IMM IGRAT ION LAW300
In more recent cases, the bipart ite approach has become entrenched.
In a frequently cited case, Kam ana v Canada (Minister of Citize nship and
Immigration),7 it was stated that “[t]he lack of evidence going to the
subjective element of the claim is a fatal fl aw which in and of itself
warrants dismissal of the claim, since both elements of the refugee
definition — subjective and objective — must be met.”8 However, the
need for an inquiry into whether a clai mant has a subjective fear of
persecution is a matter of some controversy. It appears to disqualify
claimants who are either too immature or intellectual ly unable to ap-
preciate the risks to which they are subject, yet who are in extreme
need of protection because they face a risk of persecution in their coun-
try of origin.9 That Canadian courts’ adamant position that evidence
of a subjective fear is a threshold requirement on which the succes s of
a claim may depend is quite puz zling. It can perhaps be explained by
the fact that, in the va st majority of cases, the cla im is based on an al-
legation of subjective fear and the apprehension of danger, and when
this allegation is not made out, the decision maker sees reason to reject
the claim outright. In such c ases, the claim is being rejected ess ent ially
because the clai mant’s general credibility is found to be wanting. The
claimant’s statement of the reason for his departure is rejected in fa-
vour of an alternative explanation that may be based not on his oral
testimony but on his actions10 where, for example, he failed to offer a
good reason for delaying in fleeing from the alleged danger or failed to
explain why he did not seek help from sources closer or more readily
available.11 Where, of course, a cla imant can provide an explanation for
determini ng whether well-founded fea r exists, bot h elements must be ta ken
into consider ation.
7  FCJ No 1695 (TD).
8 Ibid at para 10.
9 See James C Hathaway & W illiam S Hicks, “Is There a Subject ive Element in
the Refugee Convent ion’s R equirement of ‘Well-Founded Fear’?” (2005) 26
Michigan Journal of Intern ational Law 505.
10 See, for ex ample, Subramaniyathas v Canada (Minister of Citize nship and Immi-
gration), 2014 FC 583, where the court held that t he Refugee Protection Divi sion
cannot be spec ulative when making plau sibility findings rel ated to the credibil-
ity of the clai mant’s story.
11 See, for ex ample, Huerta v Canada (Minister of Employ ment and Immigration),
 FCJ No 271 (CA): The court focused on t he claimant’s conduct before she
left, specific ally that the claim ant continued to work, taking step s to contest her
dismis sal and get her position reinst ated, that she continued to attend cl asses,
and that when she ar rived in Canada as a tou rist, there was a delay in m aking
a refugee clai m; see also Ilie v Canada (Minister of Citizenship an d Immigration)
(1994), 8 8 FTR 220 (TD), whe re the claimant provided e xplanations as to why
he did not claim ref ugee protection in countries he t ravelled through before