Date: 20100427
Docket: IMM-4794-09
Citation: 2010
FC 461
Toronto, Ontario, April 27, 2010
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
maria luisa padilla gamez
Applicant
and
THE MINISTER OF
CITIZENSHIP
AND IMMIGRATION
Respondent
REASONS FOR ORDER AND ORDER
[1]
In the
present Application, the Applicant, who is a citizen of Honduras, contests the RPD’s finding
that she failed to prove her subjective fear of persecution should she be
required to return to Honduras. The Applicant’s claim for
protection is based on her fear that, should she be required to return to Honduras, she will be killed at the
hands of her extremely violent husband.
[2]
I accept
Counsel for the Applicant’s argument that the decision under review is
fundamentally flawed on the central issue of the Applicant’s credibility. At
paragraph 8 of the decision, the RPD sets out the issue for determination as
follows:
The determinative issue is credibility, specifically with respect to
subjective fear, and state protection. The panel has considered the application
of the Gender Guidelines.
However, the following statement is made
by the RPD at paragraph 12:
That is, assuming without deciding
that the claimant’s allegations of severe domestic abuse are true, Ms.
Padilla has not demonstrated that she is in need of refugee protection. This is
for two reasons: that she never sought assistance prior to leaving her own
country, and she delayed seeking protection or asylum for more than two years.
[Emphasis added]
[3]
The Applicant gave
evidence with respect to her subjective fear while in Honduras and after she fled; this evidence was apparently not
believed by the RPD because it was not accepted. The Federal Court of Appeal
has set stringent requirements for the making of credibility findings. In Maldonado
v. M.E.I., [1980] 2 F.C 302 (C.A.) at page 305 the point
is made that, when a refugee claimant swears to tell the truth about certain
features of her or his claim, a presumption is created that that evidence is
true unless there are reasons to doubt its truthfulness. With respect to such
reasons, the decision
in in Hilo v. Canada (M.E.I.) (1991), 15 Imm. L.R. (2d) 199 (F.C.A.) at
paragraph 6 sets the standard:
In my view, the board was under a duty
to give its reasons for casting doubt upon the appellant's credibility in clear
and unmistakable terms. The board's credibility assessment, quoted supra,
is defective because it is couched in vague and general terms.
[Emphasis added]
[4]
Indeed, in
the decision presently under review, no credibility finding is made in
accordance with the principles just outlined. As a result, I find that the
negative finding of subjective fear was made in reviewable error.
ORDER
Accordingly, I set aside the
decision under review and refer the matter back to a differently constituted
panel for re-determination.
There is no question to
certify.
“Douglas R. Campbell”
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