MB5-01418

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 : MB5-01418 Private Proceeding / Huis clos Reasons and Decision ? Motifs et décision Person who is the subject of the appeal XXXXX XXXXX Personne en cause Appeal considered at Montréal, Quebec Appel instruit à Date of decision October 28, 2015 Date de la décision Panel Me Alain Bissonnette Tribunal Counsel for the person who is the subject of the appeal Me Stéphanie Valois 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] XXXXX XXXXX, the appellant, a citizen of Cambodia, is appealing against the decision of the Refugee Protection Division (RPD) alleging that the decision contains many errors with respect to the denial of the motion for recusal and the assessment of her credibility. II. DETERMINATION OF THE APPEAL [2] Under subsection 111(1) of the Immigration and Refugee Protection Act (IRPA), the Refugee Appeal Division (RAD) dismisses the appeal and confirms the RPD's determination, that is, that XXXXX XXXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA. III. BACKGROUND A. Summary of alleged facts [3] In her memorandum, the appellant summarizes the relevant facts as follows: - she is a 62-year-old woman from Cambodia; - in her country, she was a farmer, but local officials were pressuring her to sell her land to a powerful businessman, XXXXX XXXXX, who had powerful connections; - she was threatened with arrest and with being sent to prison; - in XXXXX 2014, after receiving more threats, she requested that provincial officials intervene, but the local officials then accused her of defamation and threatened to take her to court and send her to prison; - on XXXXX, 2014, shots were fired at her door; the police did not intervene; - she left for Siem Reap, where she took steps to come to Canada, which is where her daughter lives; once in Canada, she claimed refugee protection.1 [4] Before the RPD, the appellant, referred to as the claimant at the time, submitted a number of documents in evidence.2 B. The RPD decision [5] The hearing before the RPD took place on November 25, 2014, December 8, 2014, and January 19, 2015, and the decision to reject the refugee protection claim was rendered on March 20, 2015.3 [6] In its reasons for decision, the RPD stated that it considered the Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution (Guideline 4).4 [7] In its reasons for decision, the RPD first stated why it denied the motion for recusal filed by counsel for the claimant.5 The essence of its reasoning appears in the following three paragraphs: [21] The panel considers that given the circumstances where the claimant was invoking a medical reason for not being able to participate in her hearings and after repeated instructions given to submit a medical certificate or medical information that would explain her incapacity which she did not submit until very late, the panel considers there is not a reasonable apprehension of bias on the part of the panel and that the panel's insistence on having medical documents or information that would explain the claimant's incapacity was justified. [22] Regarding counsel's allegation that the panel member interjected and raised his voice while she was making it an objection, the panel was willing to hear counsel's objection, but needed to caution her before she continued that there are limits to how long he could spend to make her objection and also that her objection, if it influences the answer that the claimant may give to a question the panel is asking, the claimant may have to be excused from the room while the panel hears counsel's objection in conference. [23] The panel recognizes counsel's right to make objections during the hearing, but recognizes the need to conduct a hearing in an orderly fashion and in a way that would allow the panel to continue asking necessary questions.6 [8] The RPD then explained why the claimant's testimony was not credible. [9] First, it found that the fact that the claimant's son still farms on her land today in her absence undermines the credibility of her allegations that, in the past, her attackers used false documents and threatened her to try to take her land.7 [10] Then, it stated that it would have expected the claimant to have requested a higher amount for the acquisition of her land than the amount offered by her attackers.8 [11] The RPD then found it unreasonable that the claimant would have refused to give her thumb print on a document if she did not want to give it. It stated the following in its reasons for decision: [35] The panel finds the claimant's response unsatisfactory with regard being compelled to put her thumb print on a blank piece of paper that became a fake agreement to sell her land to her aggressors. Given that the claimant said she had not heard of anyone being harmed or torture by the CPP (Cambodia People's Party) for refusing to sign or to give a thumbprint in support, the panel finds it unreasonable that the claimant would not refuse to give a thumbprint on a document if she did not want to give it, in particular if she were putting her thumb on a blank piece of paper.9 [12] Then, the RPD identified an omission on the part of the claimant, as she did not state in an immigration form that she had lived in hiding for three months in Siem Reap.10 [13] The RPD also identified contradictions with respect to when the claimant's husband apparently died, which could render the land purchase contract devoid of any probative value.11 It continued its analysis, stating that, even assuming that the contract was valid, the claimant did not submit any documentary evidence that the land had been transferred to her after her husband's death.12 [14] The RPD also identified another contradiction regarding the work accomplished by the claimant up until August 2014, if, since May 2014, she had been living in hiding.13 [15] Finally, the RPD found that the claimant could give away her land or sell it for $10,000, which would mean that she would no longer be threatened.14 C. Grounds of appeal and remedy sought [16] In her memorandum, the appellant submits that the RPD's decision contains many errors with respect to the denial of the motion for recusal and the assessment of her credibility.15 [17] Regarding the motion for recusal, the appellant submits that the RPD's attitude toward her demonstrated a lack of empathy and flexibility and that even before the RPD started the hearing, it doubted her good faith.16 Counsel for the appellant made the following written submissions to the RPD: [Translation] At the first two hearings, you questioned the claimant on her state of health, making her ill. It seems clear that the panel did not believe the claimant when she stated that she was hospitalized for two weeks and had a very serious XXXXX XXXXX. The hospitalization was confirmed by the medical document in evidence. Members should be showing empathy and be capable of communicating with refugee protection claimants, who are very stressed because of the hearing and because of everything they have experienced. You did not greet the claimant upon her arrival or ask her how she was feeling.17 [18] The RPD's attitude toward counsel for the appellant is also raised as the second ground for recusal, since, during the hearing, the member raised his voice when counsel wanted to make an objection.18 [19] Furthermore, regarding the assessment of her credibility, the appellant submits that the RPD did not consider the context, which was nevertheless described during the hearing, when it criticized her for failing to refuse to give her fingerprint on a document and for not negotiating the price for her property.19 [20] She also contends that, for the sale to be completed, she has to be present in Cambodia. Thus, if she returned to her country, she fears that the pressure on and threats against her would start again.20 [21] Finally, regarding her last address, she submits that the RPD disregarded the evidence filed with respect to the requirements for registering an identity card and family booklet and the fact that, even though she lived at another address for the three months preceding her arrival in Canada, it was not an official or permanent address.21 [22] The appellant is asking the RAD to allow her appeal.22 [23] In her appeal, the appellant is not submitting new evidence and is not asking for a hearing to be held before the RPD.23 IV. THE APPROACH TO BE TAKEN IN THIS APPEAL A. The position of the appellant [24] In her memorandum, the appellant submits that as a specialized tribunal, the RAD has jurisdiction to hear appeals de novo, and that it must analyze the evidence before it and draw its own conclusions, owing no particular deference to the RPD.24 B. A brief summary of some decisions of the Federal Court [25] In Akuffo, Justice Gagné finds that, when no hearing is held before the RAD, the latter owes deference to the RPD's credibility findings, even though there are differing views within the Federal Court regarding the level of deference to be given.25 [26] In Sajad and Bui, Justice Shore finds that the RAD must show a certain level of deference to the RPD's findings with respect to a claimant's credibility.26 That said, the RAD must conduct an independent assessment of the appeal record, in other words, it must conduct its own assessment of the evidence, consider the parties' submissions and then confirm or set aside the RPD's findings with respect to the credibility of the claimant(s).27 [27] In Balde, Justice Mosley states that the various discernable lines of jurisprudence to date within the Federal Court all accept the principle that the RAD must show deference to the RPD's credibility findings, since the RAD typically does not hold oral hearings and is thus at a disadvantage in comparison to the RPD.28 [28] In Shahidi, Justice Mactavish states that where an issue of procedural fairness arises, it is important to determine whether the process followed by the decision-maker satisfied the level of fairness required in all of the circumstances of the case.29 C. An independent assessment with some deference for credibility [29] Based on the decisions rendered to date by the Federal Court, I am of the opinion that, in this case, in conducting an independent assessment of the record, I must show deference to the RPD's findings with respect to the appellants' credibility that are based on their testimony;30 however, similar deference does not apply to issues of procedural fairness. [30] For procedural fairness, the approach to adopt is to consider, from the outset, whether the RPD's decision is correct. In other words, I must conduct my own assessment and then determine whether I agree with the RPD member's conclusion that he or she had respected the principles of procedural fairness. V. ANALYSIS OF THE MERITS OF THE APPEAL [31] Following an independent assessment of the record, I found that the RPD did not show bias and that it did not commit an error in its credibility assessment. Let me explain. A. Principles of procedural fairness [32] Where 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.31 In a refugee protection claim before the RPD, procedural fairness ensures that the person claiming refugee protection understands the proceedings, has a reasonable opportunity to tender evidence that supports his or her claim and is given a chance to persuade the RPD that his or her claim is well-founded.32 A breach of procedural fairness will not necessarily result in relief in each 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 remitting the matter to the RPD for reconsideration, the decision should stand.33 [33] Given the individualistic nature of a credibility finding, it is necessary for the RPD to be particularly careful to be and to appear to be neutral. In a context where it is usually the refugee protection claimant's only opportunity to be heard in person and orally, it goes without saying that the conduct of the decision-maker responsible for assessing the credibility of people concerned must, at all times, be above reproach and objective and demonstrate that the decision-maker is sensitive to their personal situation and interested in hearing their testimony.34 In addition, the decision-maker must avoid any conduct that could be interpreted as constituting a reasonable apprehension of bias35 or even a mere appearance of bias.36 That means that maintaining the appearance of impartiality of the Canadian refugee protection system must be reflected on a day-to-day basis and in how the members of the RPD prepare, hear and decide cases. A decision-maker with the Immigration and Refugee Board (IRB) must demonstrate the same impartiality that a judge must have. In this context, impartiality refers to the state of mind or attitude of a decision-maker in relation to the issues and the parties in a particular case, and impartiality must be reflected in an absence of bias, actual or perceived.37 [34] That said, the appellant has the burden of establishing that the RPD, in this case, did act in a manner that corresponds to an appearance of bias, as mere suspicion is not sufficient,38 on the understanding that an allegation of bias is a serious allegation, the proof of which rests on the party making it, which should not be made lightly and must be supported by substantive and concrete evidence.39 [35] The approach for applying the bias test is well established: . . . the apprehension of bias must be a reasonable one held by reasonable and right-minded persons, applying themselves to the question and obtaining thereon the required information. . . . [T]hat test is "what would an informed person, viewing the matter realistically and practically-and having thought the matter through-conclude..."40 Fairness and impartiality must be both subjectively present and objectively demonstrated to the informed and reasonable observer. If the words or actions of the presiding judge give rise to a reasonable apprehension of bias to the informed and reasonable observer, this will render the trial unfair.41 [36] The appellant submits that the RPD's attitude toward her demonstrated a lack of empathy and flexibility and that even before the hearing started, the RPD doubted her good faith. She also contends that the RPD's attitude toward her counsel was problematic because, during the hearing, the member raised his voice when her counsel wanted to make an objection. [37] After listening to the recording of the hearing before the RPD and reading the reasons for decision, I find that the RPD did not show bias, nor an appearance of bias. [38] At the hearing on November 25, 2014, the RPD took the time to verify a number of issues concerning the possibility of an abandonment and regarding the application to change the date. Although it is credible that the member was a little slow to make his decisions that day, the fact remains that he always acted in a respectful and courteous manner during that hearing.42 [39] During the hearing on December 8, 2014, after counsel for the claimant stated that her client was not in any state to testify, the member asked the claimant questions, and the claimant replied that she was taking medication and that she was not feeling well. The member continued with his questioning until the claimant had to be taken out of the room because she was experiencing discomfort. During that exchange, it was clear that the claimant had difficulty talking. During that exchange, her counsel intervened to express that she did not understand the attitude of the member, who seemed to think that she and her client were not telling the truth. The member explained that there was missing information, especially regarding the operation that the claimant apparently had. Counsel replied that, at the hearing on November 25, her son-in-law had testified to that effect. After the claimant left the hearing room, exchanges ensued between the member and counsel. The tone was polite and respectful by both parties. Counsel did not ask for the recusal of the member or raise an appearance of bias in respect of him. The member ultimately decided to commence abandonment proceedings and stated that that would be the first issue to address next time.43 [40] During the hearing on January 19, 2015, the panel member addressed the issue of whether to determine that the proceeding had been abandoned, stated that he was not totally satisfied with the medical documents submitted in evidence, and questioned the claimant, who replied that she was feeling better and was ready to proceed. In the end, the member decided to not proceed with the abandonment.44 [41] Subsequently, again during the hearing on January 19, 2015, although it is true that the panel member sometimes asked questions that were long and that he at times, according to the common expression, jumped into the fray, I am of the opinion that he still remained polite and courteous. That said, it is true that at some point he raised his voice when counsel for the claimant wanted to make an objection, told her that he wanted to finish his question, asked her to be patient, and told her that she could make her objection when he was finished. One minute later, counsel intervened again and stated that that was not the way to proceed when an objection is made. The member then asked counsel to make her objection, which she did, asking the member to split his questions up, explaining that the claimant had a basic education. The member then acknowledged that that was a good suggestion and asked more simple questions, addressing one topic at a time.45 The hearing then continued in a calm and courteous climate. [42] Members of the IRB must, in carrying out their duties, accommodate all participants so that they may participate effectively in a proceeding, take into account social and cultural differences and respect human rights.46 In this case, I am of the opinion that the member did just that. That said, the member took a lot of time to ask questions about his concerns and also to explain his interim decisions. Regardless, his conduct still seems to me to be consistent with one of the objectives of the IRPA, that is, to establish fair and efficient procedures that will maintain the integrity of the system, while holding Canada's respect for the human rights and fundamental freedoms of all human beings.47 In my view, the brief outburst toward the end of the hearing, when counsel for the claimant wanted to make an objection, did not adversely affect the fairness of the hearing and does not support the finding that there was a reasonable apprehension of bias or even the appearance of bias on the part of the member. [43] In short, after viewing the matter realistically and practically like a reasonable and right-minded person knowing all the necessary information on the subject, I find that a reasonable apprehension of bias or even an appearance of bias was not objectively demonstrated in this case. B. The credibility assessment [44] Regarding credibility, there must be a certain level of deference to the RPD's findings, specifically concerning the testimony of the refugee protection claimant. It is important to remember that "in determining an application for refugee status, it was up to the female applicant to establish, on a balance of probabilities, the facts on which she based her application."48 The RPD is entitled to make findings based on implausibility, common sense and rationality.49 Non-credibility on an important aspect of the claim can amount to a finding that there is no credible evidence on which the claim can be based.50 [45] In my view, after hearing the claimant's testimony and reading the evidence submitted before it, the RPD was justified in making the finding it did. In fact, how can one think that members of the local authorities associated with the party in power did not carry out their threats to confiscate the claimant's land or did not use the agreement of purchase and sale that they possessed to seize it, if it is true that they are so influential and associated with a very influential businessman in a country where corruption is widespread? In my opinion, plain common sense provides a basis for thinking and concluding that the claimant's testimony and written statements to that effect are inconsistent. In other words, regarding the alleged facts, I am of the view that the claimant did not meet the applicable standard of proof, that is, the balance of probabilities.51 [46] The arguments that the RPD erred in finding that the appellant should have asked to sign a complete document or even that she should have negotiated the price of her land must be rejected as those findings are not the determinative elements of the RPD decision. [47] In her memorandum, the appellant states that she is the owner of the land and that, for the sale to be valid, the sale must be completed between her and the buyers. She added that by leaving Cambodia with her title document, the local authorities and the businessman involved cannot proceed with the transaction.52 [48] First, a close reading of the land purchase contract filed in evidence does not support the finding that the appellant still owns the land today, because the contract dated XXXXX 1998, simply states that on that date, the land in question was purchased by her spouse, XXXXX XXXXX.53 [49] Second, the appellant did not file, neither before the RPD nor the RAD, a document that demonstrates that, since the death of her spouse on XXXXX, 1998, to present, she in fact owns the land in question. The failure to file supporting documentation that it is reasonable to expect may have an impact on a refugee protection claimant's credibility.54 It is clear from rule 11 of the RPD Rules55 that a claimant has a duty to provide documents and other elements in support of the refugee protection claim. The English version is more eloquent than the French version in that respect: "The claimant must provide . . . ."56 However, let us not forget that in French, the present tense is sufficient to express the imperative nature of a rule. The key here is that a person's lack of diligence in that he or she did not try to obtain an important document that could have corroborated his or her testimony can affect his or her credibility.57 [50] Finally, according to the logic of the appellant's allegations, the authorities she claims to fear are clearly ready to act illegally. In addition, according to the documentary evidence, in Cambodia, for some years there has been a campaign in the property sector, with the result that land is assessed so that it can be divided up and land titles are issued mainly for residential plots and rice fields.58 In a context where corruption is widespread, the judiciary is weak and subject to political influence and freedom of the press is very constrained.59 All of this information militates for the rejection of the appellant's statement that the local authorities are waiting for her return to Cambodia to legally finalize the transaction that was purportedly initiated by falsifying a document. [51] Furthermore, I am of the opinion that the argument that the RPD erred regarding the claimant's address must be rejected. In form IMM 5669, in response to question 12, the claimant stated that from XXXXX 2004 to XXXXX 2014 she lived at the following address: XXXXX XXXXX, XXXXX XXXXX, in the city of Battam Bung in the province of Moung Russ in Cambodia.60 That is also the same address given in her visa application.61 It is clear that the appellant did not state in those documents that she had lived, since May 2014, in another city, which she stated in her BOC Form.62 The explanation that she had provided her official address does not hold water, since question 12 of form IMM 5669 clearly asks for all of the person's addresses in the last 10 years. By signing the declaration, the appellant also declared that the information provided in that form was true, complete and correct. [52] After an independent assessment of the record as a whole, I conclude that the RPD did not commit an error in its assessment of the claimant's credibility. VI. CONCLUSION [53] For these reasons, I confirm the RPD's determination that XXXXX XXXXX is not a "Convention refugee" under section 96 of the IRPA or a "person in need of protection" under section 97 of the IRPA. [54] The appeal is dismissed. Alain Bissonnette Me Alain Bissonnette October 28, 2015 Date IRB translation Original language: French 1 Memorandum of the appellant, page 12 of the appeal record. 2 The list of those documents is at page 28 of the RPD record. The documents are reproduced at pages 29 to 83 of the RPD record. The Basis of Claim Form (BOC Form) is reproduced at pages 14 to 26 of the RPD record. 3 RPD reasons and decision, pages 3 to 12 of the RPD record. 4 Idem, paragraph 2, page 4 of the RPD record. Immigration and Refugee Board of Canada (IRB), Chairperson's Guideline 4: Women Refugee Claimants Fearing Gender-Related Persecution, effective November 13, 1996. The Guideline is available on the IRB website: http://www.irb.gc.ca/Eng/BoaCom/references/pol/GuiDir/Pages/GuideDir04.aspx. 5 The written submissions by counsel for the appellant to the RPD are at pages 84 to 88 of the RPD record. 6 Idem, paragraphs 21, 22 and 23, page 7 of the RPD record. 7 Idem, paragraphs 31 and 32, page 9 of the RPD record. 8 Idem, paragraph 33, page 9 of the RPD record. 9 Idem, paragraph 35, page 10 of the RPD record. 10 Idem, paragraph 36, page 10 of the RPD record. 11 Idem, paragraphs 37 and 38, pages 10 and 11 of the RPD record. 12 Idem, paragraph 39, page 11 of the RPD record. 13 Idem, paragraph 40, page 11 of the RPD record. 14 Idem, paragraph 41, pages 11 and 12 of the RPD record. 15 Memorandum of the appellant, pages 12 to 26 of the appeal record. 16 Idem, pages 19 to 22 of the appeal record. 17 Idem, page 19 of the appeal record. The written submissions of counsel for the appellant to the RPD are also reproduced at pages 84 to 88 of the RPD record. 18 Idem, pages 22, 23 and 24 of the appeal record. 19 Idem, pages 24 and 25 of the appeal record. 20 Idem, page 25 of the appeal record. 21 Idem. 22 Idem, page 26 of the appeal record. 23 Idem, page 14 of the appeal record. 24 Idem, pages 15 to 18 of the appeal record. 25 Akuffo v. Canada (Minister of Citizenship and Immigration), No. IMM-6640-13, Gagné, November 12, 2014; 2014 FC 1063, at paragraphs 34 to 39. 26 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. Read also: Malambu v. Canada (Minister of Citizenship and Immigration), No. IMM-7972-14, Noël, June 17, 2015; 2015 FC 763, at paragraph 42. 27 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." 28 Balde v. Canada (Minister of Citizenship and Immigration), No. IMM-3724-14, Mosley, May 12, 2015; 2015 FC 625, at paragraph 25. Read also: Palden v. Canada (Minister of Citizenship and Immigration), No. IMM-4907-14, Locke, June 25, 2015; 2015 FC 787, at paragraphs 10 and 11. 29 Shahidi v. Canada (Minister of Citizenship and Immigration), No. IMM-518-15, Mactavish, October 21, 2015; 2015 FC 1191, at paragraph 17. 30 Dowansingh v. Canada (Minister of Citizenship and Immigration), No. IMM-6581-14, Diner, July 30, 2015; 2015 FC 933, at paragraph 21: "This Court has repeatedly held that RPD's conclusions on issues of credibility based on testimony clearly warrant some measure of deference." (citations omitted) 31 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, paragraphs 23 to 28, states the following: "... 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. 32 Nemeth v. Canada (Minister of Citizenship and Immigration), No. IMM-2522-02, O'Reilly, May 14, 2003; 2003 FCT 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." 33 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 Offshore Petroleum Board, [1994] 1 S.C.R. 202. 34 Hernandez v. Canada (Minister of Citizenship and Immigration), No. IMM-3517-09, Martineau, February 18, 2010; 2010 FC 179, at paragraphs 44 and 45. 35 Gordillo Munoz v. Canada (Minister of Citizenship and Immigration), No. IMM-3517-09, Scott, February 20, 2012; 2012 FC 227, at paragraphs 40 to 42. 36 Kalombo Kabongo v. Canada (Minister of Citizenship and Immigration), No. IMM-3517-09, Martineau, September 28, 2011; 2011 FC 1106, at paragraphs 33 to 36. 37 Idem. 38 Jaouadi v. Canada (Minister of Citizenship and Immigration), No. IMM-4797-02, Martineau, November 14, 2003; 2003 FC 1347, at paragraph 18 citing the Federal Court of Appeal in Arthur v. Canada (Attorney General), 2001 FCA 223, at paragraph 8. 39 Lostin v. Canada (Minister of Citizenship and Immigration), No. IMM-10067-12, de Montigny, October 28, 2013; 2013 FC 1098, at paragraph 26. 40 Committee for Justice and Liberty v. National Energy Board [1978] 1 S.C.R. 369, at page 394. 41 R. v. S. (R.D.) [1997] 3 S.C.R. 484, at page 524. 42 Recording of the hearing on November 25, 2014, before the RPD, 00:01 to 47:15. 43 Recording of the hearing on December 8, 2014, before the RPD, 00:01 to 46:34. 44 Recording of the hearing on January 19, 2015, before the RPD, 06:00 to 40:40. 45 Idem, 02:31:08 to 02:51:40. 46 Immigration and Refugee Board of Canada (IRB), Code of Conduct for Members of the IRB, December 15, 2012, 4 pages, paragraph 25. The document is available on the IRB website: http://www.irb-cisr.gc.ca/Eng/BoaCom/empl/Pages/MemComCode.aspx. 47 Paragraph 3(2)(e) of the IRPA. 48 Arreaga v. Canada (Minister of Citizenship and Immigration), No. IMM-996-13, Noël, September 25, 2013; 2013 FC 977, at paragraph 45. 49 Laszlo v. Canada (Minister of Citizenship and Immigration), No. IMM-3507-04, Von Finckenstein, April 6, 2005; 2005 FC 456, at paragraph 10. 50 Hernandez Cortes v. Canada (Minister of Citizenship and Immigration), No. IMM-4645-08, Teitelbaum, June 4, 2009; 2009 FC 583, at paragraph 30. 51 Orelien v. Canada (Minister of Employment and Immigration), [1992] 1 F.C. 592 (C.A.) at page 605: "... one cannot be satisfied that evidence is credible or trustworthy unless satisfied that it is probably so, not just possibly so." 52 Memorandum of the appellant, page 25 of the appeal record. 53 The contract in question is reproduced at pages 29 and 30 of the RPD record. 54 Mercado v. Canada (Minister of Citizenship and Immigration), No. IMM-4493-09, Gauthier, March 12, 2010; 2010 FC 289, at paragraph 32, referring to the following decisions: A.M. v. Canada (Minister of Citizenship and Immigration), 2005 FC 579, [2005] F.C.J. No. 709 (QL) at paragraph 20 and Nechifor v. Canada (Minister of Citizenship and Immigration), 2003 FC 1004, [2003] F.C.J. No. 1278 (QL) at paragraph 6. 55 Refugee Protection Division Rules, SOR/2012-256. 56 Villanueva Pinon v. Canada (Minister of Citizenship and Immigration), No. IMM-4906-09, Boivin, April 20, 2010; 2010 FC 413, at paragraph 16. 57 Idem, at paragraph 15. 58 IRB, National Documentation Package on Cambodia, July 31, 2014: Document 2.7: United Nations, General Assembly, Human Rights Council, Report of the Working Group on the Universal Periodic Review. Cambodia, A/HRC/26/16, March 27, 2014, 30 pages, paragraph 11, page 4. The index of that version of the package is reproduced at pages 89 to 99 of the RPD record. 59 Idem: Document 2.1: United States of America, Department of State, Cambodia 2013 Human Rights Report, February 27, 2014, not paginated, under the title Executive Summary. 60 The form in question signed by the appellant on August 27, 2014, is reproduced at pages 129 to 132 of the RPD record. 61 The visa application signed by the appellant on July 10, 2014, is reproduced at pages 107 to 111 of the RPD record. 62 BOC Form, question 2(d), page 24 of the RPD record. --------------- ------------------------------------------------------------ --------------- ------------------------------------------------------------ N° de dossier de la SAR / RAD File No.:MB3-03126 RAD.25.02 (2014.09.11) Disponible en français RAD File No. / No de dossier de la SAR : MB5-01418 2