maria luisa padilla gamez Applicant v. THE MINISTER OF CITIZENSHIP, 2010 FC 461

Federal Court Cour fédérale 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. , 1979 CanLII 4098 (FCA) , [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” Judge FEDERAL COURT

SOLICITORS OF RECORD DOCKET: IMM-4794-09 STYLE OF CAUSE: maria luisa padilla gamez v. the minister of citizenship and immigration PLACE OF HEARING: Toronto, Ontario DATE OF HEARING: April 27, 2010 REASONS FOR ORDER AND ORDER: CAMPBELL J. DATED: April 27, 2010 APPEARANCES : Peter Lulic FOR THE APPLICANT Veronica Cham FOR THE RESPONDENT SOLICITORS OF RECORD : Reliable Immigration Services Toronto , Ontario FOR THE APPLICANT Myles J. Kirvan Deputy Attorney General of Canada FOR THE RESPONDENT