la SAR : MB5-00513 Private Proceeding / Huis clos Reasons and Decision - Motifs et décision Person who is the subject of the appeal XXXX XXXX XXXX XXXX XXXX XXXX Personne en cause Appeal considered / heard at Montréal, Quebec Appel instruit à Date of decision July 23, 2015 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Serge Silawo 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 XXXX, the appellant, who is a citizen of the Republic of the Congo, is appealing against the decision of the Refugee Protection Division (RPD). He is submitting that the RPD breached the principles of procedural fairness and that it erred in the assessment of his credibility and in its analysis of state protection. II. DETERMINATION OF THE APPEAL [2] Pursuant to section 111 of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) allows the appeal and refers the refugee protection claim to a differently constituted panel of the RPD for re-determination. III. BACKGROUND A. Basis of the claim [3] In the Basis of Claim Form (BOC Form), which he signed on September 23, 2014, the appellant states that, on XXXX XXXX, 2014, XXXX XXXX XXXX XXXX XXXX XXXX, XXXX XXXX XXXX of Congo-Brazzaville, XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX XXXX. He also states that the persons involved in this tragedy are family members and that his life is in danger because he is a troublesome witness.1 [4] In his BOC Form, the appellant states that, since his arrival in Canada, things are still tense between the two families involved in this tragedy. People were killed and the authorities were unable to prevent these killings or settling of accounts. He also states that he does not want to testify against his cousin, XXXX, because he fears that his associates would eventually kill him or his family.2 [5] Besides his BOC Form, the appellant, then referred to as the claimant, filed some documents into evidence before the RPD.3 B. RPD decision [6] The hearing before the RPD was held on November 27, 2014, and the decision to reject the refugee protection claim was rendered on January 6, 2015.4 [7] The RPD found that the claimant's account and testimony raised major inconsistencies that undermined his credibility.5 The RPD writes the following in its reasons: [translation] [24] First, the panel notes that, in his BOC Form, the claimant states that the murder occurred during the night of XXXX XXXX to XXXX, 2014. In his testimony, he stated that the incident occurred at approximately XXXX p.m. on XXXX XXXX, 2014. When asked to explain this inconsistency, he responded that XXXX was killed close to XXXX on XXXX XXXX, 2014. [25] In the panel's opinion, the exact date of the incident is important because it is a key incident in support of the refugee protection claim. Moreover, the claimant alleges that he became aware of the incident in the early morning of XXXX XXXX, 2014. The claimant alleges in his BOC Form that he fears for his life after witnessing an incident. However, at the hearing, he did not show that he had personal knowledge of this incident. Furthermore, he was unable to indicate when this incident occurred.... [27] Moreover, to explain the risk of reprisals against him if he returned to his country, the claimant alleges that he received a call from XXXX on XXXX XXXX, 2014, asking him not to testify against him. He told the panel that there were no other contacts. [28] However, in his BOC Form, the claimant states that, on approximately XXXX XXXX, 2014, he received four anonymous calls. When asked to explain these contradictions, he responded that [translation] "I was somewhat traumatized. I received a call from XXXX on XXXX XXXX, 2014, and four calls onXXXX XXXX XXXX, 2014." [29] The panel did not believe the claimant. Had he indeed received threatening calls, the panel considers that it would have been reasonable to believe that he would have said so clearly and without hesitation in his testimony. He did not witness the crime, and the panel does not see why the alleged murderer would ask him to keep quiet about something that he did not witness, especially since the evidence indicates that the suspects admitted to their crimes. The panel does not believe that the claimant received threatening calls.6 [8] The RPD also considered that the claimant did not rebut the presumption of state protection, noting that the murder suspects were apprehended by the police, had admitted to their crimes and were awaiting their judgment. The main witness was XXXX's wife, who had survived the crime and identified the suspects.7 C. Grounds of appeal and decision sought [9] In his memorandum, the appellant states that the RPD breached the principles of procedural fairness and erred in the assessment of his credibility and state protection.8 - Breach of procedural fairness [10] First, with regard to procedural fairness, the appellant criticizes the RPD for ruling as though the contradictions between the multiple versions from the newspapers and his version with regard to the date of the incident had been resolved to its satisfaction. However, in its decision, the RPD drew a negative inference on this point without giving him the opportunity to explain.9 - Errors in the credibility assessment [11] Then, with regard to his credibility assessment, the appellant submits that the RPD identified a discrepancy between the content of his BOC Form and his testimony that simply does not exist, as he never wrote that he witnessed the murders in question.10 [12] He also submits that, in its reasons for decision, the RPD characterizes his present fear by indicating that it is limited to his knowledge of the business connections between his two cousins, the murderer and the victim. However, he refers to his testimony before the RPD in which he stated that he fears XXXX, his associates and, furthermore, XXXX's family on her mother's side, even though the families have presently settled accounts. Consequently, he states that the RPD failed to take into account certain crucial details that he had provided to it.11 [13] He also submits that the RPD erred by considering that there was no longer any reason for him to fear anyone because XXXX's widow was the main witness and the murderers had been arrested. However, according to him, the RPD failed to take into account the fact that the Congolese police told him that he was a person of interest and that they would meet again. He adds that, although the assailants had been arrested and had admitted to their crimes, they are not exempt from judicial proceedings, suggesting that he could be summoned without regard for the intrafamily reprisals that would follow.12 [14] Finally, he states that the RPD identified an omission in his testimony that simply does not exist in relation to his clearly stating at the hearing that he received four anonymous threatening calls on XXXX XXXX.13 [15] Hence his conclusion that the RPD proceeded with a systematic and ill-considered rejection of both the documentary and testimonial evidence, committing serious errors of fact and law.14 - Errors in the analysis of state protection [16] Finally, with regard to state protection, the appellant submits that he rebutted the presumption of state protection with his testimony indicating that police officers had told him that they did not have the means to give him security guards and that he would have to be careful and let them do their job.15 [17] The appellant is asking the RAD to allow his appeal and give any directions that it considers appropriate.16 [18] The appellant did not present any new evidence on appeal within the meaning of subsection 110(4) of the IRPA. He also did not request that a hearing be held before the RAD. IV. APPROACH TO BE TAKEN IN THIS APPEAL A. Appellant's position [19] In his memorandum, the appellant states that the RAD has the jurisdiction to take into consideration all the facts of the case, examine with moderate deference the particularly determinative errors committed by the RPD and order a de novo hearing or, ultimately, render the determination that, in its opinion, the RPD should have made.17 B. Brief summary of certain Federal Court decisions [20] In Djossou, Justice Martineau rules 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.18 He invites the RAD to consider the three options before it (a true appeal, an appeal de novo, and a hybrid appeal) with an open mind.19 In the conclusion of that decision, Justice Martineau states that it does not appear appropriate to him to judicially impose any standard of deference on the RAD, until such time as the Federal Court of Appeal or the Supreme Court of Canada has decided the issue definitively. He states that, in the interim, the onus will be on the RAD to review the IRPA and to adopt a new test based on an analysis that will take 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 a 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.20 [21] 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.21 In Sajad and Bui, Justice Shore finds 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.22 That said, the RAD must conduct an independent examination of the record on appeal; in other words, it must conduct its own analysis of the evidence, consider the parties' submissions and then confirm or set aside the RPD's findings regarding the credibility of the claimant(s).23 In Balde, Justice Mosley indicates that the different strands in the jurisprudence that have emerged to date from the Federal Court all accept the principle that the RAD must defer to the RPD's findings of credibility, since the RAD does not typically hold oral hearings and is therefore at a disadvantage in comparison to the RPD.24 [22] In Green, Justice Kane considers that, in terms of state protection, the RAD must conduct an independent assessment of the evidence with regard to the adequacy of state protection or the applicant's efforts to seek state protection.25 C. Independent examination with a measure of deference on credibility issues [23] Drawing as much as possible on the decisions rendered to date by the Federal Court, I am of the opinion that, in this case, while conducting an independent examination of the evidence, I must show a measure of deference to the RPD's findings concerning the appellant's credibility. However, similar deference does not apply to the question of procedural fairness. When an argument is raised regarding a lack of procedural fairness, one must simply determine whether the breach of procedural fairness has been established. V. ANALYSIS OF THE MERITS OF THE APPEAL [24] After conducting an independent examination of the record, I conclude that the RPD complied with the principles of procedural fairness but that it erred in its assessment of the appellant's credibility and in its analysis of state protection. Here is why. A. Principles of procedural fairness [25] Where procedural fairness is at issue, the proper approach is to ask whether the requirements of natural justice have been met in the particular circumstances of the case.26 In a claim for refugee protection before the RPD, procedural fairness ensures that the person claiming refugee protection understands the procedure, has a reasonable opportunity to tender any evidence to support their claim and has the opportunity to persuade the RPD that their claim is well founded.27 A breach of procedural fairness will not 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 a breach of procedural fairness, and no purpose would be achieved by referring the matter to the RPD for re-determination, the decision should stand.28 [26] In his memorandum, the appellant states that the RPD breached procedural fairness because, when his lawyer presented his submissions, the RPD intervened and declared that it would consider the claimant's evidence, which seems more credible than that of the journalists, who were writing a few days after the fact and who were more removed from the incident in XXXX 2014 than the claimant and his family.29 [27] I listened attentively to the excerpt from the recording cited by the appellant in his memorandum and I am of the opinion that, by intervening as it did, the RPD did not suggest that what the claimant stated, at any given time, was found credible and, consequently, that there was no longer any reason to discuss it. The RPD actually stated, instead, that between the versions of the journalists and that of the claimant, it would consider that of the claimant, which appears more credible than the versions of the journalists. Furthermore, in its reasons for decision, the RPD compared what the claimant writes in his BOC Form to what he stated at the hearing, including when he gave his explanation, in order to finally come to the conclusion that the exact date of the incident is important because it is a key incident in support of the refugee protection claim. Later in my decision, I will revisit this analysis in relation to the credibility assessment. For the moment, I simply conclude that the RPD did not therefore suggest that what the claimant stated, at any given time, regarding this incident was found credible. [28] I add that, more generally, the appellant understood the procedure, had a reasonable opportunity to tender evidence in support of his refugee protection claim and had the opportunity to persuade the RPD that his claim is well founded. [29] Consequently, having analyzed the situation realistically and practically, as a reasonable and right-minded person would do by considering all the required information, I conclude that the appellant did not establish that the RPD breached any principle of procedural fairness. B. Credibility assessment [30] In contrast, having carefully read the RPD's reasons for decision, I am of the opinion that the appellant's arguments regarding the errors committed in relation to his credibility have merit. [31] The RPD writes that, in his memorandum, the claimant alleges that he witnessed the murders of his family members, which occurred during the night of XXXX XXXX to XXXX, 2014, when, in his testimony, he stated that he had not witnessed these murders, which occurred during the night of XXXX XXXX to XXXX, 2014.30 [32] However, having carefully read his BOC Form, I note that the claimant never writes that he witnessed the murders of his family members.31 [33] Moreover, as the RPD itself writes, the claimant provided an explanation in his testimony after stating that the incident occurred at approximately XXXX p.m. on XXXX XXXX, 2014. The explanation is that XXXX was killed at close to XXXX on XXXX XXXX, 2014. The RPD did not analyze the reasonableness of this explanation in its reasons for decision. [34] In its reasons for decision, the RPD includes the factors that led it to doubt the claimant's credibility, factors that are actually not part of the evidence on the record. For one, the claimant never stated or writes that he witnessed the murders in question. For another, he also did not state that he was an important witness because he had personal knowledge of the incident. According to his BOC Form, his cousin wanted to be able to rely on him to support him, in other words, to help him exonerate himself, and the police interrogated him because he knew the people involved in the tragedy.32 [35] I am of the opinion that these errors undermined the RPD's subsequent analysis of the claimant's fear if he had to return to his country. In this regard, I would like to point out that the RPD did not make any reference to the letter submitted as evidence by the claimant's spouse which corroborates his allegations in terms of his reasons for believing that his life would be threatened if he had to return to his country, particularly because there was a type of blood feud going on within his family.33 C. Analysis of state protection in the Republic of the Congo [36] It is important to bear in mind that the test for whether state protection might reasonably be forthcoming must be an objective one.34 [37] To rebut the presumption of state protection, relevant, reliable and convincing evidence that this protection is inadequate or non-existent must be adduced, with the applicable standard of proof being the balance of probabilities.35 Where a state is in effective control of its territory, has military, police and civil authorities in place, and makes serious efforts to protect its citizens, the mere fact that it is not always successful at doing so will not be enough to rebut the presumption of the existence of state protection.36 That being said, state protection does not have to be perfect, but it must be adequate.37 [38] Citizens have the obligation to seek protection from the authorities in their own country unless it is objectively reasonable not to, in other words, if this protection would not be forthcoming anyway.38 In that respect, it is unreasonable to require refugee protection claimants to put their lives or the lives of their families in danger or to have to suffer greater persecution (which may consist of repeated discriminatory acts amounting to persecution) simply to demonstrate that the state protection being sought is inadequate.39 That being said, the fact that police officers may act illegally in a specific region of a country does not support a conclusion that the state, as a whole, is an agent of persecution or that it fails to provide protection to the victims of these officers' actions.40 In addition, not solving a specific crime does not prove that the police are ineffective.41 The fact that there are deficiencies with respect to fundamental rights must be considered in the assessment of the presumption of a state's protection for its citizens.42 [39] However, in this case, the RPD did not make any reference to the information included in the documentary evidence relating to the adequacy of the protection provided in the Republic of the Congo by the authorities of that country or the human rights issues identified there.43 [40] As long as the RPD did not believe the credibility of the claimant's allegations, it did not have to conduct an analysis of state protection in the Republic of the Congo. However, it decided to conduct this analysis anyway. I am of the opinion that the RPD's analysis was insufficient when it simply stated that the suspects were apprehended and had admitted to their crime and that the claimant did not rebut the presumption of state protection. D. The matter must be referred to the RPD [41] Even if, in my opinion, the RPD's determination must be set aside, I find that I am unable to draw my own conclusions as to whether the appellant is a refugee or a person in need of protection. [42] Although the recording of the hearing regarding his refugee protection claim is part of the record, the fact remains that I cannot substitute my own determination for that rendered by the RPD without hearing the evidence that was presented before it. Furthermore, based on my interpretation of the case law, the credibility of the person who is the subject of the appeal can only be analyzed as part of a hearing and conclusions can only be drawn by a decision-maker who participated in that hearing and who heard all the evidence.44 Consequently, I am of the opinion that the matter must be referred to the RPD for re-determination. VI. CONCLUSION [43] For these reasons, I set aside the RPD's determination and refer the refugee protection claim to a differently constituted RPD panel for re-determination. [44] The appeal is allowed. Alain Bissonnette Me Alain Bissonnette July 23, 2015 Date IRB translation Original language: French 1 BOC Form, pages 16 and 22 of the RPD record. 2 Idem, page 18 of the RPD record. 3 The claimant's list of documents is reproduced at pages 80, 81 and 118 of the RPD record. The documents themselves are reproduced at pages 82 to 115 and 119 and 120 of the RPD record. 4 RPD's reasons and decision, pages 3 to 9 of the RPD record. 5 Idem, at paragraph 12, page 5 of the RPD record. 6 Idem, at paragraphs 24, 25, 27, 28 and 29, pages 7 and 8 of the RPD record. 7 Idem, at paragraphs 33 to 36, pages 8 and 9 of the RPD record. 8 Appellant's memorandum, February 17, 2015, pages 13 to 30 of the appeal record. 9 Idem, at paragraphs 31 to 45, pages 19 to 22 of the appeal record. 10 Idem, at paragraphs 46 to 50, page 23 of the appeal record. 11 Idem, at paragraphs 51 to 55, pages 24, 25 and 26 of the appeal record. 12 Idem, at paragraphs 56 to 63, pages 26 and 27 of the appeal record. 13 Idem, at paragraphs 64 and 65, pages 27 and 28 of the appeal record. 14 Idem, at paragraphs 66, 67 and 68, page 28 of the appeal record. 15 Idem, at paragraphs 69 to 76, pages 28 and 29 of the appeal record. 16 Idem, page 30 of the appeal record. 17 Idem, at paragraphs 27, 28 and 29, pages 16 and 17 of the appeal record. 18 Djossou v. Canada (Minister of Citizenship and Immigration), No. IMM-7980-13, Martineau, November 14, 2014; 2014 FC 1080, at paragraph 55. 19 Idem, at paragraph 55. 20 Idem, at paragraph 91. 21 Akuffo v. Canada (Minister of Citizenship and Immigration), No. IMM-6640-13, Gagné, November 12, 2014; 2014 FC 1063, at paragraphs 34 to 39. 22 Sajad v. Canada (Minister of Citizenship and Immigration), No. IMM-926-14, Shore, November 21, 2014; 2014 FC 1107, at paragraph 22. Bui v. Canada (Minister of Citizenship and Immigration), No. IMM-1654-14, Shore, November 28, 2014; 2014 FC 1145, at paragraph 25. See also to the same effect: Malambu v. Canada (Minister of Citizenship and Immigration), No. IMM-7972-14, Noël, June 17, 2015; 2015 FC 763, at paragraph 42. 23 Hamidi v. Canada (Minister of Citizenship and Immigration), No. IMM-5049-14, Shore, February 26, 2015; 2015 FC 243, at paragraphs 1, 22, 23, 24 and 30. Brodrick v. Canada (Minister of Citizenship and Immigration), No. IMM-5986-13, Diner, April 17, 2015; 2015 FC 491, at paragraphs 34, 35 and 36. Abdul Fasit Fida v. Canada (Minister of Citizenship and Immigration), No. IMM-5921-14, Zinn, June 24, 2015; 2015 FC 784, at paragraph 10: "The RAD examined the various findings of the RPD upon which it based the finding that the applicant was not credible. It is clear from the decision that it conducted its own independent analysis of that evidence." 24 Balde v. Canada (Minister of Citizenship and Immigration), No. IMM-3724-14, Mosley, May 12, 2015; 2015 FC 625, at paragraph 25. In the same vein, also see: Palden v. Canada (Minister of Citizenship and Immigration), No. IMM-4907-14, Locke, June 25, 2015; 2015 FC 787, paragraphs 10 and 11. 25 Green v. Canada (Minister of Citizenship and Immigration), No. IMM-578-14, Kane, April 27, 2015; 2015 FC 536, at paragraphs 43 and 45. 26 Wai Kheong Ching v. Canada (Minister of Citizenship and Immigration), No. IMM-1272-14, Kane, June 9, 2015; 2015 FC 725, at paragraph 75, citing Baker, [1999] 2 SCR 817, at paragraphs 23 to 28, she writes: "... the Supreme Court of Canada set out a list of factors affecting the duty of procedural fairness and emphasized that the content of the duty must be determined in the specific context of each case. The Court noted that the factors were not exhaustive and reiterated that procedural fairness is based on the principle that individuals affected by decisions should have the opportunity to present their case and to have decisions affecting their rights and interests made in a fair and impartial and open process 'appropriate to the statutory, institutional, and social context of the decision.'" Zheng v. Canada (Minister of Citizenship and Immigration), No. IMM-1998-11, Mosley, November 25, 2011; 2011 FC 1359, at paragraph 7. Bokhari v. Canada (Minister of Citizenship and Immigration), No. IMM-3907-10, Harrington, March 22, 2011; 2011 FC 354, at paragraph 13. 27 Nemeth v. Canada (Minister of Citizenship and Immigration), No. IMM-2522-02, O'Reilly, May 14, 2003; 2003 FCTD 590, at 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." 28 Fei Zheng v. Canada (Minister of Citizenship and Immigration), No. IMM-1998-11, Mosley, November 25, 2011; 2011 FC 1359, at 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 and Labrador Offshore Petroleum Board [1994] 1 S.C.R. 202. 29 Appellant's memorandum, at paragraphs 34 to 45, pages 19 to 22 of the appeal record. 30 RPD's reasons and decision, at paragraph 13, page 5 of the RPD record. 31 BOC Form, pages 16, 17 and 18 of the RPD record. 32 Idem, page 17 of the RPD record. 33 This letter is reproduced at pages 119 and 120 of the RPD record. 34 Judge v. Canada (Minister of Citizenship and Immigration), No. IMM-5897-03, Snider, August 9, 2004; 2004 FC 1089, at paragraph 10. 35 Canada (Citizenship and Immigration) v. Flores Carrillo, No. A-225-07, Létourneau, Nadon, Sharlow, March 12, 2008, 2008 FCA 94, at paragraphs 30 and 38; Ruiz Martinez v. Canada (Citizenship and Immigration), No. IMM-1563-09, Gibson, November 16, 2009, 2009 FC 1163, at paragraph 42. 36 M.E.I. v. Villafranca, Igancio (F.C.A., No. A-69-90), Hugessen, Marceau and Décary, December 18, 1992. 37 Canada (Citizenship and Immigration) v. Flores Carrillo, (No. A-225-07), Létourneau, Nadon, Sharlow, March 12, 2008, 2008 FCA 94, at paragraphs 25 and 30; Valerio Cueto v. Canada (Citizenship and Immigration), No. IMM-232-09, Frenette, August 10, 2009, 2009 FC 805, at paragraph 29. 38 Trejo Soto v. Canada (M.C.I.), No. IMM-282-05, Pinard, December 20, 2005, 2005 FC 1654, at paragraph 7; Castro, Karen Rutter v. M.C.I., No. IMM-4187-06, Kelen, January 17, 2007, 2007 FC 40, at paragraph 14. 39 Ramirez Chagoya v. Canada (Minister of Citizenship and Immigration), No. IMM-4705-07, Martineau, June 9, 2008, 2008 FC 721, at paragraph 5. 40 Luthra v. Canada (Minister of Citizenship and Immigration), No. IMM-1385-08, Teitelbaum, September 22, 2008, 2008 FC 1053, at paragraph 13 "[I]t is not automatic that persecution by one particular agent of the state will result in the absence of state protection.... [A] tribunal should not jump to the conclusion that the entire state is the persecutor on the basis of the actions of a few. Where the alleged persecutors are confined to a specific location or are rogue elements acting outside their jurisdiction, the tribunal must still assess whether it was objectively reasonable for the claimant to have sought the protection of the state."; Ghotra v. Canada (Minister of Citizenship and Immigration), No. IMM-233-09, Beaudry, July 28, 2009, 2009 FC 764, at paragraph 19: "...[A] tribunal should not automatically conclude that the actions of a small number of people constitute persecution by the state. When the alleged persecutors are found in a specific location, as in this case, the tribunal must determine if it is objectively reasonable for the applicant to seek protection in his or her country." 41 Paguada v. Canada (Minister of Citizenship and Immigration), No. IMM-3861-08, de Montigny, April 6, 2009, 2009 FC 351, at paragraph 22. 42 Vigueras Avila v. Canada (Minister of Citizenship and Immigration), No. IMM-4106-05, Martineau, March 20, 2006, 2006 FC 359, at paragraph 31: "...Of course, if corruption is widespread it may ultimately lead to undermining the trust individuals may have in government institutions, including the judicial system. As the Supreme Court has noted, 'democracy in any real sense of the word cannot exist without the rule of law' (Reference Re Secession of Quebec, [1998] 2 S.C.R. 217, at paragraph 67). Due process of law and equality before the law are the vital strength of any democracy and create a legitimate expectation in individuals that the state will do what is necessary to go after criminals and bring them to justice, and if necessary to stamp out corruption. The independence and impartiality of the judiciary and its components are not negotiable. These are fundamental values in any country which claims to be a true democracy. Therefore, the degree to which a state tolerates corruption in the political or judicial apparatus correspondingly diminishes its degree of democracy...."; Zaatreh v. Canada (Minister of Citizenship and Immigration), No. IMM-3846-09, Russell, February 23, 2010, 2010 FC 211, at paragraph 45: "After reviewing the Decision and the record, I have to conclude that the RPD's state protection analysis contains reviewable errors. Generally speaking, the Board failed to review the evidence of inadequate state protection at an operational level and it failed to consider the evidence about persons similarly situated to the Applicant who have been let down by the state. As in Balogh, the RPD in this case did not test the presumption of state protection against the evidence led by the Applicant...." 43 Immigration and Refugee Board (IRB), National Documentation Package on the Republic of the Congo, May 30, 2014. The index of this version of the package is reproduced at pages 24 to 29 of the RPD record. 44 Singh v. Minister of Employment and Immigration, [1985] 1 S.C.R. 177, the reasons written by Justice Wilson at 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...." --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ 1 RAD.25.02 (April 9, 2013) Disponible en français RAD File No. / N° de dossier de la SAR : MB5-00513 14