December 31, 2020
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A finding of “No credible basis”
“Manifestly unfounded” claims
General principles and observations
The process of determining whether a claimant is a Convention refugee or a “person in need of protection” under the
Immigration and Refugee Protection Act (IRPA)Footnote 1 is one that requires members of the Refugee Protection Division (RPD) to decide whether they believe the claimant's evidence and how much weight to give to that evidence.Footnote 2 In determining this, members must assess the credibility of the claimant, other witnesses and the documentary evidence.
The RPD's decision to allow or reject a person's claim for refugee protection may be appealed to the Refugee Appeal Division (RAD) by the Minister or the claimant, unless one of the exceptions to this right applies.Footnote 3 The RAD assesses whether the RPD decision, including credibility findings, is wrong in law, in fact or in mixed law and fact.Footnote 4 The enabling provisions for RAD appeals only came into force on December 15, 2012.
It is important to bear in mind that a negative credibility finding which may be determinative of a refugee claim under s. 96 of the IRPA is not necessarily determinative of a claim under s. 97(1) of the IRPA.Footnote 5 Whether the Board has properly considered a claim under both s. 96 and s. 97(1) is determined in the circumstances of each individual case, bearing in mind the different elements that must be credibly established for each ground.
When reading older case law, keep in mind that under the former
Immigration Act,Footnote 6 the determination of whether a person was a Convention refugee was made by members of the Convention Refugee Determination Division (CRDD), often referred to as the Refugee Division (RD). The CRDD was replaced by the Refugee Protection Division (RPD). The CRDD panel of two members was assisted by a Refugee Hearing Officer (RHO), later known as a Refugee Claim Officer (RCO) or Refugee Protection Officer (RPO) but this role was eliminated. All references to “the Court” mean the Federal Court of Canada, unless stated otherwise. The paper includes the relevant jurisprudence up to December 31, 2020.
1. General principles and observations
1.1 Credible or trustworthy evidence
The assessment of credibility is guided by legislative provisions and principles found in the jurisprudence. The IRPA states in s. 170:
170. The Refugee Protection Division, in any proceeding before it,
g) is not bound by any legal or technical rules of evidence;
h) may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances.
Corresponding provisions for the Refugee Appeal Division (RAD) are s. 171 (a.2) and (a.3).
It would be an error for the RPD or the RAD to reject evidence simply because it is hearsay; although the weight that is given to hearsay evidence may be discounted or even given no weight if there are reasons to consider it unreliable.Footnote 7
Members may draw reasonable inferences of fact from the evidence. Inferences are deductions made from the evidence.Footnote 8 Reasonable inferences have the validity of legal proof, as can be read in a frequently-cited passage from
Jones v. Great Western Railway Co., where Lord Macmillan explained the difference between conjecture and inference:
The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. …Footnote 9
A finding of a lack of credibility based on inferences must be supported by evidence on record.Footnote 10 It is not open for Board members to base their decisions on assumptions and speculations for which there is no real evidentiary basis. For example, in
Cao,Footnote 11 the Board erred when it found that it was “reasonable to assume” that there would be documentation concerning the claimant's alleged required sterilization. However, it made no reference to any documentary evidence that would establish a foundation for this assumption.
Another case where the Court found that the RPD made an unwarranted assumption is
Mohammed.Footnote 12 The RPD considered the claimant's oral testimony concerning the date he went into hiding was inconsistent with his BOC, not because of what was actually written in the BOC, but based on the RPD's assumption that events in the BOC were set out in chronological order. Justice Zinn found it unreasonable for the RPD to conclude that there was a contradiction on the basis of an inferred date: “Inferences are not evidence. This Court has observed that discrepancies relied on by the RPD in making credibility determinations must be real and not speculative.”
Deductions based on the evidence must be distinguished from conjecture or speculation. In
Jung,Footnote 13 the Court considered that the Board erred by engaging in “pure speculation” about why it was not credible that someone who was underweight and sick would be excused from military service in North Korea. The Board had reasoned that in light of the high number of North Koreans with stunted growth, the military could not afford to exclude persons from mandatory military service on that basis.
Mahalingam, where the CRDD used the words “we feel” in its finding that the applicant's fear that the police would again humiliate and harass her was highly speculative, Justice Gibson held:
In the absence of some evidence, cited by the CRDD and weighed against the evidence to the contrary to support its "feeling", I conclude that the CRDD here resorted to a speculative and conjectural conclusion which was clearly central to its decision. In so doing, it committed a reviewable error.Footnote 14
The starting point for assessing credibility comes from
Maldonado, where theFederal Court of Appeal stated that when a claimant swears that certain facts are true, this creates a presumption that they are true unless there is valid reason to doubt their truthfulness.Footnote 15 The strength of the presumption varies according to the circumstances of each individual case.Footnote 16 In
Hernandez, Justice Denault specified that the presumption of truthfulness that applies to facts alleged by refugee claimants does not apply to deductions they make based on those facts.Footnote 17 Along the same lines, Justice McHaffie wrote: “However, the
Maldonado presumption is simply that a sworn witness is telling the truth. It is not a presumption that everything the witness believes to be true, but has no direct knowledge of, is actually true.”Footnote 18
An important indicator of credibility is the consistency with which a witness has told a particular story.Footnote 19 In assessing credibility, the Board may consider matters such as inconsistencies, contradictions and omissions from the evidence, specialized knowledge, inferences, implausibilities, documentary evidence and the claimant's demeanour at the hearing.
Findings of fact, and consequently, the determination as to whether a claimant's evidence is credible, are made on a balance of probabilities.Footnote 20
1.2 Relevance of country conditions evidence
As affirmed by the Federal Court in
Odetoyinbo,Footnote 21 tribunals must assess the claimant's alleged fear of persecution or individualized risk in light of “what is generally known about conditions and the laws in the claimant's country of origin, as well as the experiences of similarly situated persons in that country.” In other words, the Board must consider corroboration by objective documentary evidence of country conditions or the treatment of certain groups in the country that could reasonably be expected to give rise to a well-founded fear of persecution or to a risk under s. 97 (1) when assessing the credibility of a claimant being at risk of persecution or other harm.Footnote 22
Even where some of a claimant's allegations, for example regarding past experiences of persecution may lack credibility, country conditions may nonetheless indicate a prospective risk for the claimant as a member of a particular social groupFootnote 23 or, in the absence of a nexus to the Convention grounds, as a person among other similarly situated persons.
Although evidence of country conditions is a relevant consideration, in
Oduro, Justice McKeown cautioned that for cases from the same country, “[t]here can be no consistency on findings of credibility.”Footnote 24 In other words, the credibility of each claimant must be assessed individually. Justice Simpson echoed the comments made by her colleague, adding that “credibility cannot be prejudged. It is an issue to be determined by the Board members in each case based on the circumstances of the individual claimant and the evidence.”Footnote 25
1.3 Benefit of the doubt
Handbook on Procedures and Criteria for Determining Refugee StatusFootnote 26 provides the following guidance:
196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. … Even such independent research may not, however, always be successful and there may be statements that are not susceptible of proof. In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.
This principle was discussed in the Supreme Court of Canada decision of
Chan.Footnote 27 The majority found that, where the claimant's allegations run contrary to the available evidence and generally known facts, it is not appropriate to apply the benefit of the doubt in order to establish the claim. In reaching this conclusion, the majority stated:
My colleague, La Forest J. argues that no conclusions can be drawn from individual items of evidence and that on each item the appellant should be given the benefit of the doubt, often by considering hypotheticals which could support the appellant's claim. This approach handicaps a refugee determination Board from performing its task of drawing reasonable conclusions on the basis of the evidence which is presented. This approach is also fundamentally incompatible with the concept of “benefit of the doubt” as it is expounded in the UNHCR Handbook:
204. The benefit of the doubt should, however,
only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and
must not run counter to generally known facts. [emphasis in the original]
Major J., speaking for the majority went on to discuss the evidence, contrasting the appellant’s testimony with the documentary evidence (at paragraph 145):
Since the appellant’s claim that he would be physically coerced into sterilization runs contrary to the available evidence and generally known facts it is not an appropriate instance in which to apply the benefit of the doubt in order to establish the appellant’s case.
However, the dissenting justices found, at paragraph 56, that the appellant’s account did not run contrary to the available evidence and generally known facts; consequently, in their view, it was appropriate to apply the benefit of the doubt:
The appellant’s account of events so closely mirrors the known facts concerning the implementation of China’s population policy that, given the absence of any negative finding as to the credibility of the appellant or of his evidence, I think it clear that his quite plausible account is entitled to the benefit of any doubt that may exist. With respect, I see no merit in the approach taken by some members of the court and by my colleague Major J. to seize upon sections of the appellant’s testimony in isolation. Indeed, I find such a technique antithetical to the guidelines of the UNHCR Handbook (see paragraph 201).
The benefit of the doubt does not apply to situations where, as in
Hidalgo CarranzaFootnote 28 the Board reasonably finds a claimant's story improbable.
1.4 Notice to the claimant
The Federal Court has stated that credibility is always an issue in refugee hearings and that no special notice needs to be provided to the claimant.Footnote 29 The Board can, however, identify credibility as an issue at any point during the course of the hearing. The RPD must do so in clear terms and provide the claimant with an opportunity to address the issue.Footnote 30
Natural justice requires that claimants understand the case they have to meet, so if a decision-maker leads a claimant to believe that a certain issue such as credibility is not an issue, it is a denial of natural justice to subsequently reject the claim based primarily on that issue. This is what happened in
Velauthar,Footnote 31 where the CRDD indicated that the only issue was whether the harm the claimants feared qualified as persecution on a Convention ground. It invited and received submissions on that issue, but then decided the claim on the basis of credibility. The Court of Appeal found “a gross denial of natural justice “and noted that “the Appellants were denied the opportunity to know and answer the case against them by a deliberate decision of the presiding member in which his colleague acquiesced.”
The circumstances in
ButtFootnote 32 serve as a warning against relying on the fact credibility is always an issue in any refugee claim. In this case, the CRDD identified credibility as an issue at the outset of a hearing but according to counsel, when she asked the panel to provide a list of outstanding issues to cover in her written submissions, credibility was not listed as an issue. When she provided her submissions, counsel clearly indicated her understanding that credibility was not an issue. She received no response until some three months later when the decision of the panel was rendered, and credibility was the issue on which the Board's decision turned. Justice MacKay held that the circumstances were clearly comparable to those in
10. In my opinion, the failure of the panel to indicate that credibility was an issue when, at the request of counsel, it listed issues on which submissions should be made, resulted in a denial of natural justice when by its decision the panel determined that the applicants' evidence was not credible. In the circumstances the applicants were denied an opportunity to address the matter of principal concern to the panel in its decision.
PereraFootnote 33 is another casethat the Court found comparable to
Velauthar although the Board did not explicitly specify which issues should be addressed in the submissions by counsel. However, the Board erred by giving the claimant a false impression during the hearing that his oral testimony had been accepted and then later impeaching his credibility on the basis of that testimony.
Sivamoorthy Justice Russell found both
Velauthar directly applicable. He held that the effect of the Board's comments was misleading: “The Applicant was denied natural justice by the Board misleading the Applicant into believing that the issue of identity was resolved and then refusing the claim based primarily on that issue.”Footnote 34
Okwagbe, Justice Zinn succinctly expressed the principle to be derived from the case law: “When the claimant has not made submissions on an issue, including credibility, because the tribunal
directly or indirectly indicates that no such submissions are required, then the claimant is denied natural justice if the Board makes its ruling based on that issue.”Footnote 35 [emphasis added]
Zhang,Footnote 36 Justice Kane found that the RAD failed to consider the jurisprudence which establishes that where the RPD indicates that an issue does not need to be addressed, it is a breach of procedural fairness for the RPD to rely on that issue as a basis for its decision. The RAD erred by not considering, in the circumstances of this case, whether the RPD gave the impression that only particular issues would need to be addressed and, by implication, that other issues would not need to be addressed.
Regarding the requirement for the RAD to give notice of credibility issues, members must provide the parties notice and an opportunity to respond to credibility issues that were not raised before the RPD or in the appeal record.Footnote 37 A failure to provide notice runs the risk of breaching the principles of procedural fairness. Where however, the credibility issues raised and considered by the RAD are linked to the parties’ submissions or to the RPD’s findings, the RAD is entitled to independently assess the evidence and make new credibility findings.Footnote 38
1.5 Witnesses and examination of documents
A claimant must be provided a reasonable opportunity to present evidence and question witnesses.Footnote 39 When the Board rejects a claim because it doubts that certain allegations going to the heart of the claim were proven, the claimant must be given an opportunity to present evidence about those allegations.Footnote 40
If a party wants to call a witness, the party must provide witness information as set out in Rule 44(1) of the RPD Rules in writing to the other party and to the Division. If a party does not provide the witness information, the witness must not testify at the hearing unless the Division allows them to testify.Footnote 41 The Board has discretion in deciding whether to allow a witness to testify when the request is late and not made in accordance with Rule 44.Footnote 42
All four Divisions have a provision in their rules for requesting a summons if a party wants the Division to order a person to testify at a hearing. There is however, no duty on the Board to call witnesses on behalf of a party or to issue a summons upon request. In
Zaloshnja, Justice Tremblay-Lamer disagreed that the Board had improperly exercised its discretion by refusing to require the immigration officer at the POE to be summoned for the purpose of cross-examination:
There was no duty on the Refugee Division to call the immigration officer. If the applicant believed that cross-examining the officer would assist her claim, it was up to her to call him as a witness. Rule 25(1) of the
CRDD Rules [now 45(1) of the RPD Rules] specifically direct [sic] claimants to make an application in writing if they wish to summon a witness. The burden of proof is on claimants to substantiate their claims and to call whatever evidence and witnesses they require.Footnote 43
The right to call further evidence is not absolute.Footnote 44 Although it may be preferable to hear the evidence in some cases, the Board does not err when it refuses to hear a witness who could
not have clarified concerns about critical aspects of the claimant's story (for example, the failure to provide certain information in the PIF, POE notes or the claimant's identity) or would have testified about matters not in issue.Footnote 45 Moreover, the Board has no duty to inform a claimant that it finds the claimant's witness' evidence to be non-persuasive.Footnote 46
The RPD should accommodate reasonable requests by the claimant to allow their own experts to examine documents whose authenticity is impugned by Canadian officials.Footnote 47
1.6 Interlocutory decisions on credibility
The claimant bears the burden to establish his claim by credible evidence. Although the Board should give claimants an opportunity to clarify any apparent contradictions or inconsistencies in their testimony upon which the Board intends to rely, there is no obligation on the Board to signal its conclusions on the general credibility of the evidence, sufficiency of the evidence or the plausibility of the story in advance of its final decision on the claim.Footnote 48 The Federal Court has noted such a procedure is not recommended or acceptable.Footnote 49
1.7 Proper evidentiary basis for findings on credibility
An adverse finding of credibility must have a proper foundation in the evidence. The Board errs if it misapprehends,Footnote 50 misconstrues or fails to account for the evidence before itFootnote 51 or if the Board bases its conclusions on speculation,Footnote 52 conjecture,Footnote 53 or on circular reasoning.Footnote 54
If a finding of fact which was material to a finding of lack of credibility was made without regard to the evidence, the RPD's decision will generally be overturned.Footnote 55 The Board must take care to respect the claimant's testimony; it cannot distort that testimony and then find it lacking in credibility.Footnote 56
The Federal Court will not interfere with a decision if the evidence before the Board, taken as a whole would support its negative assessment of credibility, if its findings were reasonable in light of the evidence, and if reasonable inferences were drawn from that evidence.Footnote 57
When the Board's impugned finding relates to the credibility of a witness, the Court will be reluctant to interfere with that finding, given the tribunal's opportunity and ability to assess the witness' demeanour, frankness, readiness to answer, coherence and consistency, in oral testimony before it.Footnote 58 With regard to the RAD, which generally does not hold oral hearings, a RAD decision cited in
PayeFootnote 59 explains thatthe RAD is not in the same position as the RPD to assess demeanour. The Court found that while it was appropriate in
Paye for the RAD to give deference to the RPD's findings, deference is not automatic in all cases where the appellant's credibility is in doubt. For implausibility findings, for example, the RPD in most cases has no real advantage over the RAD.
1.8 Assessing a witness’s testimony
A decision-maker customarily considers the integrity, age, education and intelligence of a witness and the overall accuracy of the statements being made. The witness' powers of observation and capacity for remembering are important factors. An assessment is customarily made of whether the witness is honestly endeavouring to tell the truth, that is, whether the witness appears frank and sincere or biased, reticent and evasive. The Court has cautioned that a refugee claim is not a memory test.Footnote 60
Magonza,Footnote 61 Justice Grammond writes that there are two components to the credibility of a witness' testimony: honesty and accuracy. The factors frequently used to assess credibility may pertain either to one or the other, but more commonly to both. Those factors include:
- Ability of the witness to observe the facts;
- Ability of the witness to remember the facts;
- Internal consistency of the testimony and consistency with previous declarations;
- Corroboration, that is, consistency with other witnesses' testimony or with written evidence which is itself considered credible;
- Plausibility, that is, conformity of the testimony with common experience;
- Bias, interest and motivation to be untruthful;
- Demeanour of the witness at the hearing.
The fact that a witness has an interest in the outcome of the proceedings is just one of the factors to take into account when assessing the credibility of a witness's testimony. Regard should be given to
all relevant factors in assessing credibility.Footnote 62 The Board cannot disbelieve testimony solely because a witness is interested, on the grounds that the evidence is self-serving.Footnote 63 Courts have repeatedly criticized the outright rejection of the credibility of evidence provided by a family member or persons otherwise closely associated with the claimant. Such persons may be the best-positioned to provide first-hand evidence relating to the claim.Footnote 64
1.9 Clear findings on credibility
The Federal Court has commented frequently that if the Board rejects a claim essentially because of a lack of credibility, clear reasons must be given. Those aspects of the testimony which are found not to be credible must be clearly identified and the reasons for such conclusions must be clearly articulated.Footnote 65
When the Board makes no clear adverse finding as to a claimant's credibility, his or her testimony is deemed to constitute the Board's findings of fact.Footnote 66
1.10 Adequacy of reasons
The Board is required to justify credibility findings with reasons that are transparent, intelligible, internally coherent, grounded in the evidence and based on a logical chain of analysis.Footnote 67
VIA Rail, the Federal Court of Appeal provided a practical description of what constitute adequate reasons:
The obligation to provide adequate reasons is not satisfied by merely reciting the submissions and evidence of the parties and stating a conclusion. Rather, the decision maker must set out its findings of fact and the principal evidence upon which those findings were based. The reasons must address the major points in issue. The reasoning process followed by the decision maker must be set out and must reflect consideration of the main relevant factors.Footnote 68
If a decision turns on credibility, the tribunal must provide reasons for its assessment given the importance of the issues at stake in a refugee claim.Footnote 69
Reasons do not have to be lengthy, but they do need to be comprehensible. Reasons must explain to the parties and to the Court why the decision was reached.Footnote 70
The Board owes a duty to the claimant to give its reasons for rejecting the claim on the basis of credibility in “clear and unmistakable terms.”Footnote 71 That usually includes the obligation to provide explanations or examples. It is not enough just to say that the evidence is not believed, since this creates an appearance of arbitrariness.Footnote 72
Failing to indicate what part of the evidence is accepted and what part is rejected makes it impossible to know the basis for the Board's decision.Footnote 73 The Board is required to make clear findings as to what evidence is believed or disbelieved and set out the principal evidence upon which those findings were based.Footnote 74 If the RPD believes only some of the claimant's story, it is obliged to say how much was accepted and how much rejected.Footnote 75 Moreover, when rejecting parts of a claim for lack of credibility, the Board must explain the impact of those findings.Footnote 76
The assessment of a claim must take into account all the evidence. In other words, The Board must consider any evidence found to be credible, including documentary evidence. In
Joseph, Justice O'Reilly held “ Even if the Board finds some evidence not to be credible, it must go on to consider whether there remains a residuum of reliable evidence to support a well-founded fear of persecution.”Footnote 77
Justice Dawson in
Manickan stated “The jurisprudence of the Federal Court of Appeal establishes that a finding of incredibility does not prevent a person from being a refugee if other evidence establishes both the subjective and objective branches of the test for refugee status.”Footnote 78 In that case, although the RPD did not believe Mr. Manickan's allegations about having suffered past persecution, it did believe the evidence of his age, nationality, ethnicity and place of usual residence which linked him to the documentary evidence. The judicial review was allowed because by failing to assess the documentary evidence that dealt with the risk to which a Tamil male such as Mr. Manickan might be subject, the RPD reached its decision without regard to all of the evidence before it.
The Board cannot ignore evidence that is contrary to its conclusion impeaching credibility.Footnote 79 Important pieces of evidence that are contrary to the Board's conclusion should be assessed in the decision. In
Ortiz, for example, the Court held that in the face of evidence that corroborates essentially all of the main allegations in the claim, the RPD was required to make reference to it and to include it in its analysis.Footnote 80
The grounds for rejecting or disbelieving evidence must be stated clearly with specific and clear reference to the evidence. This generally includes an obligation to provide examples of the basis for not accepting the claimant's testimony (such as contradictions, inconsistencies, implausibilities), and to explain how and why they impacted the claimant's credibility. The panel is not required to list each and every inconsistency so long as specific examples are given.Footnote 81 However, the Board's analysis should respond to the claimant's central arguments that are contrary to the Board's conclusion. Where a claimant provides explanations for inconsistencies in the evidence, the Board is required to explain why it rejects the explanations provided.Footnote 82
Ambiguous statements that do not amount to an outright rejection of the claimant's evidence, but only “cast a nebulous cloud over its reliability,” are not sufficient to discount the evidence.Footnote 83 The Federal Court has commented that reasons supporting a negative credibility finding are not adequate where the reasons are based on faulty or circular logic,Footnote 84 peripheral issues,Footnote 85 a microscopic analysis of the evidenceFootnote 86 or speculation.Footnote 87 As noted by the Court of Appeal in
Hilo, where the Board casts doubt on the appellant's credibility but one paragraph later, found his evidence credible enough to rely on it as the basis for dismissing one component of his claim to refugee status, the Board should be consistent in the treatment of various aspects of the claimant's testimony. For example, the panel should not use evidence which was disbelieved as a premise (factual basis) to undermine other aspects of the claimant's testimony.Footnote 88
1.11 Considerations on appeal and judicial review
Generally, the RAD reviews RPD decisions by applying the correctness standard; the RAD carries out its own analysis of the record, as framed by the arguments on appeal, to determine whether the RPD erred.Footnote 89 If there is an error, the RAD can still confirm the decision of the RPD on another basis. The RAD can also set the decision aside, substituting its own determination of the claim, unless it is satisfied that it can neither confirm nor substitute without hearing the evidence that was presented to the RPD.Footnote 90
The RAD may however defer to credibility findings made by the RPD where the RPD enjoyed a meaningful advantage.Footnote 91
Findings of credibility by the Board are given considerable deference by the reviewing court.Footnote 92 The Court recognizes that Board members who have the benefit of observing witnesses directly are in the best position to determine credibility.Footnote 93 It is not the role of the Federal Court, on judicial review, to substitute its decision for that of the Board even if the Court might not have reached the same conclusion.Footnote 94
2. Specific concerns
A review of the Federal Court’s case law shows that members face some significant difficulties in assessing the credibility of claimants or other witnesses.
2.1 Considering all the evidence
2.1.1 Considering the evidence in its entirety
The Federal Court has clearly established in numerous decisions that, in assessing the credibility of a claimant, it is important to remember that
all, not just some, of the relevant evidence, oral and documentary, must be taken into consideration and assessed.Footnote 95
The same is true with respect to determining the grounds of persecution or the relevant provisions of the IRPA, for which the RPD must take into account all of the available evidence in support of a claim, even if some grounds are not clearly identified by the claimant and even if another aspect of the claim was found not to be credible.
Duversin,Footnote 96 the Federal Court of Appeal noted that, according to the Supreme Court in
Ward, “it is not the duty of a claimant to identify the reasons for the persecution. It is for the examiner to decide whether the Convention definition is met”. The claimants stated in their BOC forms that they feared being kidnapped, raped and killed by political adversaries and filed reliable documentary evidence showing that Haitian women regularly face sexual violence. The Court was of the view that the RPD had failed to conduct a full analysis to determine whether the risk of kidnapping and rape constituted a serious risk of gender-related persecution. This analysis, conducted under section 96 of the IRPA, should have been separate from the analysis which led the RPD to reject, for lack of credibility, the refugee protection claim based on section 97 of the IRPA.
BainsFootnote 97 the Court clearly indicated that a complete analysis of the evidence should include an analysis of the situation in the claimant's country of origin as well as the lived realities of the people who are in a similar situation in the same country.
Assessing all the relevant evidence means that this evidence must be considered
together, not assessing some pieces of evidence in isolation from the rest. The evidence must therefore be dealt with in a coherent manner.Footnote 98
The Federal Court has insisted on the importance of not focusing solely on exaggerations or of not disregarding evidence that is unfavourable to the claimant. This means that the panel must do more than simply search through the evidence looking for contradictions or elements that lack credibility to “build a case” against the claimant's credibility and ignore other aspects of the claim.Footnote 99
The Court has also emphasized the importance of avoiding “circular reasoning” in assessing credibility, for example, by disregarding documentary evidence in support of the claim solely on the basis of a finding that the testimony lacks credibility, without otherwise taking that evidence into account in the analysis, especially when the documents are independent or reliable.
For example, in
George,Footnote 100 the Court remarked that the “RPD gave the remainder of the supporting document no probative value ‘given the claimant's overall lack of credibility,' with no other discussion of them other than to identify them in a list” and that, in doing so, the RPD engaged in the sort of reasoning found unreasonable in
Momanyi: making a credibility finding without full consideration of the evidence and then dismissing the evidence on the basis of that previous finding. Further, the RPD gave no indication why Mr. George's credibility tainted the credibility of the other witnesses, including his family, friends, and even third parties with no interest in the outcome (notably the owner and an employee of the daycare who described the attempted kidnapping of Mr. George's daughter). [emphasis added]
It is well established in law that the Board is not required to refer to every piece of evidence and every argument put forward.Footnote 101 However, not referring to evidence that is related to a crucial point or that contradicts the Board's findings on such a point, may constitute a reviewable error.Footnote 102
Generally speaking, it is only necessary to explicitly refer to evidence that is directly related to the issue being considered. It is especially important to specifically refer to and take into consideration the evidence that, on its face, contradicts or seems to contradict the finding made.Footnote 103
This means the Board must not refer to certain evidence that supports its conclusions, without referring to evidence that does not. For example, in
Haramicheal, the Court states the following:
While it does not have to mention or analyze all the evidence,
it is reasonable to expect the RAD to examine the one piece of evidence corroborating the applicant's story. The record contains a receipt for bail to the amount of 2000 birrs, issued on January 13, 2015, a date which would be consistent with her return to Ethiopia. I am concerned that both the RPD and the RAD are silent on corroborative evidence of her detention. While on its own, and in light of the other credibility issues, this document may not be sufficient to overcome the credibility findings, it nevertheless should have been examined. As I stated in
Teklewariat the absence of any mention of a key piece of evidence is suspicious. The Court cannot speculate on whether or not this evidence would have influenced the RAD's credibility findings.Footnote 104 [emphasis added; citation omitted.]
Calderon, the Court points out that the claimant's explanations are part of the evidence:
It is trite law that the RPD cannot make an adverse credibility finding while ignoring evidence by a claimant explaining apparent inconsistencies in their application . . . . Where such a situation arises, this Court will be inclined to infer that the RPD made an erroneous finding of fact…; however, it is important to note that the onus falls on an applicant to show that such evidence was ignored.Footnote 105 [citations omitted]
With respect to documentary evidence, depending on its nature and probative value, the Federal Court may sometimes decide, in cases where the panel finds the refugee protection claim not to be credible, including specific facts stated in certain personal documents, that the panel did not err in not explaining why it did not rely on documents that purport to substantiate allegations found not to be credible.Footnote 106
It can be presumed that the panel took into account all of the relevant evidence, regardless of whether or not it refers to it in its reasons, unless there is evidence to the contrary,Footnote 107 for example, where it is clear from the decision that an essential element of the refugee protection claim was not dealt with, at least implicitly.
In the absence of clear evidence establishing that the RPD did not take relevant and important evidence into account, the credibility finding must be upheld. As the Court states in
Moreover, the fact that a piece of evidence is not expressly dealt with in a decision does not render it unreasonable when there are sufficient grounds to assess the tribunal's reasoning . . . . The RPD is presumed to have weighed and examined all the evidence submitted to it, unless it is demonstrated not to have done so . . . . It is only when a tribunal is silent on evidence clearly pointing to the opposite conclusion that the Court can intervene and infer that the tribunal overlooked the contradictory evidence when making its finding of fact . . . .Footnote 108 [citations omitted.]
Thus, even if the panel does not refer to all the evidence in its reasons for decision, this should not result in a finding that the panel did not take some of the evidence into account if a review of the reasons shows that the panel did indeed consider all of the evidence.
Should the panel conclude that there is no credible basis for the claim, it is preferable to specifically analyze each piece of evidence on the record to determine whether there is any credible and reliable evidence on which a favourable decision could be based. However, in some cases, such as
Moise,Footnote 109 the finding of no credible basis was upheld by the Court as reasonable even though some pieces of evidence were not specifically analyzed.
In sum, the Board is generally not required to refer to each piece of evidence in its reasons for decision and to analyze them. However, the more relevant the evidence, the more likely the higher courts will conclude that an error was made if that evidence is not mentioned in the analysis.Footnote 110 Even though there is a presumption that the panel weighed each piece of evidence, there is still an obligation to refer to important evidence justifying the panel's decision.
2.1.2 Assessing the evidence found to be credible
Even if there are inconsistencies and exaggerations, the panel must assess the evidence that is credible and decide the claim based on all of that evidence.Footnote 111 For example, in
Lappen,Footnote 112 Justice Mandamin was of the view that the Board erred when it ended its analysis after finding the claimant not to be credible. Instead, it should have considered the claimant's profile in conjunction with the country condition evidence. He states the following at paragraph 27:
This Court has held previously that there may be instances where a refugee claimant, whose identity is not disputed, is
found to be not credible with respect to his subjective fear of persecution, but the “country conditions are such that the claimant's particular circumstances make him/her a person in need of protection. [emphasis added; citations omitted.]
In other words, rejecting all or part of the testimony considered not to be credible does not necessarily result in the rejection of the refugee claim. The claim must still be assessed on the basis of evidence considered trustworthy, including documents related to the claimant's situation and evidence related to people in similar circumstances.Footnote 113
In a decision that dealt with an unusual situation where a claimant chose not to testify, the Court ruled that the claimant's failure to testify does not enable the RPD to reject the claim without first assessing the other evidence.Footnote 114
2.1.3 General finding of lack of credibility
It may be concluded that the claimant's testimony as a whole is not credible. For example, in
Kinfe,Footnote 115 the Court found that the discrepancies in the claimant's testimony went to the heart of his identity and nationality and were sufficient to undermine his overall credibility.
However, even a finding of an overall lack of credibility is not sufficient to reject a refugee protection claim if “there is independent and credible documentary evidence in the record capable of supporting a positive disposition of the claim.”Footnote 116
In some cases, the claimant's contradictory evidence may undermine his or her entire oral testimony.Footnote 117 This is not always the case, especially when the panel's finding of a lack of credibility is not clearly connected to the determinative issues (see sections
2.2.1 Relevance, 2.2.2 Materiality and 2.2.3 Contradictions, inconsistencies, omissions).
Lubana the Court warns that not every kind of inconsistency or implausibility justifies a negative finding on overall credibility. The Board must not draw its conclusions after a “microscopic” examination of issues irrelevant or peripheral to the claimant's claim.
In particular, where a claimant travels on false documents, destroys travel documents or lies about them upon arrival following an agent's instructions, it has been held to be peripheral
and of very limited value to a determination of general credibility . . . .Footnote 118 [emphasis added; citations omitted.]
When it is impossible to find that a claimant completely lacks credibility, the remaining credible or trustworthy evidence must be examined to determine whether it can be used as a basis for a positive determinationFootnote 119 (see section 2.1.2. Assessing evidence found to be credible).
2.1.4 Joined and related claims
Where a claim has been
joined to another claim, a finding of a lack of credibility in respect of one claimant's evidence and testimony could have a negative impact on another claimant where the claims are linked to the same event or when one claim is dependent on the other. For example, in
Botello,the member rejected the claims of all five family members, namely, the father, the mother and their three minor children. The member found the principal refugee claimant, the father, not to be a credible witness. The children did not make independent claims. Each child's Personal Information Form (PIF) simply referred to their father's PIF: “See narrative in my father's PIF”. The children did not attend the hearing, and their mother, designated to protect their interests, made no specific comments about them. The Court found that the member made no error in how the children's claims were dealt with:
The circumstances here are quite different from those set out by Kelen J. in his reasons in
Gonsalves v. Canada (MCI),
2008 FC 844 at paragraphs 27 to 29, a case relied upon the Applicants' counsel. In that decision, Kelen J. was careful to state that
there wasextensive evidence as to the ill-treatment and harm experienced by the children including a threat of sexual assault.Footnote 120 [emphasis added]
When claims are joined, the evidence produced by the claimants applies to all of them. In
Akanniolu, the refugee protection claims of three members of the same family from Nigeria were based on threats resulting from the principal claimant's work in an organization that promotes the protection of women and girls from sexual exploitation. The RPD was of the opinion that the documents filed in support of the claimants' claims (stating that they were victims of persecution and faced threats because of the principal claimant's work) lacked credibility. In their appeal to the RAD, the claimants stated that they should not be affected by the RPD's and RAD's findings about the evidence submitted by the principal claimant. The claimants argued that this evidence could be considered extrinsic with respect to the male claimant and the minor claimant and that they should have been given the opportunity to respond to the RPD's concerns regarding the evidence in question. The Court addressed that argument as follows:
I completely disagree. This argument is based on a misunderstanding of extrinsic evidence. This argument also ignores that the Male Applicant and the Minor Applicant rely on the same narrative and the same evidence of the Principal Applicant; their claims are joined. Moreover, the
Male Applicant submitted an affidavit recounting the same alleged home invasion. The evidence submitted by the Applicants applies to all of them. It is not extrinsic evidence. The Applicants are expected to know the content of their own evidence and are not entitled to have the decision-maker point out concerns and provide an opportunity for the applicants to respond.Footnote 121 [emphasis added]
When joined refugee protection claims rely on the same facts, the finding that one claimant is credible normally has an impact on the other claimant.Footnote 122
However, if one of the claimants puts forward his or her own allegations of persecution or if joined claims have distinctive elements, they must be analyzed separately. See, for example,
God, in which the Court states the following:
. . . [B]oth the RPD and the RAD failed to acknowledge that there were two
independent claims. The RAD and RPD failed to separately consider the evidence of Mrs. Houssein, presumed to be credible in the absence of an express finding to the contrary. . . . In the present case, Mrs. Houssein made a separate claim. While her narrative may be similar in many respects to her husband's, it is not identical. Several of the events to which she testified she experienced personally. As submitted by the Applicants, if Mr. God were making the claim by himself, one could understand how his claim was rejected by the RPD and RAD once he was found not credible. However, it is unclear whether that adverse credibility determination would have necessarily been made had his wife's testimony been accepted as credible. Upon carefully reviewing the decisions of the RPD and RAD, I conclude that there is no negative finding expressed in clear and unmistakable terms about Mrs. Houssein's credibility. The decision is fatally flawed in this respect and must be set aside.Footnote 123 [emphasis added]
Generally speaking, for related refugee protection claims, the Board is neither required to refer to decisions rendered by other panels nor bound by them,Footnote 124 even if it is considering the claims of family members of a claimant decided by another member from the same division.
Gutierrez is an example of a case where a refugee protection claimant wanted to rely on the fact that he had family members whose claims had previously been accepted. The Court found as follows:
In my view, there is no substance to the Applicant's arguments that the Board was obliged to decide his claim in accordance with the positive decisions received by his parents and two siblings. Each refugee claim is decided on its own facts and merits. See
Gilles v Canada (Citizenship and Immigration),
2010 FC 159 at para
43. Cases do arise – particularly in family situations – where the same facts are relied upon, so that it makes sense to decide them in the same way or, at least, to explain why they should not be decided in the same way. See
Mengesha v Canada (Citizenship and Immigration),
2009 FC 431 at para
5. But this is not one of those cases. The facts of the Applicant's case were very different from those of his parents and siblings, even though the same agent of persecution is alleged.Footnote 125 [emphasis added]
Uygur, the Court provided another reason why the fact that one claimant was granted refugee status based on a similar experience should not bind the Board: “previous decisions, even regarding family members, may have been wrongly decided”.Footnote 126
Therefore, if the Board has before it relevant evidence with respect to a
related claim (heard separately) that may support the claim or undermine the claimant's credibility, it must take it into account and should explain its decision to adopt or discard the conclusions reached by another member regarding similar facts.Footnote 127
Yeboah, the application for judicial review concerned a RAD decision confirming the RPD's determination rejecting the claim of Ms. Sarpong's spouse on the basis of a lack of credibility. He alleged that he was persecuted by Ms. Sarpong's family members, who accused him of pressuring his wife into declining the role of Queen Mother. The Court concluded that the RAD committed a reviewable error in failing to properly consider the RPD's decision granting Ms. Sarpong refugee status:
The RPD decision granting Mrs Sarpong's refugee claim found Mrs Sarpong to be credible since she testified in a straightforward and spontaneous manner. The RPD therefore believed her testimony that she was chosen to be the Queen Mother following the passing of her grandmother . . . . It is correct to say, as the Respondent contends, that this Court has established in a large number of cases that the IRB is not bound by the result in another claim, even if the claim involves a relative. Refugee claims are determined on a case by case basis [citation omitted] However,
in a case such as the present, where the Applicant's narrative is exactly the same as his wife's, as are the agents of persecution, the RAD was required toprovide sufficient reasons, grounded in the evidence, to support its conclusion that Mrs Sarpong was never chosen to be Queen Mother, which is a marked departure from the RPD's previous positive decision.Footnote 128 [emphasis added]
A panel's reliance on the findings of another panel “must be limited, careful and justified.”Footnote 129 In
Dinehroodi, the Board did not believe the claimant's narrative after considering the unfavourable decision regarding her husband. The RD had rejected the husband's claim for lack of credibility three years earlier. Although it was clear from the Board's reasons that it did not base its credibility finding solely on the previous decision regarding the husband, the Board seemed to have used that decision in support of its conclusion that the claimant's story was not credible. The Board specified in its detailed reasons for decision why it did not believe the husband's story. On the issue of whether the Board was entitled to consider the unfavourable determination regarding the husband, the Court ruled as follows:
In this case, we are dealing with the Board's use of a different panel's reasons for rejecting the claim of a different refugee claimant: the applicant's husband. The respondent contends that the Board was entitled to rely on those reasons because the applicant knew that they were being admitted into evidence and did not raise any objections at that time. In my view, and based on the case law cited above,
while the Board was entitled to rely on the previous panel's decision to some extent, for example, with regard to any factual findings made about country conditions, . . .
it was not entitled to rely on the Board's overall conclusions as proof that the applicant's husband and, in turn, the applicant's own claim was fabricated, a finding which is clearly determinative of the Board's conclusion with respect to the applicants' credibility and which is clearly an important part of the Board's decision. As such, having improperly relied on the previous panel's adverse credibility finding as support for its own adverse credibility finding, it is my opinion that the Board's credibility determination was patently unreasonable and that it based its decision on irrelevant evidence.Footnote 130 [emphasis added]
2.2 Basing a decision on the evidence and relevant and material aspects of the claim
Magonza, the Court explains the concept of relevance as follows:
Thus, while probative value is a matter of degree, relevance is a binary concept. As long as a piece of evidence has some probative value, it is relevant. Relevance is often a component of tests for the admissibility of evidence.Footnote 131
The Federal Court has held that a finding of lack of credibility must be based on relevant considerations.Footnote 132 In
Abdinur for example, Mr. Abdinur's PRRA and H&C applications were rejected because of negative credibility findings that were used to conclude that he had family support available in Somalia. One of the adverse credibility findings was based on Mr. Abdinur's inability to provide the name of the person who accompanied him to Canada when he was five years old. The Court stated:
It is also important to recall the relevant issue: whether Mr. Abdinur has family that he can rely on in Somalia. The relevance of the name of the cousin's aunt who accompanied him from Kenya to Canada in 1994 is not immediately apparent, and the Minister's delegate does not indicate why she considered it “basic information.” As this Court has held, credibility determinations should not be based on a “memory test,” nor on a granular analysis of issues irrelevant or peripheral to the claim:
Shabab v Canada (Citizenship and Immigration),
2016 FC 872 at para
Lawani v Canada (Citizenship and Immigration),
2018 FC 924 at para
There is a considerable body of case law which indicates that a finding of lack of credibility due to contradictions in the testimony of a claimant or witness must be based on actual contradictions or discrepancies which are material or serious in nature.Footnote 134 Minor or secondary inconsistencies in the claimant's evidence should not lead to a finding of general lack of credibility where the documentary evidence supports the credibility of the claimant's story.Footnote 135
Inconsistencies, misrepresentation and concealment should lead to the rejection of the claim only where they are material. Where the panel considers that the claimant is lying, and that the lie is material to the claim, it must nevertheless examine all the evidence and base its conclusion on all the evidence before it (see sections 2.1.2. Assessing evidence found to be credible and 2.1.3. General finding of lack of credibility).
A number of Federal Court decisions make the point that where the claimant's statement of fact is categorically rejected, the contradictions (or omissions or inconsistencies) must relate to essential elements or critical points, i.e., points going to the very basis of the claim. In
Irivbogbe, for example, where the claim was based on the claimant's bisexuality, but the claimant did not mention his alleged same-sex partner on his BOC form, the Court states:
I note that jurisprudence has established that omissions from a BOC narrative may ground adverse credibility findings where the omission is significant, material or central to the claim [citations omitted]. Although the Applicant is correct that minor inconsistencies are not grounds to undermine his credibility, the RAD clearly found this inconsistency to be significant. As the RAD noted, the Applicant's sexuality is the basis for his claim and, because he was represented by counsel when he prepared his BOC, he would have known the importance of proving this aspect of his claim. In my view, this conclusion and the RAD's finding that the credibility of the Applicant's allegation that he was involved in a same sex relationship in Canada was thereby undermined were reasonable.Footnote 136
Omissions or a lack of detailed information are important when they relate to essential elements of a claim.Footnote 137 However, the panel must be careful to avoid dealing with issues that are secondary or peripheral to the refugee protection claim as it is a mistake to engage in a microscopic analysis.Footnote 138
Paulo, the Court explained that an analysis can be rigorous without being microscopic:
An analysis cannot be called “microscopic” or over-vigilant because it is exhaustive. It is not the thorough, detailed and rigorous nature of the analysis or examination conducted by an administrative decision maker that makes it “microscopic”. Quite the contrary, such an approach reflects the rigour that we have the right to expect from an administrative decision maker's analysis. I would even say that such rigour is expected to satisfy the requirement for a “justified” decision established in
Vavilov. An administrative decision maker's analysis veers towards being “microscopic” when it delves into peripheral issues and examines contradictions that are insignificant or irrelevant to the purpose of the refugee claim. In that case, the Court's intervention may be required.Footnote 139
However, it has also been recognized in some cases that, even if the differences or contradictions seem unimportant when taken individually, they may lead to a conclusion of lack of credibility when considered together and in contextFootnote 140 (see section
2.1.3. General finding of lack of credibility).
2.2.3 Contradictions, inconsistencies and omissions
Contradictions, omissions or inconsistencies in the testimony of a claimant or witness can justify a finding of lack of credibility.Footnote 141 However, as noted above (see section
2.2.2. Materiality), the inconsistencies must be sufficiently material and relate to matters relevant enough to the case to justify an adverse finding.
These considerations also apply to contradictions, omissions or inconsistencies in the claimant's prior statements, whether made to Canadian immigration authoritiesFootnote 142 (see section
2.2.4 BOC forms and statements made to immigration officials) or authorities elsewhere;Footnote 143 in a previous hearing where, for example, the claim is heard de novoFootnote 144 (see section
2.1.4 Joined and related claims); or in the claimant's BOC formFootnote 145 (see section
2.2.4 BOC forms and statements made to immigration officials) or that of a relative (see section
2.1.4. Joined and related Claims).
However, it appears that no substantial conclusion can be drawn from the claimant's failure to inform immigration authorities abroad of his or her fear of persecution when he or she applied for a visa to come to CanadaFootnote 146 or, depending on the totality of the evidence and explanations, to provide certain information in his or her admissibility interview notes (see section
2.2.4 BOC forms and statements made to immigration officials).
Regardless of where contradictions, discrepancies or omissions may be found in the evidence provided by, or concerning the claimant, the following general principles set out in
SheikhFootnote 147 apply to the assessment of credibility:
The inconsistencies relied on by the Refugee Division must be real (Rajaratnam v. M.E.I., 135 N.R. 300 (F.C.A.).
The Refugee Division must not display a zeal “to find instances of contradiction in the applicant's testimony. . . . [I]t should not be over-vigilant in its microscopic examination of the evidence” (Attakora v. M.E.I (1989), 99 N.R. 168).
The contradiction or inconsistency must be rationally related to the claimant's credibility (Owusu-Ansah v. Minister of Employment and Immigration (1989), 98 N.R. 312 (F.C.A.)).
Explanations which are not manifestly implausible must be taken into account (Owusu-Ansah, supra).
The inconsistencies found by the Refugee Division must be significant and be central to the claim (Mahathmasseelan v. Canada (M.E.I.), 15 Imm L.R. (2d) 30 (F.C.A.)) and must not be exaggerated (Djama v. The Minister of Employment and Immigration, A-738-90, dated June 5, 1992).
(See also sections 2.2.1 Relevance and 2.2.2 Materiality)
Also, as would ideally be the case for any analysis of a credibility issue, particularly where the issue raised is material, the RPD should take into account the claimant's explanations, any relevant evidence on the record and the procedural circumstances that could reasonably explain the discrepancies raised.Footnote 148
2.2.4 BOC forms and statements made to immigration officials
Admissibility of port of entry notes
It is well established in the case law that the Board may take statements made to immigration authorities at the port of entry into account to assess the claimant's credibility.Footnote 149 As the Court noted in
Markandu, “[o]ne of the key tools available to the Board to test the credibility of an applicant is to compare his PIF and POE statements and question him about any discrepancy during the hearing.”Footnote 150
Notes taken at the port of entry or documents prepared by Canadian immigration officers are admissible at RPD hearings without any further participation by the Minister at the hearing. The Court states the following in
While this Court recognizes the different circumstances under which the POE notes and the PIF are prepared, it has long been established that POE notes are admissible evidence before the Board (Multani v. Canada (Minister of Citizenship and Immigration) 2000 CanLII 15022 (FC)). Furthermore, . . . there is ample jurisprudence to the effect that discrepancies between the POE notes and the PIF may be considered by the Board in assessing the credibility of an applicant and that the Board is entitled to draw negative inferences from any significant omission in the POE notes [citations omitted].Footnote 151
Port of entry notes or other documents prepared by immigration officers are admissible even if they are not signed and datedFootnote 152 and even if the author is not called or available to testify.Footnote 153 Port of entry notes are admissible even if there is no evidence that they were prepared in accordance with a ministerial order.Footnote 154
In accordance with the requirements of natural justice and subsection 34(1) of the RPD Rules, the RPD must make timely disclosure of any document, including port of entry notes, that it intends to use at a hearing. This was explained by the Court in
Failure to disclose impedes the ability of the accused in criminal proceedings to make full answer and defence, a common law right which has acquired new vigour since its inclusion in Charter, section 7 as one of the principles of fundamental justice.
Likewise, the ability of a Convention refugee claimant to make full answer and defence to evidence adduced against his claim or to impeach his credibility is critical. The role of an RHO is similar in many ways to that of Crown counsel in criminal proceedings. Immigration's own manuals indicate that the RHO is required to disclose all documentary evidence to be used at the hearing.
While the interview notes may not be “documentary evidence”, the principles enunciated with respect thereto would extend to them. With particular reference to the CRDD, the
Immigration Act ensured a claimant the right to be represented and a reasonable opportunity to present evidence, cross-examine witnesses and make representations. These provisions could be rendered illusory if the applicant can be precluded from making the equivalent of full answer and defence.
To meet the test of fairness, disclosure must be sufficiently timely to allow counsel to fully and effectively fulfill his role and to allow the party requesting disclosure to prepare.Footnote 155 [emphasis added]
Summoning the immigration officer to testify
A claimant who wants to challenge the accuracy of the documents prepared at the port of entry must summon the immigration officer to testify at the hearing.Footnote 156 Even though a party can request that the Division issue a summons ordering a person to testify at the hearing, it is the requesting party who is responsible for providing the issued summons to the witness.Footnote 157
Zaloshnja, Justice Tremblay-Lamer rejected the argument that the Board had improperly exercised its discretion by refusing to require the immigration officer at the POE to be summoned for cross-examination:
The applicant further argues that the Board improperly exercised its discretion by refusing to require the immigration officer at the POE to be summoned for the purpose of cross-examination. I disagree. There was no duty on the Refugee Division to call the immigration officer. If the applicant believed that cross-examining the officer would assist her claim, it was up to her to call him as a witness. Rule 25(1) of the Convention Refugee Determination [now 45(1) of the RPD Rules] specifically direct claimants to make an application in writing if they wish to summon a witness. The burden of proof is on claimants to substantiate their claims and to call whatever evidence and witnesses they require.Footnote 158
The Division must be cautious in exercising its discretion regarding whether or not to issue a summons. In a case where the immigration officer's testimony is required to prove that the port of entry notes are inaccurate, the panel's refusal to issue a summons may constitute a breach of natural justice.Footnote 159
Inconsistencies between port of entry notes and BOC form or testimony
The RPD may find a claimant not to be credible, or make findings that undermine a claimant's credibility, due to inconsistencies in statements made on the claimant's BOC form or to an immigration officer at the port of entry.
Navaratnam, Justice Shore sets out four general principles regarding discrepancies and omissions in statements made in a BOC form or at the port of entry:
It is trite law that statements to immigration authorities at the POE may be considered by the Board in order to evaluate a claimant's credibility and that
a person's first story is usually the most genuine, and therefore the one to be believed. [emphasis added, citations omitted]
As well, contradictions between the Applicant's oral and written statements justify a negative finding of credibility. [citations omitted]
Moreover, it [is] entirely open to the Board to conclude that the Applicant's failure to mention important facts in his Personal Information Form [PIF] was the basis for a negative conclusion as to the Applicant's credibility, most especially after he had the opportunity to amend his PIF at the hearing and declared it to be complete and accurate. [citations omitted]
A hearing is an opportunity for an applicant to complete his evidence and not to introduce new and important facts to his story. [citations omitted]Footnote 160
However, it is well established that decision makers in refugee protection cases must exercise caution before calling into question a claimant's credibility on the basis of inconsistencies, omissions and details between a document signed at the port of entry upon arrival in Canada and subsequent submissions such as oral testimony or a BOC form.Footnote 161
Mojica Romo, the Court found that the RPD had committed errors described in the case law that the claimants cited:
The applicants are correct in contending that the Federal Court has pointed out some of the pitfalls for tribunals using port of entry notes and PIFs,
going overboard to identify contradictions and omissions in order to find a lack of credibility, as these are not always indicative of a lack of credibility. The Commission should, in each case, consider the relevance and significance of the contradiction or omission and take into account any explanation, evidence or circumstances that might explain the discrepancy.Footnote 162 [emphasis added]
(See sections 2.2.1 Relevance and 2.2.2 Materiality)
However, where the inconsistency concerns a key element of the claim, such as its very basis, the Court will uphold a negative credibility finding. For example, in
Eker, where the RPD did not believe the account of persecution based on the principal claimant's imputed political opinion, the Court concluded as follows:
. . . Thus, the RPD committed no reviewable error by examining the answers given at the port of entry by the applicant. In this case, the contradictions in the applicant's narrative relate to key elements of the applicants' claim. In particular, the applicant was mistaken about, or contradicted himself on, the date of the general election, on the name of the party with which he was associated, the detention to which he was subject and on whether he had been sought by police.Footnote 163
Where the claimant provides an explanation for an omission, it is a mistake to reject the explanation without giving reasons. In
DiazPuentes, when listing his persecutors during his interview at the port of entry, the claimant had mentioned the Bolivarian Circles, but not FARC. He explained this omission by the fact that he had been told to be brief and that the Bolivarian Circles were the group he feared most. The RPD rejected this explanation and concluded that he had made up the facts about FARC since he had failed to mention them. As the RPD did not provide any reason for its conclusion and did not consider the port of entry evidence in the given context, the Court found the conclusion to be patently unreasonable.Footnote 164
Factors to Consider
In its assessment of inconsistencies, the RPD must take into account factors such as the psychological state of the claimant, his or her young age and the particular vulnerability of abused women.(See alsosection 2.5. Taking the Claimant's Circumstances into Account)
Medical or psychological reports may reveal that inconsistencies or omissions are due to medical reasons rather than a claimant's lack of credibility. In
Joseph, the Court stated as follows:
While it is not for an expert to determine if the inconsistencies in a refugee protection claimant's testimony can be excused by post‑traumatic stress syndrome [. . .], the fact remains that caution must be exercised where there is a connection between the inconsistencies or omissions identified by the RPD and the cognitive errors referred to in a medical or psychological report. . . .”Footnote 165 [citations omitted]
Even if the claimant is a minor,Footnote 166 the claimant will generally not be able to use his or her age (17 in this case) to explain significant omissions in their PIF.
Joseph, the Court refers to the Guidelines on
Women Refugee Claimants Fearing Gender‑Related Persecution:
According to Guideline 4, footnote 30, refugee women who have been raped and are suffering from PTSD have symptoms that include difficulty in concentration and memory loss or distortion. The RPD's conclusion that the applicant should have coherently explained her fear of being forcibly confirmed in her claim for refugee protection because [translation] “the initial stress, upheaval and worries” were past her therefore takes no account of the duration and effects of PTSD as explained in the evidence submitted.
. . . Since it is clear from the reasons for decision that the RPD relied mainly on temporal inconsistencies and memory problems as a basis for disregarding the impact of the PTSD diagnosis on the applicant's ability to testify, I am of the view that the RPD engaged in a circular and inadequate analysis in which it disregarded the experts' diagnosis on the basis of the symptoms associated with that diagnosis. Given the impact that the applicant's severe PTSD may have on her ability to give coherent testimony, this reasoning is unreasonable.Footnote 167
Mabuya, the Court explains that decisions that ignore the difficulties which can affect the credibility of female claimants are likely to be overturned:
There are numerous cases in which this Court has set aside RPD decisions that fail to exhibit adequate sensitivity to the issues enshrined in the Gender Guidelines. Often, these cases turn on a finding that the Board's credibility determinations fail to take account of the realities faced by a female claimant, such as the impact of cultural taboos surrounding sexual violence. As a result of such taboos, survivors of sexual violence may fail to report assaults or even to speak about them contemporaneously, but such failures are not necessarily indicative of a lack of credibility. In addition, there are almost invariably no witnesses to sex-related crimes. As a result, it is often difficult for claimants who allege to have experienced sexual assault to provide corroboration for their claims. Moreover, many women find it difficult to speak about sexual violence to a stranger in the context of a hearing. Decisions which are not adequately sensitive to these sorts of realities and which impugn the credibility of claimants based on lack of corroboration or difficulty in speaking about the assault have often been set aside as unreasonable.Footnote 168 [citations omitted]
BOC form omissions
Regarding omissions in the document that a claimant sends to the RPD to make a claim,Footnote 169 this document, when compared to the port of entry notes, must contain much more detailed information. The Court described the content and extent of the details provided in the BOC form's narrative in
It is not incorrect to say that answers given in a PIF should be brief but it is incorrect to say that the answers should not be complete with all of the relevant facts. It is not enough for an applicant to say that what he said in oral testimony was an elaboration.
All relevant and important facts should be included in one's PIF. The oral evidence should go on to explain the information contained in the PIF . . . .Footnote 170 [emphasis added]
For example, in
Ogaulu,Footnote 171 the claimant stated in his BOC form that none of his family members were with him when he was assaulted. This statement directly contradicted his testimony that his brother was present. In addition, in the BOC form, the claimant mentioned a friend who was present at the time of his assault, but did not mention the presence of his brother, who, according to his testimony, played a more significant role in the incident. Taking into account the omissions as well as the significant inconsistencies, the RAD found that the claimant's refugee protection claim lacked credibility. The claimant argued that he simply provided further details during his testimony to support the narrative in his BOC form and that this fact should not be used to cast doubt on his credibility. However, in the Court's view, the details of the assault were important because they went to the very heart of the claimant's refugee protection claim. Therefore, their omission from the BOC form was not a minor detail or incidental information, but rather an important element of the claim. The Court upheld the RAD's decision.
Husyn,Footnote 172 the claimants argued that information that becomes known after the BOC form is filed can be certified at the hearing and that it is generally not necessary to amend the BOC form. While the Court agreed with the claimants that they were not required to file an amended BOC form, in the circumstances of this case, the failure to do so supported the adverse inference drawn by the RPD.
Similarities in narratives of unrelated claimantsFootnote 173
The similarity between a claimant's BOC form and the BOC forms of other claimants can be used to call into question the credibility of the claim, although the Board must consider whether there is an explanation for these similarities.
For example, in
Liu, the Court upheld the RPD's decision rejecting the claim that it found not credible, largely because of the similarity of the PIF to those of six other claimants. All of the narratives were “strangely similar” in form and content. The Court stated as follows:
It was open to the Board to examine the striking similarities between the six other claims which had been filed through the services of the same translator and legal counsel, and to draw a negative inference as to the credibility of the allegations in the principal applicant's PIF narrative. The fact that the Board did not question the translator's integrity or credibility does not bar it from taking a critical view of his explanations for the similarities between the seven claims. This case is distinguishable from Justice Campbell's decision in
Bao v. Canada (Minister of Citizenship and Immigration),
2006 FC 301,  F.C.J. No. 411 (T.D.) (QL), in which he wrote at paragraphs 2 and 6:
A unique element of the decision by the RPD is the comparison of the Applicant's PIF narrative against the details of the PIF in six other Falun Gong claims. […]
Given this result, I find that it was incumbent on the RPD to exclude the unsubstantiated suspicion from the decision-making process. This the RPD did not do. Indeed, the way the decision reads, the RPD proceeded to use the unsubstantiated suspicion to find that the Applicant's “PIF narrative is insufficiently personal to be credible”. […]
In the case at bar, the Board gave “little weight” [...] to Exhibit C-6 because of the specifics of the strikingly similar seven cases. It did not dismiss the applicants' claim only on the basis of these strikingly similarities. It found implausibility and inconsistencies.Footnote 174
Zhang, the facts were very similar to those in
Bao. The Court found that the RPD could not reasonably conclude from the mere fact that the seven PIFs were similar that it was more than likely that the claimant's detailed narrative was not true. Such a conclusion did not take into account the evidence before the Board as to why the PIFs were similar. The translator admitted to having used a list of questions. There was a clear similarity between the questions and the form of each of the seven PIFs, which may explain the identical words in some places in the PIFs.Footnote 175
The RPD and the RAD are not necessarily required to admit testimony solely because it was not contradicted at the hearing. The panel is entitled to evaluate the testimony on the basis of reasonableness, common sense and rationality and may reject unrefuted evidence if it is not consistent with the probabilities of the case as a whole.Footnote 176
Adverse findings of credibility must be reasonable and not be based solely on conjecture or speculation. It is not appropriate for decision-makers to base their assessment of credibility on their own ideas about how events actually took place or should have taken place. See, for example
Selvarasu, where the claimant had asserted at the first sitting of the hearing that his passport had been obtained via regular means, whereas at the second hearing he stated that it had been obtained through a bribe. He explained that he was not aware of the bribe until he spoke to his father after the first session. The RPD rejected his explanation and concluded that it was not plausible that the claimant did not know beforehand that his passport had been obtained through a bribe and that he took no steps to inquire, once he was safe in Canada, about the circumstances in which his passport was obtained. The Court found the RPD's conclusion to be unreasonable. “In so finding, the
RPD was speculating about what the applicant should have done or what would have been the reasonable course of action.”Footnote 177 [emphasis added]
It is not enough to state that the claimant's story is “implausible” without further explaining the reasoning behind this conclusion.Footnote 178 Where the RPD makes a finding of lack of credibility based on the implausibility of evidence, its conclusions must be supported by the evidence. This also means that all the evidence that supports the likelihood of a claimant's allegations must be considered and weighed before concluding that the allegations are implausible.Footnote 179
Santos,Footnote 180 Justice Mosley cites passages from
Leung in which these principles are set out:
Valtchev [citations omitted], Justice Muldoon stated the following at paragraphs 7-8 with regards to plausibility findings of the Board:
A tribunal may make adverse findings of credibility based on the implausibility of an applicant's story provided the inferences drawn can be reasonably said to exist. However, plausibility findings should be made only in the clearest of cases, i.e., if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant. A tribunal must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant's milieu. . . .Footnote 181 [emphasis added]
Leung [citations omitted] . . . Associate Chief Justice Jerome stated:
 [T]he Board is under a very clear duty to justify its credibility findings with specific and clear reference to the evidence.
 This duty becomes particularly important in cases such as this one where the Board has based its non-credibility finding on perceived “implausibilities” in the claimants' stories rather than on internal inconsistencies and contradictions in their narratives or their demeanour while testifying.
Findings of implausibility are inherently subjective assessments which are largely dependant on the individual Board member's perceptions of what constitutes rational behaviour.
The appropriateness of a particular finding can therefore only be assessed if the Board's decision clearly identifies all of the facts which form the basis for their conclusions.
The Board will therefore err when it fails to refer to relevant evidence which could potentially refute their conclusions of implausibility. . . .Footnote 182 [emphasis added]
The principles deriving from these two decisions were succinctly summarised by the Court in
Santos as follows:
. . . [A]s stressed in
Valtchev, supra, plausibility findings involve a distinct reasoning process from findings of credibility and can be influenced by cultural assumptions or misunderstandings. Therefore,
implausibility determinations must be based onclear evidence, as well as a clear rationalization process supporting the Board's inferences, and should refer to relevant evidence which could potentially refute such conclusions . . . .Footnote 183 [emphasis added]
Al Dya, the Court revisited the interpretation to be given to the principles set out in
Valtchev that conclusions of implausibility should only be drawn in “the most obvious cases.” The Court made the following observations:
. . .
Valtchev does not create a standard of impossibility. In other words, it does not limit implausibility findings to cases where it is impossible that the alleged events occurred. Rather, this Court has equated the “clearest of cases” and “could not have happened” language from
Valtchev to situations where it is “clearly unlikely” that the events occurred in the asserted manner, based on common sense or the evidentiary record . . . .Footnote 184 [emphasis added]
. . . In my view, the “clearest of cases” standard from
neither displaces the balance of probabilities standard nor
reverses the legal burden of proof.Footnote 185 [emphasis added]
. . . Its use of “clearest of cases” or “clearly unlikely” language does not mean that facts need not be proved on a balance of probabilities, and does not disturb the overall burden. Rather, this language recognizes that
the unusual or improbable does occur, and that it is
unreasonable to reject evidence as not credible simply because the events it describes are unusual. In other words, it
avoids a fallacy that would equate the overall probability of an event occurring in another country with either the likelihood of it having happened to a particular claimant, or the likelihood the claimant is lying in claiming it happened to them.Footnote 186 [emphasis added, except for the word “avoids,” which was underlined in the original.]
Al Dya, the Court emphasized the importance that
Valtchev placed on documentary evidence in assessing whether the claimant's allegations are plausible:
Valtchev also seeks to ensure that implausibility findings do not rely on misplaced assumptions about what is likely or rational from a Canadian frame of reference. In this regard, it is worth noting that
Valtchev describes two related aspects of plausibility findings: the sense of what is rational or logical (“outside the realm of what could reasonably be expected”), and the assessment of the relevant documentary evidence (“documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant”). These are related since
what is considered rational or logical - what “makes sense” - in a given context may be impacted by the documentary evidence, notably the evidence of country conditions . . . .Footnote 187 [emphasis added, citations omitted]
The Federal Court has repeatedly stated that extreme care must be taken in assessing different cultural norms, for example, the practices followed in different political, police and social systems.Footnote 188
Actions that may seem implausible by Canadian standards may be plausible in the context of the claimant's social and cultural background. For example, in
Manan, the Court held that the RAD was not reasonable in concluding that it was implausible that Mr. Manan did not seek medical attention for his physical injuries after his release. Findings of implausibility are only permitted in the clearest of cases. Bearing in mind
Valtchev's warning regarding cultural norms, the Court stated:
The circumstances in which Canadians might seek professional medical care should not be superimposed upon non-Canadians, especially those living in highly-volatile environments such as Afghanistan and suffering from psychological trauma. I note both Mr. Manan and the RAD liken Mr. Manan's physical injuries to minor [childhood] injuries—i.e. not very serious. Further, both Mr. Manan and his brother provided evidence their family did not leave their house unless absolutely necessary because of ongoing security concerns, concerns which are reinforced in the [disallowed] father's letter . . . .Footnote 189
Al Dya, the Court also points out that even in the absence of documentary evidence showing that the events could not have occurred in the manner alleged by the claimant,
Valtchev does not rule out the possibility of drawing conclusions of implausibility if the facts go beyond what can logically be expected.
At the same time,
Valtchev does not preclude consideration of plausibility or likelihood in making credibility assessments. If the evidence shows that a particular occurrence never occurs or is clearly unlikely, this may form a reasonable basis for an adverse credibility finding, particularly if there is nothing to explain or corroborate the clearly unlikely occurrence. Similarly,
an assertion may be so far-fetched, so far outside the realm of what could be reasonably expected, even after taking cultural differences into account, that it is implausible, even if the objective evidence does not directly address the likelihood of its occurrence.Footnote 190 [emphasis added.]
For example, in
Eyong,Footnote 191 the claimant failed to convince the Court that the RAD had erred in concluding that his claim was not credible on the basis that it would be implausible for the police to allow the claimant's wife to take photographs showing the police abusing him.
While the panel has the right to assess the evidence and evaluate credibility, decisions where the finding of lack of credibility is based on perceived implausibilities may be more likely to be subject to review by a higher court. The Federal Court has indicated that it will not give undue judicial deference to the Board's assessment of the plausibility of testimony, as this assessment is based on inferences and is open to challenge, particularly where those inferences are based on “rationality” and “common sense”.Footnote 192
Regarding the standard of review of findings of implausibility, the Court, in
Contreras,Footnote 193 responded to the claimant's argument in
GironFootnote 194 that a lower standard of review should be applied to findings of implausibility than to the Board's findings of credibility. The Court rejected this argument by referring to the Federal Court of Appeal's comments in
Aguebor, where Justice Décary stated:
It is correct, as the Court said in
Giron, that it may be easier to have a finding of implausibility reviewed where it results from inferences than to have a finding of non-credibility reviewed where it results from the conduct of the witness and from inconsistencies in the testimony. The Court did not, in saying this, exclude the issue of the plausibility of an account from the Board's field of expertise,
nor did it lay down a different test for intervention depending on whether the issue is “plausibility” or “credibility”.
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony: who is in a better position than the Refugee Division to gauge the credibility of an account and to draw the necessary inferences?
As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review. In
Giron, the Court merely observed that in the area of plausibility, the unreasonableness of a decision may be more palpable, and so more easily identifiable, since the account appears on the face of the record. In our opinion,
Giron in no way reduces the burden that rests on an appellant, of showing that the inferences drawn by the Refugee Division could not reasonably have been drawn . . . .Footnote 195 [emphasis added]
The finding will be upheld where the inferences that led to the finding of lack of credibility are not so unreasonable as to justify the intervention of a higher court. In other words, the Federal Court will not substitute its assessment for that of the panel if the panel could legitimately have made the conclusion it did, even though the Court might have drawn other inferences or concluded that the evidence was plausible.Footnote 196
2.2.6 Incoherent or vague testimony
A claim may be rejected as lacking in credibility if the claimant's testimony is found to be incoherentFootnote 197 or vague, or lacking in sufficient knowledge or detail that could reasonably be expected of a person in the claimant's position and with the claimant's social and cultural background.Footnote 198
The Board must be cautious and not make negative findings on the basis of an expectation of finer details or an unreasonably high standard of knowledge, particularly when it comes to religion or politics, because the claimant's responses may vary depending on their degree of religious practice and instruction or their level of political involvement.
For instance, in
Yilmaz,Footnote 199 the Court held that the RPD had required a level of political knowledge usually required of an active member, rather than a simple supporting member of the party, and erred by comparing the plaintiff with an informed person in a free world.
However, in the decisions listed below,Footnote 200 the Court held that it was reasonable to conclude that the applicant's lack of political knowledge could form the basis of a negative credibility finding:
Mbuyamba: The Court found the negative inference drawn by the RPD from the applicant's inability to provide more than general examples of the organization's activities was reasonable, given that he said he had been an “activist” who had been involved since 2016.
Lunda:It was not unreasonable for the RPD to draw an adverse inference as to Mr. Lunda's credibility because of his lack of basic knowledge of the party that he claimed to have actively supported and represented for several years. The questions that Mr. Lunda was unable to answer were basic questions.
Ahmed: The Applicant did not have a level of knowledge that would be expected of a person of his asserted profile, i.e., someone who alleged he had been an active member of the Broad National Movement in Saudi Arabia for several years.
M.T.A.: The Court concluded that it was open to the RAD to doubt the Applicant's past political involvement when she was unable to speak to the first demonstration she attended, how many she attended or what she was protesting.
In the same way as for political knowledge, the Board may make negative credibility findings when a claimant's religious knowledge is not proportionate to their alleged religious profile. However, such findings must be founded on reasonable expectations.
For instance, in
Ullah,Footnote 201 the Court had the impression that the CRDD member had erroneously expected the claimant's answers about his religion to be equivalent to the member's own knowledge of that religion. In
Lin,Footnote 202 the Court found that the RPD had engaged in an overly stringent and microscopic examination of the applicant's knowledge of Falun Gong. It had erroneously weighed his testimony on this issue against its own misguided idea of what a person in the claimant' circumstances would or should know or understand. The RPD had based its finding on unattainable and unreasonable requirements for knowledge of Falun Gong.
Bouarif,Footnote 203 Justice Roy explains that the Board can reasonably conclude that the sincerity of the claimant's religious beliefs is not genuine if their knowledge is lacking:
It is well established in law that it is open to the RPD to assess and consider a refugee protection claimant's motive for practicing a religion, including the genuineness of those religious beliefs, and to rely on that motive in rejecting the refugee protection claim in cases such as this one where the essence of the refugee claim rests on the allegation that continuing a newly acquired religious practice in the country of origin might place the refugee claimant at risk (Su v Citizenship and Immigration) 2013 FC 518, at para.
18). In so doing, the RPD is entitled to assess the refugee claimant's knowledge of the details of the religion, although such inquiry must be approached with caution given the highly subjective and personal nature of a person's religious beliefs (Lin v Canada (Minister of Citizenship and Immigration),
2012 FC 288, at para.
The Court has confirmed decisions in which the Board rejected claims for refugee protection that it deemed not credible because of the claimant's lack of religious knowledge. For example:
Hou:Footnote 204 The Court was of the opinion that given the level of alleged study and the other aspects of the applicant's evidence, the Board's questioning of the applicant regarding his knowledge of Falun Gong was appropriate. It held that there was evidence before the Board to support its finding that the applicant's knowledge was insufficient to prove he was a sincere practitioner, given the perfunctory nature of the applicant's responses to the questions posed and his inability to answer other questions, including the question on the eight characteristics [of Falun Gong].
Gao:Footnote 205 In the opinion of Justice Southcott, the Board may engage in religious questioning in an effort to assess the genuineness of a claimant's beliefs, but “such questioning and resulting analysis must focus on the genuineness of those beliefs and not whether they are theologically correct.” The Board posed relatively basic questions and, for the most part, based its conclusion as to the lack of genuinely held belief not upon an assessment of the correctness of the claimant's answers but rather upon the claimant's failure to provide answers or answers of any detail. [emphasis added]
Bakare:Footnote 206 Both the RAD and the RPD concluded that the Applicant should have had a basic knowledge of the Ogboni cult's practices and rituals if he was privy to meetings over the course of 13 years.
Wang:Footnote 207 It is reasonable for a decision-maker to expect a person to have rudimentary knowledge of their religious beliefs. The Court found that the RPD and RAD only sought minimal knowledge, given the low bar in the jurisprudence and the Applicant's personal circumstances, and even then he was unable to make a rudimentary comment about the nature or purpose or principles of Falun Gong or sufficiently explain why he lacked such knowledge.
Kao:Footnote 208 Mentu Hui is a Christian sect that is outlawed in China. The claimant had reportedly attended only four of its services before disassociating himself from the faith. The Court was of the opinion that the RAD's expectations had been modest. Mr. Kao had identified the concept of the “three times Jesus” as central to both the Mentu Hui faith and his personal beliefs, but when asked about it, he was unable to provide specific or cogent answers.
Zheng:Footnote 209 Justice Bell states that “…[I]t would be erroneous to suggest that subjective sincerity cannot be evidenced by objective knowledge. […] While I am not suggesting that objective knowledge is determinative of the question of sincerely held beliefs, it is certainly an evidentiary factor to be considered by the RPD.”
Bouarif:Footnote 210 The Court was of the opinion that “not being able to answer such basic questions as naming religious holidays, or identifying Mary as one of the twelve apostles, or for the applicant to offer a nebulous testimony when questioned on the knowledge of prayers [...] clearly illustrates that the RAD had before it evidence on which to base its conclusion that the applicant did not demonstrate the genuineness of his religious practice.”
Naturally, inconsistencies and a lack of sufficiently detailed testimony are not confined to cases based on religion or political opinion. In all cases where vague or inconsistent testimony raises questions of credibility, it is essential for decision-makers to determine whether there are cultural or psychological obstaclesFootnote 211 that could explain the manner in which the testimony has been presented.
Chairperson Guidelines 4Footnote 212 describe a number of reasons why women might have trouble testifying with the level of detail that decision-makers would normally expect.
Chairperson's Guideline 9Footnote 213 contains a section on assessing credibility and evidence pertaining to SOGIE, including assessing testimony that is vague and lacking in detail. As in other cases, when making a vagueness finding in a case involving an individual with diverse SOGIE, the decision-maker must establish whether there are cultural, psychological or other barriers that may explain the manner in which the testimony is delivered.
A claimant's level of education,Footnote 214 their ageFootnote 215 and their past social experiences are also factors to consider. This last factor may encompass a wide range of experiences. In
Lubana,Footnote 216 for instance, the Court took into consideration the fact that the applicant was a woman from a rural region of India and that she had never travelled to a Western country before, and concluded that her inability to present a smooth and coherent story of how she travelled to Canada did not raise any serious problems. The Court also stated that it was prepared to accept that the applicant's alleged maltreatment by the police in India would have made her suspicious and afraid of any officials, which would have affected her communication with Canadian immigration authorities. Therefore, it is “natural to expect that the applicant would not be very clear in her recollection of making a refugee claim.”
2.2.7 Demeanour at the hearing
The Court has recognized multiple times that in the context of a judicial review, the Board is in a better position than the Court to assess the applicant's credibility
since it has the benefit of seeing the applicant, his mannerisms and hearing his testimony.Footnote 217 It is also well‑recognized in law that the RPD can assess the credibility of the evidence by evaluating the witness's general demeanour during their testimony. However, it is important to understand that the “demeanour” used to assess credibility refers to the manner in which the claimant testifies.
Aguilar Zacarias, Justice Gleason noted that, in her view:
…the Board [...] employed an inappropriate understanding of demeanour in its analysis. The RPD buttressed its negative credibility determination by noting that during the hearing the applicant sat with his arms crossed and appeared “sullen and arrogant” which was “not an attitude one would reasonably expect from someone asking a foreign country to save his life (Decision at para 35). While this Court has recognized that the Board is well-positioned to assess a claimant's demeanour in its credibility determinations,
demeanour is intended to encompass the way in which the claimant responds to questions, such as whether the claimant appears uncertain or hesitates. For instance, in
Gjergo v Canada (Minister of Citizenship and Immigration), 2004 FC 303 at para
131 ACWS (3d) 508, Justice Harrington wrote: “This Court has previously held that the panel may take into account the demeanor of an applicant during his testimony. When the witness has difficulty giving adequate and direct answers, the panel may make a negative credibility finding.” […] In contrast, overly subjective conclusions based on an individual's posture or perceived attitude are not within the appropriate purview of a credibility assessment.Footnote 218 [emphasis added]
Amador Ordonez,Footnote 219 the Court did not find that the PRRA officer's reference to the applicant's gestures or behaviour, particularly his wringing of his hands or the pauses in his testimony, made the decision unreasonable. While acknowledging that a decision-maker's reliance on demeanour alone as a basis to assess credibility is fraught with danger, here, the applicant's demeanour is one of many factors considered by the officer. The Court stated that it was impossible to find that any of the references in the decision to the Applicant's demeanour reflected undue attention to a particular aspect, or incorporated stereotypes or biased assumptions. The fact that there are other plausible explanations does not make the officer's assessments unreasonable.
Guideline 9Footnote 220 warns against using behavioural stereotypes as an indicator of sexual orientation. Even before the publication of Guideline 9, the Federal Court was ruling along the same lines. In
Herrera, Justice Teitelbaum wrote:
There is really no reason for the Board to even mention the Applicant's “effeminacy” or lack thereof in its decision unless it is assuming that someone who is homosexual must be effeminate in appearance or behaviour […] This is a thoroughly discredited stereotype which should not have any bearing on the Board's judgment of the Applicant's credibility.
… Homosexuals are subject to extensive prejudice, of which effeminate stereotypes form a part.
The Applicant's lack of “effeminacy” is not a proper basis on which to impugn the credibility of his claim to be a homosexual … [emphasis added]Footnote 221
Although it is necessary to be very cautious before basing a negative credibility finding on a claimant's demeanour, a panel may legitimately have regard to the way a witness responds to questions, including hesitations, vagueness, changing or elaborating on their versions of events, and memory.Footnote 222
Some examples of demeanoursFootnote 223 that were found to have undermined credibility may be noted in the following cases:
Exantus: The Applicant was often not spontaneous with his answers and the Board member sometimes repeated questions several times before obtaining a direct response from the Applicant.
Radics: The Principal Applicant was found to be “very reluctant” in his testimony regarding the events he had experienced, to the point that the Principal Applicant had to be asked the same question three times before he gave an answer, an answer which the RPD ultimately found not to be credible.
Abbas: “The review of the written transcript of Mr. Sheikh's testimony [...] does reveal the manner of the testimony, which the RPD found to be vague, evasive and unresponsive to direct questions, many of which were repeated and clarified.”
Kao: The RPD found that Mr. Kao's behaviour, combined with his inability to readily answer other questions, suggested he had memorized his BOC narrative and was simply reiterating its content. The applicant recited the narrative from his Basis of Claim [BOC] form despite the RPD interjecting a number of times, urging him to answer the questions asked.
Li: On the matter of the raid on the home church, a notable and life-altering event, the applicant offered testimony that was vague and appeared rehearsed because when asked for details, she repeated basic information and was not able to elaborate with simple specifics about what happened, even though the RPD member had offered Ms. Li ample opportunity to describe and explain what happened, allowed Ms. Li to calm her nerves, and asked her clear and open-ended questions.
However, a witness's demeanour is not an infallible indicator of whether a person is telling the truth or is credible. A great deal of restraint must be exercised before basing a negative credibility finding on a claimant's demeanour. For instance, an individual's personality traits and cultural background may create a false impression of the witness. In
Tkachuk, where the Board drew negative inferences from the claimant's confident delivery and his answers which sometimes provided more detail than the question required, the Court noted:
… Although the applicant's demeanour was not the only basis for the adverse credibility findings, it appears to have been a significant factor and begs the question of how an applicant is expected to provide answers. It appears that if an applicant is hesitant and vague, inferences may be drawn, but if they are confident and explicit, inferences may also be drawn. Although the Court should not second guess the Board's comments or findings about demeanour, given that the Board observed the applicant and the Court did not, in the present case, the Board's findings do not logically flow from its observations of the applicant's demeanour or from his testimony on the record. In addition,
the Board did not appear to take into account that the applicant was a senior police officer and his confidence may be due to his experience and his profession.Footnote 224 [emphasis added]
There could be many reasons why a claimant may not be as emotional as the Board would expect, including cultural differences, translation issues or a stoic personality.Footnote 225 A claimant's psychological state arising out of traumatic past experiences may have an impact on his or her ability to testify.Footnote 226 Where the RPD has found the claimant to not be credible, the failure to address such factors in its reasons could be a reviewable error.
It is only in an exceptional case that demeanour alone would be sufficient to undermine the credibility of the testimony provided in support of the claim. In general, a questionable demeanour is accompanied by other indicators that point to a lack of credibility. As a general rule, courts have attempted to reduce the role of demeanour in the final assessment of credibility.Footnote 227
Assessments of credibility based on demeanour may be subject to scrutiny on judicial review. Accordingly, clear and cogent reasons must be given for such findings.Footnote 228
2.2.8 Delay in claiming refugee protection and other inconsistent behaviours
A delay in claiming refugee protection is not an automatic bar to making a refugee protection claim. Refugee protection claimants are not obliged under the
Convention Relating to the Status of Refugees to seek asylum in the first country in which they arrive after fleeing, or in the country nearest to their home country.Footnote 229
Nonetheless, the Federal Court of Appeal has held that a delay in claiming refugee status is a relevant and potentially important factor that the Board is entitled to consider in weighing a claim for refugee status.Footnote 230
A claimant who is genuinely fearful of persecution or harm as set out in
s. 97 of the
IRPA is generally expected to seek protection at the first opportunity.Footnote 231 As a result, a delay in claiming refugee protection may be inconsistent with an alleged subjective fear, an essential element of a claim under s. 96. Similarly, in claims made under s. 97(1), where the risk is assessed objectively without consideration of the subjective element of the fear, the Federal Court has held that a delay may be one of the factors to consider when determining a claimant's credibility.Footnote 232
That being said, the Court of Appeal has stated that the credibility of a claimant's fear cannot be rebutted solely on the basis that the claim for refugee status was late in coming.Footnote 233 In
Huerta, Justice Létourneau writes, “The delay in making a claim to refugee status is not a decisive factor in itself. It is, however, a relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant.”Footnote 234
In a series of decisions, certain Federal Court judges have taken the view that the decision in
Huerta sets out a general principle and that, although the presence of a delay does not mandate the rejection of a claim as the claimant may have a satisfactory explanation for the delay, a delay may nonetheless, in the right circumstances, constitute sufficient grounds upon which to reject a refugee protection claim. That decision will ultimately depend on the facts of each claim.Footnote 235
The following Federal Court decisions, among others, have upheld RPD decisions rejecting claims under both sections 96 and 97 of the IRPA because of inordinate delays in claiming refugee protection or a return to the country of alleged persecution that, in the RPD's view, reflected a lack of subjective fear or a lack of credibility:
DuarteFootnote 236 The applicant's return to Cuba after arriving in Canada following her first arrest and her delay in claiming refugee status in Canada were cited as actions inconsistent with her assertion that she had a subjective fear of persecution. The RPD did not accept her explanation of having to return to Cuba to transfer her home to her mother as consistent with a credible subjective fear of persecution.
EspinosaFootnote 237 Considering the applicant's alleged fear of imprisonment, torture and death in Mexico because of his sexual orientation, the CRDD considered the applicant's 14-month delay in claiming refugee status to be inexplicable. While the applicant was granted admission as a visitor for the first six months and may not have felt a pressing need to make a claim for refugee status during this time, he was unable to explain his later delay. The Court agreed with the CRDD when it stated that the importance one gives to a delay depends on the circumstances of each case and that the more inexplicable the delay, the greater the probability that subjective fear is lacking. The Court accepted that it was not unreasonable for the CRDD to conclude, based on the evidence before it, that the applicant's inaction following his arrival in Canada demonstrated that he had no fear of serious harm in Mexico and that there was therefore “no subjective basis” to his claim.
Pina GaeteFootnote 238 The refugee protection claim was based on the risk that a gang of drug traffickers would kill the family or cause them serious harm. According to the Court, the Board was justified in concluding that the male applicant's substantial delay (three years) in making a refugee protection claim
undermined his allegation that he and his family would face serious harm in Chile if they were to return. [emphasis added]
LicaoFootnote 239 The Board did not accept that a family who had left the Philippines because they feared for their lives as they described would take the chance that their visitor visas would not be renewed on four occasions, prior to seeking refugee status.
That is, their conduct was inconsistent with that of persons exposed to the risk, experience and the fear that they alleged in the Philippines. [emphasis added]
PaulFootnote 240 The applicant was in Canada for nearly four years before he claimed refugee protection. He had a valid work visa for the first year, but he had felt no need to regularize his status before his visa expired. The RPD made negative findings with regard to the applicant's credibility based specifically on the applicant's behaviour. A claimant's failure to regularize their status as soon as possible, though not decisive in and of itself, remains a relevant element.
In a recent decision,Footnote 241 the Federal Court states that, to assess the significance of a delay in claiming refugee protection, three key factual questions must be answered. First, according to the claimant, when did their subjective fear of persecution crystalize? Second, when did the claimant first have an opportunity to make a refugee claim? And third, why, according to the claimant, did they not take up that opportunity? It is only unexplained delay after the fear has crystalized and after it was possible to seek protection that can reasonably support an inference that the claim of subjective fear should not be believed because of the delay in seeking protection.
The length of the delay must be determined with regard to the time of inception of the claimant's fear as determined from the claimant's personal narrative.Footnote 242 For
sur place claims, the date as of which the person became aware that they would allegedly face persecution or be subjected to a risk described in subsection 97(1) on return to their country of nationality is the relevant date, not the date on which they arrived in Canada.Footnote 243
When a claim is based on a number of discriminatory or harassing incidents that culminate in an event which forces a person to leave his country, then the issue of delay cannot be used as a significant factor to doubt that person's subjective fear of persecution. Cumulative acts which may amount to persecution will take time to occur. If a person's claim is actually based on several incidents which occur over time, the cumulative effects of which may amount to persecution, then looking to the beginning of such discriminatory or harassing treatment and comparing that to the date on which a person leaves the country to justify rejection of the claim on the basis of delay undermines the very idea of cumulative persecution.Footnote 244
The RPD must inquire into and examine the claimant's specific circumstances giving rise to the delay in order to determine whether or not the delay can be said to be indicative of a lack of fear. For example, the SOGIE Guideline stresses that the same factors, such as cultural or psychological barriers, that may reasonably explain the inconsistencies or omissions in a claimant's account can also have a direct bearing on the significance of a delay in claiming refugee protection.Footnote 245 The RPD should also bear in mind the special circumstances and pressures which refugees may face, such as a psychological condition, the vulnerable circumstances of abused womenFootnote 246 or the claimant's age.Footnote 247
In other circumstances, failure to claim refugee protection without delay was not considered reasonably explained. In
Dahal,Footnote 248 for example, the Court considered it reasonable for the RAD to concur with the RPD's decision, in which the latter drew a negative inference regarding Mr. Dahal's credibility and concluded that his two-year delay in claiming refugee protection in Canada demonstrated a lack of subjective fear on his part. The RPD concluded that his explanation that he did not know much about the refugee process was not reasonable given his level of education, his demonstrated ability to obtain work permits in two countries and discussions that he had had with various persons regarding how he could remain in Canada.
Decision-makers must clearly express and provide reasons for their findings as to the credibility of a claimant's explanation in relation to his behaviour.Footnote 249
The following acts and omissions, considered individually or, more often, together with other inconsistent behaviours, may lead to a finding of a lack of subjective fear and credibility, but only if the claimant does not provide reasonable explanations:
Failure to flee one’s country of origin at the first opportunityafter serious threats or incidents indicating the intention to do harm to the applicant.Footnote 250
Enyinnayaeke: The Court was of the opinion that it was reasonable for the RAD to find it improbable that the applicant would wait seven years without finding a means to leave Nigeria if he had a true subjective fear.
Osinowo: The RPD and RAD concluded that it made little sense for the applicant to hide in Nigeria for two months hoping that a Canadian visa would be issued to him shortly after having been denied one, when he had a valid multiple-entry UK visa and had travelled to the UK previously. These findings were, in the Court’s view, open to the RPD even if other decision-makers might have decided otherwise.
Gebremichael: The applicants remained in hiding in their country for a month despite having obtained visas for the United States. The Board drew an adverse inference concerning their subjective fear, a conclusion which the Court upheld as reasonable and clearly explained. It is interesting to note, however, that as a preface to its analysis of the issue, the Court wrote that
delay in fleeing a country may normally be justified if the claimant was in hiding at that time. [emphasis added]
Failure to go into hiding immediately after learning that one may be in danger or to take precautions or modify one's routine.Footnote 251
In the following cases, the RPD's concerns were confirmed:
Abolupe: The RAD reasonably found that it was incoherent and implausible that the applicant, who claimed he was in hiding from the police who were searching for him because he had been identified as a member of the LGBTIQ community, would continue to go to the same job at the bank that he had held for the prior 12 years for another 5 months until he fled Nigeria.
Tang: It was reasonable to say that if the applicant believed she required international protection, she would have taken minimal steps, for example finding a different apartment or leaving the city, before fleeing to Canada.
Noël: The applicant was kidnapped, but one of the abductors released her after learning that his cohorts had decided to kill her. She returned directly to her home, the first place where her ex-spouse, the agent of harm, would look for her, and stayed there from June 8 to June 22, 2016. She sought to justify her behaviour by stating that she was sure that her ex‑spouse would find her anywhere in Haiti and that, at any rate, she had to be at home in Port-au-Prince to retrieve her passport at the Canadian embassy, which she did the day after she returned. The Court was of the opinion that it was reasonable for the RAD to conclude that the applicant's behaviour was inconsistent with a genuine fear of being mistreated.
Fernando: The Court found that the refugee protection claimant's two-month delay in leaving Mexico was not an unreasonable amount of time in the circumstances, since he explained that he kept himself sequestered.
Guarin Caicedo: The refugee protection claimant delayed her departure from the country after she received the first threat, even though she already had a visa to enter the United States. Justice Near did not consider the delay in leaving Colombia to be so unreasonable as to lead to finding that she was not credible, especially considering all that she did to remain sequestered:
…taking six weeks to arrange to permanently leave your family, home and country while experiencing escalating threats does not seem to me to be unduly unreasonable. Especially when we consider that the PA did take other reasonable steps in line with the threat similar to sequestration—she stopped doing volunteer work, going to the party office, changed her telephone number and fled as soon as she decided that was her only option.
Failure to claim Convention refugee status in a country signatory to the
Convention relating to the Status of Refugees where the claimant resided or sojourned or through which the claimant travelled before coming to Canada.Footnote 252
Rana: The RPD found that the applicant's failure to claim protection while living and working illegally in the United States for 19 months was inconsistent with the conduct expected of someone who feared for his life. The Court was of the opinion that the RPD's decision was reasonable.
Gaprindashvili: The RPD considered the applicant's lengthy stay (15 months) in France prior to coming to Canada and did not accept the applicant's explanation that he was waiting for papers prior to leaving. Given the length of the stopover and the fact that France is a signatory to the Geneva Convention, the panel concluded that it was not unreasonable to expect that the applicant would have sought protection in France. The Court found that the RPD committed no reviewable error in its consideration of this issue and that its finding was not determinative of its refusal of his claim.
Mirzaee: The Court writes, “Ms. Mirzaee provided no reasonable explanation for not seeking asylum in the US. To the contrary, the evidence illustrates that it was a well-calculated assessment on her part, as she in fact measured the pros and cons of the various possible options before opting for making her refugee claim in Canada. Her behaviour has all the attributes of asylum shopping. It was therefore entirely reasonable for the RPD to conclude that, in the circumstances, this was not compatible with a subjective fear of persecution. It is well recognized that a failure to claim refugee protection at the first reasonable opportunity to do so, or a return to the country of persecution, are factors undermining a refugee claimant's credibility with respect to a subjective fear.”
The following reasons are most frequently cited for failure to claim asylum in third countries:
Legal status in the third country – Jurisprudence exists suggesting that when the claimant has legal status in the third country and is consequently not at risk of being removed, it is not reasonable to draw a negative inference from failure to claim asylum in that country. See, for example,
With respect to the Applicants' decision to travel through the US to Canada before claiming asylum, the RPD concluded that the Applicants' explanation that they did not have relatives in the US (as they do in Canada) was not reasonable. Considering that the Applicants were in the US legally on a valid visa (and therefore not in imminent danger of being deported), it is my view that the RPD's expectation that persons who are genuinely at risk would necessarily seek asylum at the first opportunity is unreasonable in that it is not adequately justified, transparent and intelligible. I do not understand why the RPD was not satisfied that people in the position that the Applicants alleged they were in might want to come to Canada to seek asylum.
The intention to come to Canada (stopover) – The Court has held in multiple decisions that a short stopover was inconsequential or that the claimant had provided plausible and uncontradicted explanations for not seeking to remain or claim refugee status in various countries en route to Canada. In
Nel,Footnote 254 for example, in which the applicants spent approximately seven hours in an airport in the United Kingdom while waiting for a flight to Canada, the Court held that the RPD had erred in seizing upon this brief layover to conclude that they must have lacked any subjective fear. The Court observed that it is unsurprising that someone who actually fears persecution would want to go to a country where their claim has the best chance of success.
Whether they have family members in Canada – Failure to make a refugee protection claim in a transit country because the claimant would rather make the claim in Canada because they have family here may be a valid reason for not making the claim at the first opportunity.Footnote 255
However, having a relative in Canada does not always constitute a reasonable excuse for failing to claim protection elsewhere. Failing to claim refugee protection before arriving in Canada is a legitimate factor that the Board may consider in evaluating the subjective aspects of a claim, but this factor is to be evaluated in light of any other relevant factors. In
Ndambi,Footnote 256 for example, the Court was of the view that the RPD had ample proof to conclude that the subjective fear was not present. The fact that the applicant chose to wait more than two weeks to leave his country after the visas for the United States and Belgium were issued and that he did not claim refugee protection after arriving in the United States seem to be solid reasons for the RPD to conclude as it did. His choice to come to Canada because his nephew lived here was more of a choice that was made consciously for immigration purposes than a decision to seek refuge wherever he could.
Ignorance of the process – The credibility of this explanation is questioned in cases where the claimant has shown resourcefulness in navigating other immigration procedures or other family members have previously claimed refugee protection. In
Perez,Footnote 257 for example, the Court upheld the Board's determination that the applicant, who waited five years in the United States before claiming refugee protection in Canada, did not provide convincing evidence of his subjective fear. His testimony that he was unaware he could claim asylum in the United States was considered implausible considering his multiple application attempts under another program in the United States offering temporary protection.
Idahosa,Footnote 258 the credibility of the primary applicant's statements concerning her knowledge of refugee law and policy in the United States was undermined by her explanation regarding her decision to come to Canada. She testified that as an “intellectual individual” and “highly educated woman who speaks English fluently,” she was concerned about upcoming changes in American refugee policies.
Pena,Footnote 259 the Court found that the applicant's failure to claim in the United States for two and a half years when she was subject to deportation meant that she did not have subjective fear, considering that the applicant was well-travelled and her family members had experience in securing the advice needed to make refugee claims.
Little hope of successFootnote 260 – In
Gurusamy, the RPD concluded that the applicant did not have a subjective fear because he had not sought protection in the United States. The applicant's explanation was that he had been told by friends who had previously been employed at the Sri Lankan embassy that if he did so, he would be deported back to Sri Lanka and that it would be unreasonable to expect him to approach a foreign government when he believed it to be futile. The RPD did not accept or evaluate this explanation. The Court considered it unreasonable for the RPD to hold the applicant's transit through the United States against him, stating, “No one in their right mind would seek protection in a country that will not, or which they believe will not, protect them.”
Pelaez, the applicant explained that he did not claim asylum in the United States because he wanted only to temporarily flee his country so that he would be forgotten. He also maintained that a claim for asylum would have been illusory in the United States anyway, since legislation in that country does not recognize risks arising from crime, as was the case in Canada before section 97 was introduced in the Act. The Court held that these explanations warranted at least being considered by the panel.
Nel, the RPD considered that failure to claim protection during a brief layover in transit to Canada was reason enough to conclude that there was a lack of subjective fear. The applicants explained that they had decided to claim protection in Canada because they had heard about another white South African whose claim had been successful here. The Court acknowledged that forum shopping could be relevant to public policy but considered that the applicants' explanation was not incompatible with a subjective fear of persecution. As the Court observed:
On the contrary, it is unsurprising that someone who actually fears persecution would want to go to a country where their claim has the best chance of success, since the price of failure is a return to the persecution they fear.
The unjustified rejection of the explanation made the RPD's finding non-transparent.
Failure to await the outcome of a claim made in a country before coming to Canada.Footnote 261
Bains: The refugee protection claimant from India had applied for asylum in England. After waiting for five or six years, still without an answer, he left the country because he had heard that the British authorities were deporting asylum seekers awaiting status. The Court noted that the British authorities had clearly told the applicant he would not be deported before a decision on his status had been made. The Court ruled that it was reasonable for the CRDD to conclude that his decision to leave England indicated that the applicant did not have a subjective fear.
Murugathas: The Board was entitled to consider the significance of the fact that the applicant had failed to pursue his claim in the United States, especially since he had already passed the preliminary credible fear interview. While Mr. Murugathas may have had reasons to prefer living in Canada, the Board's conclusion that his conduct showed a lack of subjective fear of returning to Sri Lanka was not unreasonable.
El Atrash: In this case, the Court held that the RPD's approach to the applicant's abandonment of his refugee claim in the United States was unreasonable. The Libyan applicant had applied for asylum in 2015 but abandoned his claim before a hearing was held and came to Canada in March 2017. According to the Court:
While it was true that his claim would not have been terminated by the government's introduction of a policy to refuse entry to people from a number of countries including Libya, it is reasonable to accept the Applicant's explanation that, in that political climate, he believed that his refugee claim would not be fairly considered.
Kassab: The RPD was of the view that the applicant had failed to credibly establish the subjective element of his fear because he had abandoned his claim for asylum in the United States. In its decision, the RPD noted that the applicant had declared a fear based on the prevailing climate of islamophobia and on policies specifically targeting Muslims in the United States. The applicant stated that this was one of the factors he had taken into consideration when he decided to flee the United States, not wishing to wait for an outcome he believed to be inevitable. The RPD did not explain why it decided to overlook this basis of fear. The Court considered that such an omission was unreasonable and stated that the fact that the applicant had not completed the asylum process in the United States did not justify the incomplete analysis of the file.
Returning voluntarily to one's country of origin,Footnote 262 after obtaining or renewing a passport or travel document,Footnote 263 or leaving or emigrating through lawful channels.Footnote 264 However, although returning to one's country, renewing a passport or leaving the country through lawful channels may point to a lack of credibility with regard to the existence of a risk or subjective fear, none of these behaviours is determinative. The Court has set aside decisions in which the Board failed to consider all of the circumstances or disregarded a claimant's reasonable explanations for acting in a manner that, on its face, appeared inconsistent with a subjective fear.
For example, the Court has found it unreasonable to conclude that there is a lack of subjective fear in cases where someone returns to their country temporarily but remains in hiding or far removed from their agents of harm.Footnote 265
The RAD's determination in
AsriFootnote 266 is another example of what the Court considers an unreasonable error. The applicant testified that he had travelled to Azerbaijan and back to provide biometrics at the Canadian consulate for his visa application. The RAD was of the view that his returning to Iran contradicted his alleged fear, and it asserted, without explanation, that the applicant could have come to Canada from Azerbaijan. According to the Court, there was no evidence showing that the Iranian applicant could have continued on to Canada from Azerbaijan without returning to Iran.
A majority of decisions concerning claimants who apply for and obtain official documents, such as passports, from a country in which they allege they face a risk of persecution or other serious harm are analyzed in terms of subjective fear and credibility,Footnote 267 particularly if the agent of persecution or harm they allegedly fear has connections with the government.
Chandrakumar,Footnote 268 the CRDD ruled that the principal applicant's act of renewing his Sri Lankan passport in Germany indicated that he had re-availed himself of the protection of Sri Lanka. In the Court's view, this conclusion was unreasonable. The CRDD erred in assuming that the simple action of renewing the passport from outside of his country of nationality, without more, was sufficient to establish re-availment of the protection of his country. The CRDD did not engage in an analysis of the principal applicant's intentionFootnote 269 in renewing his passport.
CamayoFootnote 270 addresses the use, rather than the acquisition, of a passport, but serves as a warning with regard to assessing a person's intention to re-avail themselves of the protection of their country. The Court concluded that interpreting her use of her passport in itself as satisfying all three essential and conjunctive elements of availment (voluntary, intentional, and actual availment) left no room for Ms. Camayo to demonstrate that despite her acquiring and using her passport, she did not intend to avail herself of state protection.
Delay in making a refugee claim in Canada. The Federal Court of Appeal established the basic principle in
Huerta,Footnote 271 in which it stated the following:
The delay in making a claim to refugee status is not a decisive factor in itself. It is, however, a relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant.
However, a claim may have merit even though it was not made at the first opportunity. Genuine refugees may well wait until they are safely in the country before making a claim and cannot be expected, in every case, to claim refugee protection at the port of entry.
Asri,Footnote 272 for example, the RAD drew a negative inference with respect to the credibility of the appellant's allegations and his subjective fear because it took him seven months to file his claim for refugee protection. He explained that once he was safe in Canada on a visitor visa, he followed the advice of the agent who had assisted him and who instructed him that he would contact him and advise him on the next step he should take to permanently legalize his status. In the Court's view, there was nothing inherently implausible about this explanation. The applicant was a nervous newcomer to Canada who was unaware of how to make a refugee protection claim. Why wouldn't the applicant wait to hear from an agent who has earned his trust by getting him safely out of Iran and into Canada? The applicant was safe in Canada on a visitor visa. He eventually contacted a lawyer because he did not hear from the agent as promised to advise him on the next step he should take to permanently legalize his status in Canada.
Having legal status in Canada is one reason often cited by claimants to explain why they did not claim refugee protection upon arriving in Canada.
Gyawali,Footnote 273 for example, the applicant had fled Nepal due to fear of persecution but arrived in Canada with a valid student visa and applied for permanent residence. It was not until he lost his financial support from his family that he feared having to return there and claimed refugee protection. The RPD concluded that the 17-month delay between his arrival in Canada and his claim for refugee status was not consistent with a genuine subjective fear of persecution and affected his overall credibility. The applicant submitted that he had no obligation to file a refugee protection claim at any earlier time because from the time he arrived in Canada until the time he filed his claim, he had enjoyed a valid temporary status and was not in a position where he might be forced to go back to Nepal. The Court agreed with him, ruling that in the circumstances,
his failure to apply for refugee status immediately upon arrival could not be the sole basis for the RPD's questioning the claimant's credibility. [emphasis added]
Genuine refugees may not know they have the right to claim refugee status and may be in the country for some time before they become aware of the Canadian refugee determination procedure, as was the case in
Velasco Chavarro.Footnote 274
The delay may be a result of the fact that the person concerned tried to obtain the right to stay in the country through other means.Footnote 275 Thus, the fact that the claimant did not file their claim until after their temporary status expired or after they consulted a lawyer is not relevant to Criminal and fraudulent credibility.Footnote 276
2.2.9 Criminal and fraudulent activities in Canada
FouladiFootnote 277 and other decisions,Footnote 278 the Federal Court ruled that an offence committed in Canada that involved deceit can be taken into account in assessing a claimant's credibility.
However, in another case,Footnote 279 the Federal Court described as “questionable” the panel's negative finding as to the claimant's subjective fear of persecution based on his criminal behaviour in Canada. The CRDD concluded that Mr. Tvauri lacked a fear of returning to Georgia if he took the risk of breaking the law in Canada by stealing a bicycle. In the Court's view, the CRDD's inference shows the great danger of placing undue reliance on prejudicial evidence with little probative value.
According to the Federal Court, it is justified to conclude that multiple applications for Convention refugee status under multiple different names is sufficient for reaching a negative assessment of the claimants' overall credibility.Footnote 280
2.3 Relying on trustworthy evidence to make adverse credibility findings
2.3.1 Trustworthy evidence on which to base findings
The Federal Court has emphasized that adverse credibility findings must be supported by trustworthy evidence. The courts have given the terms “credible” and “trustworthy” the same meaningFootnote 281 for the credibility of evidence.Footnote 282 Credibility encompasses both truthfulness (i.e. the honesty of a witness) and reliability (i.e. the issue of whether, supposing the witness is honest, the evidence is an accurate account of the material facts).Footnote 283
When part of the testimony raises questions, the decision-maker must have credible evidence to the contraryFootnote 284 or find this part of the testimony incoherent or inherently suspect or improbable,Footnote 285 if it is to be rejected.
To determine whether the evidence that contradicts the claimant's testimony is trustworthy, the decision-maker must consider the source of the information, the objective of the person in providing it and the methods used to obtain it. In addition, the decision-maker must determine the weight or probative value to be given to this contradictory evidence.Footnote 286
2.3.2 Presumption of truthfulness
Maldonado,Footnote 287 the Court of Appeal established an important principle, that when a claimant swears that certain facts are true, this creates a presumption that they are true, unless there is valid reason to doubt their truthfulness.
Therefore, this presumption of truth is not unchallengeable, and the claimant's lack of credibility may suffice to rebut it.Footnote 288
Even if the Board does not find the claimant lacks credibility, it is not required to accept everything a claimant says as established fact. The
Maldonado presumption is simply that a sworn witness is telling the truth. It is not a presumption that everything the witness believes to be true, but has no direct knowledge of, is actually true.Footnote 289
As the Federal Court pointed out in
Hernandez,this presumption does not extend to the inferences that the claimant draws from the facts that he or she testifies to: “... the presumption of truth that applies to the facts recounted by the [claimant] does not apply to the
deductions made from those facts.”Footnote 290 [emphasis added]
Consequently, the Board is entitled to reject the inferences drawn by the claimant, especially if they are speculative in nature. For example, in
Rahman,Footnote 291 the RAD did not impugn the credibility of the claimants as to the reality of the kidnapping, nor as regards any evidence put forward by the claimants as to the identity of the kidnappers. However, the claimants' conclusion that their kidnappers were members of the police or security forces was mere conjecture on the part of the claimants.
In the same decision, the Court explains that the
Maldonado presumption pertains to credibility (i.e. truthfulness), and not probative value. It is for that reason that courts may believe the truthfulness of the claimant's claims or testimony yet determine that the claimant failed to provide
sufficient evidence to support the inferences he or she seeks to draw from the evidence.Footnote 292
Also on the topic of speculation, if a panel asks the claimant questions for which the claimant could not be expected to know the answers (for example, why the authorities acted in a particular way), the claimant should not be penalized for speculating or providing hearsay information by way of a response.Footnote 293
2.3.3 Corroborating evidence
Luo the Court notes:
[I]t is beyond dispute that the onus is always on the claimant to prove his or her refugee claim.[…] This is also reflected in
Rule 11 of the
Refugee Protection Division Rules, SOR/2112-256, which states that claimants must provide acceptable documents establishing their identity and other elements of their claims and, if they do not, they must explain why the documents were not provided and what steps they took to obtain them.Footnote 294
However, there is no general requirement for a claimant to provide corroborating documents.Footnote 295 This is because a refugee may have been forced to flee their home on little or no notice, taking little or nothing with them, and such circumstances of flight render it impossible or unreasonable to expect them to provide supporting documentary evidence.
This absence of a general requirement for corroboration is also considered a corollary of the presumption of truthfulness set out in
Maldonado. Requiring corroboration in the absence of a pre‑existing “reason to doubt” would effectively reverse the presumption.Footnote 296 Consequently, it has been held that it is an error to make an adverse credibility finding
solely on the basis of the absence of corroborating evidence.Footnote 297
Khamdamov, the Court explains how consideration of the absence of corroboration as the reason for doubting the credibility of a claim can result in a circular analysis:
By applying the decision in
Maldonado, in order for the RAD to require corroborative evidence from the Applicant to substantiate the Applicant's claim, it was first necessary for the RAD to find reasons to doubt the truthfulness of the Applicant's sworn testimony. I find that the cardinal error in the RAD's decision is the failure to follow this straight‑forward point of law. Instead of clearly identifying an evidentiary reason to rebut the presumption that the Applicant was telling the truth in the giving of his evidence, the RAD engaged corroboration in an erroneous circular analysis. That is, the fact that the Applicant did not file corroborating documentary evidence in support of his claim was found by the RAD as a reason to disbelieve his sworn evidence, and, thus, upon disbelieving his sworn evidence, the Applicant was required to provide corroborating evidence to avoid the dismissal of his claim. I find that this error alone renders the RAD's decision unreasonable.Footnote 298
Justice Strickland in
LuoFootnote 299 drew the following principles from the case law:
(1) A claimant's sworn evidence is presumed to be true unless there are reasons to doubt its truthfulness;
(2) It is an error to make an adverse credibility finding solely on the basis of the absence of corroborating evidence;
(3) However, where there is a valid reason to doubt the claimant's credibility, the lack of corroborating evidence, where no reasonable explanation is provided, can be a valid consideration when assessing credibility;
(4) In spite of the principle of truthfulness, an adverse credibility finding may be drawn if the claimant fails to produce evidence that the decision-maker reasonably expects should be available in the claimant's circumstances, and the claimant does not provide a reasonable explanation for failing to produce that evidence.
The third point sums up the line of case law that is consistent with the
Maldonado presumption and that has been followed in a number of important decisions. Based on this line, if there are good reasons to doubt the claimant's credibility, or if the claimant's version of the facts is not plausible, the absence of corroborating evidence can be a valid consideration when assessing the claimant's credibility if the claimant is unable to provide a reasonable explanation for the failure to provide this evidence.
Amarapala, the Court stated:
It is well established that a panel cannot make negative inferences solely from the fact that a refugee claimant failed to produce any extrinsic documents to corroborate a claim. But where there are valid reasons to doubt a claimant's credibility, a failure to provide corroborating documentation is a proper consideration for a panel if the Board does not accept the applicant's explanation for failing to produce that evidence.Footnote 300
Ortega Ayala,Footnote 301 the Court found the RPD's logic “puzzling,” as it gave no reason other than the lack of documentation corroborating the central facts of the narrative to disbelieve the claimant's testimony. Justice Near stated:
This reasoning is out of line with the body of case law of this Court and is unreasonable in that it plants as the seed of incredibility the lack of corroborating documentary evidence instead of using the lack of documentary evidence to buttress an existing adverse credibility finding.
Justice Kane in
Dundar when making the general proposition that the claimant was not required to corroborate her allegations and that it would be an error to make an adverse credibility finding based on the absence of corroborating evidence alone, but then states:
If there is a valid reason to question the claimant's credibility, the Board may draw a negative inference from a failure to provide corroborative evidence that would reasonably be expected. Much depends on the type of evidence at issue and whether it relates to a central aspect of the claim. Corroborative evidence is most valuable when it is independently generated by a neutral source. It may be unreasonable to expect a refugee claimant to generate or collect documentation not already available before fleeing. Furthermore, when the alleged assailant controls the documents at issue, as here, it would be unreasonable to expect an applicant to obtain it.Footnote 302
Ismaili,Footnote 303 the RPD was faced with a record that did not contain any evidence as to the claimant's sexual orientation other than his PIF and his testimony. The Court was of the opinion that
if the RPD had a valid reason to doubt the claimant's credibility, it would not have been unreasonable for it to request corroborating evidence to prove this crucial element of the claim, such as proof of his divorce, as he testified that his divorce resulted from his homosexual relationship. However, the RPD did not specify any reasons for doubting the claimant's credibility. The Court found that the RPD could not base a credibility finding solely on the lack of corroborating evidence, which seemed to be what it did.
On the other hand, in
Pazmandi,Footnote 304 the RAD referred to concerns about Ms. Pazmandi's credibility arising from her evidence regarding incidents of persecution. It also explained why it expected corroborating evidence to be available and why it did not accept Ms. Pazmandi's explanation for not obtaining such evidence.
The fourth point made by Justice Strickland in
LuoFootnote 305 seems to describe the other line of case law, more in line with RPD rule 11 because it recognizes that there is an exception to, or distinction from, the
Maldonado principle of truthfulness. According to that line, a decision-maker may draw an adverse inference regarding a claimant's testimony if he or she fails to produce evidence that the decision-maker reasonably expects should be available in the claimant's circumstances, and if the claimant does not provide a reasonable explanation for failing to produce that evidence.
This line of case law, like the one described previously, does not require the existence of an independent and pre-existing credibility issue in order to consider the absence of corroborating evidence. The
lack of a reasonable explanation for not providing evidence that is available in itself constitutes a credibility issue.Footnote 306
Murugesu,Footnote 307 where RAD shared the conclusion of the RPD that there was insufficient credible and reliable proof to corroborate the alleged sexual orientation of Ms. Murugesu, it appears that the Court followed this line:
 … this Court has recognized an exception to the
Maldonado principle. The Board may draw a negative inference regarding a claimant's testimony if she fails to produce evidence that the Board reasonably expects should be available in the claimant's circumstances, and does not provide a reasonable explanation for failing to produce that evidence (Radics v Canada (Minister of Citizenship and Immigration),
2014 FC 110 at paras
 In this case, it was open to the RAD to draw a negative inference from Ms. Murugesu's inability to provide supporting documentation with respect to a central aspect of her claim, as required by
Rule 11 of the
Refugee Protection Division Rules, SOR/2012-256.
Rule 11 states that claimants who do not provide acceptable documentation must explain why they have not done so, and what steps they have taken to obtain them. Whether it is reasonable to require corroborating evidence depends on the facts of the case (Dayebga v Canada (Minister of Citizenship and Immigration),
2013 FC 842, at para.
Rojas,Footnote 308 the Court allowed the application for judicial review in which the RPD found that the claimants were not credible, in part because of the “utter lack of corroborating documents,” without specifying what corroborating evidence was missing. Also, it did not ask for an explanation as to explain why certain documents that it might have considered to be corroborative were not produced.The RPD should have specified the nature of the documentation it expected and made a finding to that effect.
Radics,Footnote 309 the Court was of the opinion that the RPD did not make an error in finding that the lack of corroborating evidence undermined the applicants' credibility. Its credibility findings were not based “solely” on the applicants' failure to produce documents, but also on their testimony. The RPD rejected the applicants' explanation for failing to produce the evidence on a central element of their claims which it found could reasonably be expected to be available.
In a recent decision of the Court,Footnote 310 Justice Grammond recognized the existence of these two lines of case law, as well as the importance of their respective purposes of granting fair consideration to those who claim persecution and, at the same time, maintaining the integrity of the Canadian refugee protection system. The judge was of the opinion that these two goals could be achieved by broadening the categories of cases in which corroboration may be required, while implementing appropriate safeguards. According to this procedure, a decision‑maker can only require corroborating evidence in the following cases:
(1) The decision-maker clearly sets out an independent reason for requiring corroboration, such as doubts regarding the applicant's credibility, implausibility of the applicant's testimony or the fact that a large portion of the claim is based on hearsay;
(2) The evidence could reasonably be expected to be available and, after being given an opportunity to do so, the applicant failed to provide a reasonable explanation for not obtaining it.
With regard to the availability of corroborating evidence, it is interesting to note the general observation of the Court in
Ramos Aguilar,Footnote 311 where it states that technology has changed the situation in terms of the availability and accessibility of information from countries of origin: “Technology has greatly facilitated the availability of corroborative evidence in comparison with the circumstances in 1980 when the Maldonado decision was issued.”
The answer to the question of whether corroborating evidence can reasonably be required depends on the facts of each case.Footnote 312 Without being exhaustive, the following factors or circumstances may influence the claimant's ability to provide corroborating evidence: the claimant's psychological condition, gender considerations,Footnote 313 issues related to sexual orientation,Footnote 314 the claimant's young age, cultural factors and inherent difficulties in the administration of the claimant's country of nationality. For example, on this last factor, the difficulty in obtaining official documents from Somalia has been recognized by the Court in numerous cases. In
Ali, the Court states:
Turning to the issue of identity documentation for the country in question, it is well‑established that government documents in Somalia are virtually unobtainable, such that its refugee claimants must establish their identities through secondary sources.Footnote 315
The same principle applies to other types of documents and to other countries. The burden of providing documentary evidence cannot exceed what can be reasonably expected of the claimant, in light of the conditions in the country from which the claimant should obtain the documents. For example, in
Elamin,Footnote 316 the RPD and the RAD were of the opinion that the authenticity of the document establishing Mr. Elamin's jail sentence was doubtful. When he was asked why he did not have the original document, Mr. Elamin answered that a friend had taken a picture of the document and sent it to him, adding that it was very difficult and dangerous to get access to this document. This was confirmed by the National Documentation Package (NDP), which reveals that Sudan is plagued by serious problems with respect to arbitrary behaviour of the police and security forces, corruption and the lack of an independent judiciary. The RPD did not give any weight to the document because Mr. Elamin had been unable to obtain a certified copy. The RAD acknowledged that it could have been risky to try to obtain a certified copy, but it was of the opinion that the failure to obtain an affidavit from the friend affected the authenticity of the document. The Court was of the opinion that it was unreasonable to expect the friend to sign an affidavit in which he would essentially confess to stealing the document from the Sudanese authorities.
Corroborating evidence is not always documentary. Testimony can also corroborate allegations or substantiate corroborating evidence such as affidavits. According to one line of case law, it is not open to the RPD to make a negative credibility finding based on the claimant's failure to produce a witness.Footnote 317 However, other decisions state that the RDP is entitled to draw an adverse inference against the claimant and refuse to give any weight to a written letter if the witness is at the hearing or could have been, or could have testified on the content of the letter but refuses to or simply fails to.Footnote 318
Regarding witnesses who offer to provide corroborating testimony, there is a risk in refusing to hear this testimony. In
Kaur,Footnote 319 the Federal Court states that if a panel dispenses with the need to call a witness to corroborate the claimant's testimony, it cannot then make an adverse finding of credibility because of a lack of corroboration of that testimony.
2.3.4 Silence of the documentary evidence
The Court of Appeal states as follows in
The “presumption” that a claimant's sworn testimony is true is always rebuttable, and, in appropriate circumstances, may be rebutted by the failure of the documentary evidence to mention what one would normally expect it to mention.
Therefore, the fact that the documentary evidence does not confirm the claimant's testimony, or refer to an event reported by the claimant, may be grounds for rejecting this testimony.Footnote 321
Caution should be exercised, however, especially when the documentary evidence before the panel is silent about a particular matterFootnote 322 or is less than comprehensive.Footnote 323 A document containing general information may not always be sufficient to refute testimony dealing with a specific, individualized event.
It is doubtful that a finding of lack of credibility can be drawn on the basis of documents such as letters that do not corroborate the claimant's story. Generally, such documents cannot be relied on to contradict a claimant's story merely because they do not confirm it.Footnote 324
Documents that corroborate some aspects of a claimant's story cannot be discounted merely because they do not corroborate other aspects of the story or do not provide sufficient detail.Footnote 325
Adeleye, the Court notes that silence does not amount to a contradiction; at most it is simply a lack of corroboration.
The prohibition on discounting evidence for what it does not say arises in the context of the assessment of credibility. It is impermissible to disbelieve one witness's evidence simply because another witness corroborated only part of that evidence and remained silent as to another part…. In such a situation, there is no contradiction affecting credibility. At most, the issue is simply a lack of corroboration. [reference to
Magonza omitted]Footnote 326
No piece of evidence should be dismissed simply because it is a single piece of the
totality of evidence provided.Footnote 327 It is not appropriate to consider such evidence in isolation; rather one must consider the whole of the evidence purposively and contextually.
2.3.5 Lack of identity documents and other personal documents
The Federal Court established the following principles regarding the absence of identity documents and other personal documents.
The onus rests on the claimant to establish their identity on a balance of probabilitiesFootnote 328 and failure to prove identity is fatal to a claim in and of itself. There is no need for the administrative decision-maker to pursue further consideration of the merits of the claim.Footnote 329
Therefore, the claimant must come to the hearing with all of the evidence that they are able to offer and believe is necessary to establish the claim.Footnote 330
“Identity” refers to the personal identity of the refugee protection claimant (name, date of birth) as well as their national identity. The Court has held that although the terms “identity” and “national identity” are often used interchangeably, establishing national identity without having established personal identity is not sufficient in refugee determination proceedings.Footnote 331 Certain documents, such as a passport, make it possible to establish both the national identity and personal identity of a refugee protection claimant.
Where applicable, the claimant should be advised that identity is an issue and that they need to present specific documents and other supporting corroborating evidence.Footnote 332
The panel should take into account in its decision any explanation given by the claimant for why corroborative evidence was not provided and the efforts made to obtain such evidence. The panel should also provide reasons for its decision not to accept the explanations offered by the claimant as being reasonable.Footnote 333
What is “reasonable” (a “reasonable explanation” or “reasonable steps”) will depend on the circumstances of the case. For example, it may be unreasonable to expect a claimant to obtain documents from abroad when the claimant has no control over this processFootnote 334 or due to difficulties inherent in the administration of the claimant's country of citizenship.Footnote 335 It may be unreasonable, or even implausible, for a claimant not to have brought certain documents with them or not to have made efforts to obtain the documents requested by the RPD.Footnote 336 The panel may draw a negative inference where the claimant fails to provide documents that they agreed to provide at the hearing.Footnote 337
The RPD or the RAD, once it has given notice of having specialized knowledge and has given the claimant an opportunity to respond, can rely on its specialized knowledge of the documentation from a particular country or the fact that claimants coming from a particular country normally produce certain documents.Footnote 338
It may or may not be reasonable, depending on the circumstances of the case, for the RPD to conclude that a refugee protection claimant should have obtained identity documents from their country's diplomatic officials in Canada.Footnote 339
The Federal Court of Appeal has held that the fact that a claimant destroyed or disposed of
false travel documents en route to Canada is not a satisfactory basis on which to challenge a claimant's credibility, as this is a peripheral matter of limited value to the determination of general credibility.Footnote 340 However, in other decisions, the Trial Division has held that the Board was correct in attaching importance to this matter.Footnote 341 The destruction of
genuine documents appears to be a relevant considerationFootnote 342 .
Even if the required documents are not provided and the claimant does not offer a satisfactory explanation for not doing so or make reasonable efforts to obtain them, the panel should nevertheless assess the other evidence, particularly if it may corroborate the claimant's story.Footnote 343
A lack of relevant documents may lead to a finding that that the claimant has not discharged the burden of establishing their identity and other elements of the claim. Such a finding is generally made after considering other factors relating to credibility.Footnote 344 Where a claimant's story has been found to be implausible or otherwise lacking in credibility, a lack of documentary corroboration, or a lack of effort to obtain the documentation, can be a valid consideration for the purpose of assessing credibility. The circumstances in which a document is providedFootnote 345 or the fact that the claimant provides documents selectively may be a basis for drawing an adverse credibility finding.Footnote 346
2.3.6 Self-serving evidence
Justice Tremblay Lamer notes in
AhmedFootnote 347 that it is likely that any evidence submitted by a claimant will be beneficial to their case and could thus be characterized as “self-serving.”
Therefore, the Court has repeatedly held that the dismissal of evidence produced by a claimant's family members or other relations on the sole grounds that this evidence is self‑serving is a reviewable error.Footnote 348
However, Justice Annis seems to be of a different opinion in
Pathmaraj.Footnote 349 In
Fadiga, he concludes there is no error in giving reduced weight to the affidavit from the applicant's sister. In more general terms (at paragraph 15), he expresses his opinion that “partiality is usually the nub of the issue in terms of the reliability of evidence from family members.” He agrees with Justice Zinn's observation at paragraph 27 of
FergusonFootnote 350 that “this sort of evidence requires corroboration if it is to have probative value.”
RahmanFootnote 351 emphasizes that even if the question of self-interest has an impact on the assessment of credibility and the weight that the evidence is to be afforded, there are other factors to consider:
Self-interest is not a binary concept. The importance of an author's potential self-interest or bias as against the credibility and weight to be afforded their evidence will vary with such considerations as: the role the author played in the events recounted - were they a witness or did the applicant merely recount the events in question to the author; the relationship of the author to the applicant - is the author a close family member but, as a witness, nonetheless able to speak independently to the events; the content of the witness statement - does it merely parrot the applicant's evidence or does it have a degree of independence based on the author's own vantage point, and what was that vantage point; any inconsistencies between their statements and other objective evidence in the case, etc.
The Federal CourtFootnote 352 points out that in the vast majority of cases, the family and friends of the claimant are the main, if not the only first-hand witnesses of past incidents of persecution. Therefore, if their evidence is presumed to be unreliable from the outset, many real cases of persecution will be hard, if not impossible to prove.
The fact that a claimant asked for the evidence to support their refugee protection claim does not diminish its corroborative value.Footnote 353
2.3.7 Preferring documentary evidence to the claimant’s testimony
The Board is entitled to rely on documentary evidence in preference to the testimony provided by a claimant,Footnote 354 even if it finds the claimant trustworthy and credible.Footnote 355 However, RPD members must provide clear and sufficient reasons for accepting documentary evidence over the testimony of the claimant, especially when it is uncontradicted.Footnote 356
The Federal Court has upheld, in a number of decisions, the Board's reliance on documentary evidence originating from a variety of independent sources, none of which could be said to have any vested interest in the claim at hand (and were, to that extent, free of bias), in preference to the claimant's testimony.Footnote 357
This does not necessarily apply to information obtained from an interested party in response to a particular inquiry, as such evidence does not have the same “circumstantial guarantee of trustworthiness” as documentary evidence prepared by independent agencies that is published and circulated.Footnote 358
2.3.8 Assessing documents
The Board is considered to have the necessary expertise to determine the authenticity of documents.Footnote 359
The Federal Court has held that documents issued by foreign governments are presumed to be authentic unless evidence (external to the document itself) is produced to show otherwise or the Board is able to make a determination based on the contradictory evidence that calls the authenticity of the document into question.Footnote 360
Where the Division is satisfied that one or more of a claimant's identity documents have been fraudulently obtained or are otherwise inauthentic, the presumption that the claimant's remaining identity documents are valid can no longer be maintained. Nevertheless, the Division is still required to at least consider or assess the authenticity and probative value of each of those documents, as well as any other supporting documents submitted by the claimant.Footnote 361
Liu,Footnote 362 the Court provides a non-exhaustive list of reasons for concluding, in the absence of a satisfactory explanation, that the presumption of document authenticity has been rebutted:
- Discrepancies on the face of the document that one would not reasonably expect to find on a validly issued public document (e.g. spelling mistakes or formatting flaws);Footnote 363
- Alterations or modifications that appear on the face of the document;Footnote 364
- Inconsistencies with standard templates for the type of document in question;Footnote 365
- Other credible or trustworthy evidence that is inconsistent with the contents of the document in question (e.g. discrepancies between the claimant's testimony and the documentary evidence as to how the claimant obtained the document);Footnote 366
- Doubts about the credibility or trustworthiness of other evidence that says the same thing as the document whose genuineness is in issue (e.g. the testimony of a party, finding that documents produced in support of said document are not genuine).Footnote 367
A finding of inauthenticity may be based on one or more considerations.
Where there is sufficient evidence to cast doubt on a document's authenticity, whether because of an irregularity on its face or the questionable circumstances in which it was obtained or provided, it may be assigned little (or no) weight, without expert verification or where such verification is inconclusive.Footnote 368 This arises from the general principle whereby the RPD does not have an obligation to have identification or other documents reviewed by experts.Footnote 369 That said, it may, and may have to, do so in certain circumstances.Footnote 370
According to the Court, without evidence that specific security features are required, a lack of verifiable security features is not a reasonable basis to rebut the presumption that a foreign-issued document is valid.Footnote 371 It is also to be noted that the Court has previously held that official stamps do constitute security features for the purposes of evaluating authenticity.Footnote 372
Evidence of widespread availability of fraudulent documents in a country is not, by itself, sufficient to reject foreign documents as forgeries,Footnote 373 but may be relevant if there are other reasons to question the documents or a claimant's credibility.Footnote 374
Lastly, if a panel is not satisfied as to the authenticity of a document, then it should state so explicitly, provide grounds and give the document no weight whatsoever. Decision-makers should not cast doubt on the authenticity of a document, and then endeavour to hedge their bets by giving the document “little weight.”Footnote 375
Where there is conflicting evidence, the RPD is entitled to choose the documentary evidence that it prefers, provided that it addresses the contradictory documents and explains its preference for the evidence on which it relies.Footnote 376
A claimant's overall lack of credibility may affect the weight given to documentary evidence (including medical evidence) and, in appropriate circumstances, may allow the Board to discount that evidence, unless there is independent and credible documentary evidence in the record capable of supporting a positive disposition of the claim.Footnote 377 Conversely, submitting a false or irregular document may have an impact on the weight assigned to other documents provided by the claimant (especially when they are interrelated) and on the overall credibility of a claimantFootnote 378 or the sufficiency of the evidence as a whole. Not every discrepancy in a document, however, will necessarily be material to the success of a claim.Footnote 379
It is unreasonable to draw a negative credibility inference stemming from the use of fraudulent or irregularly obtained documents when their use was necessary to escape persecution.Footnote 380
2.3.9 Medical and psychological reports
By its nature, an expert's testimony or report is an opinion based on facts reported to the expert by the claimant.Footnote 381 Experts are not usually, if ever, eyewitnesses to the experiences that led a person to claim refugee protection. Medical or psychological reports are sometimes presented to corroborate the claimant's allegations,Footnote 282 but psychological reports are primarily submitted to explain how the claimant's health conditions could influence their behaviour or ability to testify.Footnote 383 These factors must be taken into account.
An expert does not necessarily have to be a medical doctor, psychiatrist or psychologist to provide an opinion on a claimant's condition.Footnote 384 However, the RPD must be certain that the so-called expert submitting the evidence is qualified to do so and that their “opinion testimony” pertains to their particular area or areas of expertise. “Opinion evidence” that is beyond the scope of a witness's expertise may be given little, if any, weight.Footnote 385
It is not for a medical expert to assess and determine a claimant's credibility; that is the function of the RPD.Footnote 386 Consequently, the RPD is not required to defer to the opinion of the report's author, particularly as it concerns the claimant's credibility, which the panel must assess independently.
The author must provide only their expert opinion and not cross over into advocating for the claimant.Footnote 387 The question of determining whether the RAD erred in giving little weight to the psychologist's report was analyzed by Justice Brown in
Asif.Footnote 388 He examined the reasons why the RAD gave little weight to the report, and then commented on each reason:
It crossed the line separating expert opinion from advocacy. In my view, while it is expected that expert reports will be supportive of the claim made by the person filing them, there is a line between providing a diagnosis and prognosis with appropriate support and open advocacy:
Egbesola [reference omitted]. The determination of which side of the line an expert report falls on comes down to a matter of weighing the evidence and assessing its bearing on the facts at hand. That is a matter for the RAD as part of its duty to assess the evidence. …
It made findings of credibility that should have been reserved for the panel. In my view, credibility findings are well known to lie at the heartland of tribunals such as the RPD and the RAD. While I do not know the practice of the particular expert in issue, it is rare that such reports deal with an applicant's credibility at all, much less delve into the level of detail as was the case here. Not only does this report purport to assess the Applicant's credibility, it goes further and may appear to counsel the trier of fact on how to assess the Applicant's credibility when he appears before it. …
It had not been subjected to any form of validation. In my view, this is not a stand‑alone basis for assigning little weight to the report. If it were so, most, if not all, such reports would be given little weight. Therefore, I conclude this basis of attack is not reasonable.
It reached very serious conclusions regarding the Applicant's psychological health after only one interview. We know the Applicant met the psychologist only once; we do not know for how long. The Court was told this psychologist usually meets with such clients for 2 or 3 hours. With respect, this again involves an assessment of the weight assigned to the report, which is for the RAD to reasonably determine. …
It spoke to the lack of available resources in Pakistan without providing any evidence of knowledge regarding treatment options in that country. On the one hand, the psychologist said there were “no psychological or psychiatric treatment options for MDD and PTSD in Pakistan”; however, nothing suggests he had expertise in this respect. On the other hand, the Applicant argues that this comment was meant to indicate the Applicant would be untreatable should he return to Pakistan, without speaking to the state of mental health treatment in that country. On balance, my view is that this finding is reasonable.
It is open to a panel to find that opinion evidence is only as valid as the truth of the facts on which that opinion is based. The recounting of events to a psychologist or a psychiatrist does not make these events more credible.Footnote 389 Therefore, if a panel does not believe the underlying facts, it may discount a medical report or give it little weight in light of that finding.Footnote 390
The Board can decide what weight, if any, to give to a psychological report, but since it has no specialized expertise in psychological assessment, it cannot reject a psychologist's diagnosis.Footnote 391
Where reports are based on clinical observations that can be drawn independently from a claimant's credibility,Footnote 392 such expert reports can serve as corroborative evidence in determining credibility and the RPD should use the evidence in its assessment of the claimant's credibility.Footnote 393
The Federal Court has also held that where a professional opinion as to a claimant's psychological state and whether they are suffering from post-traumatic disorder is submitted, this opinion cannot be rejected because the doctor could not specifically corroborate the incidents reported by the claimant.Footnote 394
Reports from health care professionals are of most value to the extent that they contain healthcare-related evidence; they should not be rejected because they fail to name a claimant's assailant(s).Footnote 395
A medical report cannot be rejected for the sole reason that it does not indicate that the only possible cause of the injuries in question is the one stated by the claimant. It is sufficient that the report find that the injuries in question are consistent with the cause specified by the claimant.Footnote 396
The psychological report must be sufficient to explain the impact of a medical condition on the claimant's ability to testify (e.g., the connection between the cognitive errors referred to in the report and the contradictions or omissions).Footnote 397
Members must explain how the diagnosis in the psychological report affected their assessment of the claimant's testimony (i.e., they must consider whether the report adequately accounts for poor recollection or lack of coherence).Footnote 398
Even if the Board considers a claimant to be not credible, it must still examine the documentary evidence. Where the medical report is relevant to the panel's findings of non‑credibility, and credibility is central to the outcome of the claim, the RPD is obliged to explain how it dealt with the report in the context of making its non-credibility finding.Footnote 399
The RPD must use the psychological report to assess the claimant's credibility. When the RPD draws conclusions about credibility and then uses those conclusions to discount the reports, it is performing its analysis backwards, which is not reasonable.Footnote 400
2.4 Allowing the claimant to clarify contradictions or inconsistencies in the evidence
2.4.1 General principle
Procedural fairness is a “bedrock of administrative law.”Footnote 401 A basic tenet of natural justice is the right to be heard (audi alteram partem), which includes a party's right to know the case they must meet. In
Baker,Footnote 402 the Supreme Court of Canada emphasized that the requirements of procedural fairness are flexible, variable, and context-dependent. In the context of refugee determination, the third Baker factor, namely the importance of the decision to the persons affected, suggests a high level of participatory rights whereby claimants would have an opportunity to put forward their views and evidence fully and to have them considered by the decision-maker.
Generally, where a decision maker has a concern regarding the credibility of a party's evidence, the right to be heard mandates that the party have an opportunity to address the concern.Footnote 403 As explored below, the Federal Court has provided guidance on how this requirement may be satisfied in refugee determination proceedings.
2.4.2 Contradictions or inconsistencies internal to the claimant’s testimony
The Federal Court has long held that, as a general rule, the Board should afford a refugee claimant the opportunity to explain any apparent contradictions, inconsistencies, or omissions within their oral testimony, Basis of Claim form (BOC), or port of entry notes that are central to the Board's determination of the claim.Footnote 404 The more the panel relies on a discrepancy to impugn the claimant's credibility, the greater the duty to provide this opportunity.Footnote 405
In some cases, the Federal Court has departed from this general rule, finding it unnecessary for the Board to put a discrepancy to the claimant in the circumstances. For example, in
Ngongo,Footnote 406 the panel relied upon a contradiction that was significant in nature, readily apparent and provided in response to a direct question from the panel. Moreover, the claimant was represented by counsel, who could have questioned his client about the issue. The Court found the panel did not err by failing to put the alleged contradiction to the claimant.
On the other hand, when the Board is considering relying upon a discrepancy that is less obvious, there may be an increased onus on the panel to allow the claimant an opportunity to explain, keeping in mind the panel must avoid a microscopic review or an overzealous approach to peripheral or insignificant discrepancies in the evidence.Footnote 407
The Federal Court has found the Board breaches the rules of procedural fairness where it signals to the claimant that inconsistencies, contradictions, or omissions are not of concern, but then relies upon them in making negative credibility inferences.Footnote 408 This clearly can infringe upon the claimant's right to be heard, as can indicating that the claimant will have the opportunity to make submissions on a contentious point, but then rendering a decision without having given the claimant the opportunity promised.Footnote 409
The Board must consider a claimant's explanations for any apparent discrepancies in their testimony. As the Federal Court of Appeal noted in
Owusu-Ansah,Footnote 410 the Board cannot ignore an explanation for an apparent discrepancy and then make a negative credibility finding. The Board is not required to accept a claimant's explanation, but the explanation should be acknowledged in the reasons for decision and the panel should explain why it was rejected, if that is the case.Footnote 411 The explanation provided by the claimant must have been unreasonable or otherwise unsatisfactory to reject the claimant's testimony on the basis of credibility.Footnote 412
2.4.3 Where testimony is vague
Danquah, the Federal Court wrote the following with respect to a lack of detail in the applicant's account:
Nor am I persuaded that the tribunal was unfair in its process in not alerting the [claimant] at the time of her hearing, of its concerns about the weakness of detail in her testimony about these matters. There was no instance of inconsistency in the [claimant's] evidence relied upon by the tribunal, which it ought in fairness to have brought to the attention of the claimant. A hearing tribunal has no obligation to point to aspects of the [claimant's] evidence that it finds unconvincing where the onus is on the [claimant] to establish a well-founded fear of persecution for reasons related to Convention refugee groundsFootnote 413 .
Kutuk,Footnote 414 the Federal Court held that the Board is not obliged to alert a claimant to the vagueness of their evidence.
Jurado Barillas,Footnote 415 the Federal Court found there was a denial of procedural fairness when the Board faulted the principal claimant for a lack of detail in his testimony. The Court found the principal claimant had provided detailed testimony, which was largely consistent with the other evidence on the record. It held that if the Board required even more detail than was provided, then it should have alerted the claimants and allowed them the opportunity to address its concern.
2.4.4 Documentary evidence
Generally speaking, the Board is not required to provide claimants opportunities to explain discrepancies in documents that they are aware of and have provided themselves.Footnote 416 The Federal Court has distinguished such documents from extrinsic or extraneous evidence relied on by the Board. Claimants should be allowed to address discrepancies concerning extrinsic evidence.Footnote 417
Konare,Footnote 418 the applicant had submitted as evidence a complaint to a Malian court which stated that he joined his family two days after their relocation, whereas in his testimony, the applicant alleged he waited more than four months before joining his family. The Federal Court found there was no requirement to allow the applicant an opportunity to explain this inconsistency. The complaint to the court was not extrinsic evidence; rather, it was evidence submitted by the applicant and he was aware of its contents.
Gu,Footnote 419 the Federal Court found the responsibility for ensuring accurate translation of a summons provided by the applicant rested with her, and “the principles of procedural fairness do not require the Board to confront the applicant with information they had supplied themselves … .”
Moïse,Footnote 420 the applicant’s testimony and medical certificate were inconsistent regarding the date of an attack. The Federal Court held it could not “reproach the RPD for failing to confront him about the discrepancy.”
Sarker,Footnote 421 the Federal Court faulted the RPD for failing to allow the applicant an opportunity to explain discrepancies between the contents of newspaper articles and his testimony. The discrepancies were of questionable significance and did not originate entirely from the applicant himself.
2.4.5 Where evidence seems implausible
The Federal Court has held that the Board is under no obligation to alert the claimant of its concerns about weaknesses in testimony that give rise to findings of implausibility,Footnote 422 unless perhaps they relate to an inconsistency that is at the heart of the claim.Footnote 423
However, the Federal Court stated in
[W]here the panel's inferences are based on what seem to be “common sense” or rational perceptions about how a governmental regime in another country might be expected to act or react in a given set of circumstances, there is an obligation, out of fairness, to provide an opportunity for the [claimant] to address those inferences on which the panel relies.Footnote 424
Some other decisions of the Federal Court also hold that a claimant should be afforded an opportunity to explain why they or others behaved in a particular way.Footnote 425
Arumugam, the Federal Court attempted to reconcile these divergent lines of authority when it stated:
Board's [sic] cannot simply draw implausibilities “out of a hat”. They must be founded on the evidence. If they are clearly highly speculative
and a claimant has not been given an opportunity to address them, a reviewing Court will give the conclusion little weight. If they are firmly founded in and supported by the evidence they of course will be given greater weight.Footnote 426 [emphasis added]
2.5 Taking the claimant’s circumstances into account
2.5.1. Personal circumstances that may affect the evidence
The refugee determination process is unlike most other judicial processes in our legal system. It is specifically designed to be expeditious, informal, non-adversarial, and investigative in nature. The “normal” rules of evidence do not apply,Footnote 427 and decision making may involve the use of the Board members' “specialized knowledge.”Footnote 428 Generally, claimants are in vulnerable circumstances and this process is new and unique for them. Much of the oral evidence is received through the filter of interpreters under layers of cross-cultural communication. As a result, misunderstandings may occur, even among people acting in good faith.Footnote 429
Board members should account for a claimant's or other witness's unique circumstances when assessing the credibility of their evidence. Factors that may affect an individual's ability to observe events or recall or describe them during a hearing include but are not limited to the following:
- the passage of time;Footnote 430
- nervousness caused by testifying before a tribunal;Footnote 431
- the effects of having experienced trauma, including any relevant medical or psychological conditions (e.g., post-traumatic stress disorder);Footnote 432
- age;Footnote 433
- whether the claim includes allegations of gender-related persecution;Footnote 434
- whether the claim includes allegations relating to a claimant's sexual orientation and/or gender identity and expression (SOGIE);Footnote 435
- educational background;Footnote 436
- social position;Footnote 437 and
- any relevant cultural factors.Footnote 438
Decision makers must ensure they do not to make credibility findings based on myths or stereotypes.Footnote 439 They should also consider that a claimant or other witness's personal circumstances may involve the intersection of two or more of the above factors or other significant factors.Footnote 440
2.5.2 Trauma-informed assessment of credibility
Decision makers should take a trauma-informed approach when assessing the credibility of claimants and other witnesses in refugee determination proceedings. This includes anticipating the possibility that past trauma will affect the person's memory or ability to testify and recognizing that sharing a traumatic experience in a formal proceeding with a stranger in a position of authority may be intimidating. Emotional reactions to recounting traumatic experiences are unique to the individual, therefore decision makers should not expect a claimant or witness to behave a certain way when testifying about such experiences.
For example, in
Jones,Footnote 441 the Federal Court stated that the Board is obliged to take into consideration that victims of domestic abuse may exhibit symptoms of trauma which may impair their memory or make it difficult for them to describe their trauma. In that case, the Court quashed the decision because the RPD was “hypercritical” of differences between the claimant's Personal Information Form (PIF) and her testimony without considering whether those discrepancies resulted from her psychological difficulties rather than a desire to fabricate evidence.
Jones was cited in
Zamaseka,Footnote 442 a case where the refugee claimant alleged she had been raped and as a result was having “acute symptoms of distress.” The Court found the RPD erred in concluding that the rape did not take place based on an omission in her PIF regarding the presence of soldiers during the rape. The Court held the RPD should have asked itself whether the gaps between the PIF and her testimony resulted from psychological disorders related to the assault.
Isakova,Footnote 443 the RPD made a negative credibility inference from the fact the claimant did not get medical attention after being raped. The Court held that this inflexible assumption was clearly at odds with a contextual approach that accounts for the trauma of sexual assault.
An allegation of past trauma will not preclude the panel from making a negative credibility finding based upon material deficiencies in the evidence that are not reasonably explained. For example, in
Zararsiz,Footnote 444 the Court found that the RAD reasonably concluded that the appellant's mental health condition, which was allegedly the result of his lengthy incarceration and violence he suffered at the hands of his captors, did not explain the deficiencies in his evidence. The issue was not his inability to recall details, but rather significant inconsistencies between his statements at the port of entry and various iterations of his Basis of Claim narrative.
The jurisprudence recognizing the role of trauma in the assessment of credibility is reflected and expanded upon in the Board's Guidelines. For example,
Chairperson Guideline 3: Child Refugee Claimants: Procedural and Evidentiary Issues directs members to consider the potential impact of trauma when assessing the evidence of children.Footnote 445Chairperson Guidelines 4: Women Refugee Claimants Fearing Gender-Related Persecutionpromotes a trauma-informed approach to conducting hearings and assessing evidence in gender-related claims.Footnote 446 Finally,
Chairperson's Guideline 9: Proceedings Before the IRB Involving Sexual Orientation and Gender Identity and Expression includes the principle that an individual with diverse SOGIE may suffer from trauma which can impact their ability to testify.Footnote 447
3. A finding of "no credible basis"
3.1 Overview of the legislation
Subsection 107(2) of the
Immigration and Refugee Protection Act (IRPA) states that:
107(2) If the Refugee Protection Division is of the opinion, in rejecting a claim, that there was no credible or trustworthy evidence on which it could have made a favourable decision, it shall state in its reasons for the decision that there is no credible basis for the claim.Footnote 448
This “no credible basis” provision in the IRPA is substantially the same as its predecessor in the
Immigration Act, which provided, in subsection 69.1(9.1) that:
69.1(9.1) If each member of the Refugee Division hearing a claim is of the opinion that the person making the claim is not a Convention refugee and is of the opinion that there was no credible or trustworthy evidence on which that member could have determined that the person was a Convention refugee, the decision on the claim shall state that there was no credible basis for the claim.
Prior to 1993, when the amendments to the
Immigration Act came into effect, refugee determination was a two-stage process. Refugee claims did not gain access to a full determination by the Board unless a panel at the preliminary stage found them to have a credible basis in accordance with subsection 46.01(6) of the
RahamanFootnote 449 the Federal Court of Appeal noted thatwhenthe
Immigration Act was amended to eliminate the two-stage process and to add s. 69.1(9.1), the no credible basis test assumed a different function; instead of screening out claims at the preliminary stage, it served to restrict the post-determination rights of unsuccessful claimants whose claims were found not to be supported by any credible evidence.
The possibility of removing failed refugee claimants whose claims were unlikely ever to succeed before they embarked on futile appeals and reviews must have been what the Federal Court had in mind when it accepted that “an efficient use of limited resources necessitates that claims which clearly have no prospect of success be weaned from the system at an early stage, and that subsection 107(2) of the IRPA reflects sound policy considerations.” [emphasis added]Footnote 450
3.2 Analysis under subsection 107(2) is mandatory
When the Refugee Protection Division (RPD) rejects a claim, it “shall state” in its reasons for the decision that the claim has no credible basis where the necessary preconditions are satisfied based on the facts.
Subsection 107(2) does not grant any discretion to decision makers. Thus, where the RPD finds that there is no credible or trustworthy evidence in support of the claim, it is required to state that the claim has no credible basis.
Situations may arise where a decision maker must determine that a single claim has no credible basis and is also manifestly unfounded. The language in subsection 107(2) and section107.1 is mandatory and nothing suggests that a decision maker may choose one provision over the other. Thus, where the necessary conditions are present, a decision maker is required to make findings under both sections. Cases in which the RPD has done so have been upheld by the Court.Footnote 451 For example, in
Belay, the RPD rejected the claim and found that it was manifestly unfounded under
s. 170.1 of the
IRPA and had no credible basis under s. 107(2). Justice Elliottclearly addressed this issue in the reasons:
 […] the language in
sections 107(2) and
107.1 of the
IRPA are [sic] mandatory: if the RPD finds no credible or trustworthy evidence on which it could have made a favourable decision, it shall state that there is no credible basis to the claim. And if the RPD is of the opinion that a claim is clearly fraudulent then it must state that the claim is manifestly unfounded. It therefore stands to reason that if the RPD is of the opinion that there is no trustworthy or credible evidence on which it could have made a favourable opinion and that the claim is clearly fraudulent, then it must state both that the claim has no credible basis and that it is manifestly unfounded. That is what the RPD appears to have done in this case.Footnote 452
3.3 Excluded claimants
Although a claim can be both manifestly unfounded and also lack a credible basis, neither of these determinations is permissible after a claimant has been excluded. In
Singh, the Federal Court of Appeal stated that the RPD is precluded from finding that a claim has no credible basis once it determines that the claimant is excluded under Article 1F of the
Refugee Convention. Justice Stratas reframed the certified question as follows and answered it in the affirmative:
Considering the authority of the Refugee Protection Division under subsection 107(2) and section 107.1 of the
Immigration and Refugee Protection Act to determine that a claim has no credible basis or is manifestly unfounded, is the Refugee Protection Division precluded from making such a determination after it has found that the claimant is excluded under section F of Article 1 of the
Refugee Convention?Footnote 453
3.4 Notice requirement
Mathiyabaranam, the Federal Court of Appeal held that the Board is not required to give the claimant any special notice before it finds that the claim has no credible basis.
 The question to be decided, then, is whether specific notice must be given to a claimant before the Board may make a finding of no credible basis at the end of the hearing to decide Convention refugee status. There is no express statutory requirement to give any extra notice of this matter. Any such requirement to give notice, therefore, must be based on the natural justice right that a person has to know the case to be met in an administrative proceeding affecting his or her interests. In my view, as I shall explain, there is no right to receive any extra notice about the possibility of a finding of no credible basis. Hence, there has been no violation of natural justice in this situation.
 Any claimant is aware or should be aware of the risk of a no credible basis finding even without any additional notice being given about this potential outcome. A refugee claimant must realize that he or she must establish, as part of his or her claim, a credible basis for his or her claim. You cannot establish a claim for refugee status without first establishing a credible basis for that claim; the one is totally dependent upon and included in the other. I cannot imagine what a claimant, if given special notice, could possibly add to his or her case. All of the available evidence should already have been placed before the Board as part of the claim for refugee status.Footnote 454
However, as the Federal Court of Appeal indicates in paragraph 9, natural justice requires that a claimant know the case to be met. Thus, specific concerns related to the evidence pointing toward a s. 107(2) finding should be brought to the attention of the claimant at the earliest opportunity. A claimant must be provided with a reasonable chance to address all doubts of the decision maker before it is determined that the claim has no credible basis.
3.5 Serious consequences for the claimant
Two serious legal consequences flow from the no credible basis finding.Footnote 455
First, if the RPD determines that the claim has no credible basis, the claimant is barred from appealing to the Refugee Appeal Division (RAD) in accordance with s. 110(2)(c) of the IRPA.Footnote 456 Consequently, a claimant challenging the no credible basis finding would have to seek leave for judicial review of the RPD's decision at the Federal Court in accordance with s. 72(1) of the IRPA.
Second, a claimant whose claim is rejected by the RPD is ordinarily entitled to a stay of removal from Canada pending the outcome of a review of that decision by the Federal Court. However, if the RPD determines that a claim has no credible basis, the claimant is not entitled to an automatic stay of removal pending the leave application.Footnote 457 Consequently, in addition to applying for leave for the judicial review, the claimant must also apply to the Federal Court to stay the removal order. It must be noted that stays are granted on discretionary basis.Footnote 458
3.6 High threshold for finding that a claim has no credible basis
The Federal Court has emphasized on multiple occasions that the threshold for finding that the claim has no credible basis is a high one because the finding has such a significant impact on rights of claimants.Footnote 459
Due to the serious consequences of a no credible basis finding, the Federal Court is likely to closely scrutinize the RPD's s. 107(2) analysis. According to Mr. Justice Phelan in
Sterling, “The RPD cannot insulate itself from appellate review merely by making [a no credible basis] finding. A court must carefully examine such a finding because it has significant legal consequences and could possibly be made too easily or conveniently.”Footnote 460
While there is a high threshold for finding that a claim has no credible basis, the Federal Court of Appeal (FCA) in
Rahaman respondedtothe argument that in order to comply with international norms, a claim should be found to lack a credible basis only if it could be characterized as "manifestly unfounded" - the test used in international instruments. The Court analyzed relevant international law before stating that it was unnecessary to consider the argument, given the Court's conclusion that there was no international consensus on the meaning of "manifestly unfounded."Footnote 461
3.7 Meaning of credible or trustworthy evidence
Section 107(2) of the IRPA, like its predecessor s. 69.1(9.1) of the
Immigration Act, provides that a claimant's evidence must meet the “credible or trustworthy” standard.
Rahaman, the Federal Court of Appeal (FCA) described that evidence as “independent and credible” and capable of supporting a positive determination of the refugee claim.Footnote 462 In
Wright, the focus was on the objective nature of the evidence.Footnote 463
Examples from the case law offer guidance on the kinds of evidence that do or do not qualify as credible or trustworthy evidence on which a favourable decision could be made.
Paniagua,Footnote 464 a letter from the daughter's school referred to the Applicant's statement made to the principal that her daughter's behaviour was due to problems with the girl's father. The letter did not meet the independent and credible threshold because a recitation of the information supplied by the Applicant could not be regarded as independent evidence in support of the claim.
Wright,Footnote 465 the Applicant submitted three letters which were written by the Applicant's brother and two of her friends. The RPD noted that they were not firsthand reports of the events that had allegedly occurred. Specifically, the Federal Court stated with regard to the claimant's testimony, that these letters are not “objective evidence,” before concluding that the “objective underpinnings” that would militate against a no credible basis finding were not present.
Boztas decision highlights that a document that is given “little weight” by a decision maker may not support a no credible basis finding. Consequently, if the RPD dismisses the evidence based on credibility concerns, it should state that the document in question is given “no weight”.Footnote 466 In
Boztas, the RPD accepted evidence that could support a positive determination and gave the evidence some, though little, weight. In addition to the evidence of persecution and discrimination of persons of the same ethnicity and religion as the Applicant, there were letters from his doctor who attested to treating the Applicant's injuries, and from his lawyer who tried unsuccessfully to secure his release from police detention. The Court found that the RPD erred in its application of the test for no credible basis: “The RPD gave little evidentiary weight to these letters, but did not say that it gave the letters
no weight at all, as would be required for a 'no credible basis' finding [emphasis added].”Footnote 467
A claimant's undisputed membership in a particular social group may constitute credible or trustworthy evidence.Footnote 468 Similarly, evidence of knowledge of the language, geography, history, political landscape and public affairs of a country may be sufficient to defeat a finding of no credible basis.Footnote 469
Evidence of a mother being granted refugee protection may amount to credible or trustworthy evidence in relation to the claim made by her own child, who witnessed the acts of violence being perpetrated upon her mother. For example, in A.B.,Footnote 470 the Applicant's claim and her mother's claim shared a common agent of persecution.
Medical reports based solely on the non-credible story of the claimant may not be viewed as credible or trustworthy evidence. However, where the reports are based on clinical observations that can be drawn independently from a claimant's credibility, such expert reports can serve as corroborative evidence.Footnote 471
The Federal Court of Appeal has stated that country reports documents are not claimant-specific.Footnote 472 Consequently, claimants must demonstrate how country condition evidence applies in their particular circumstances.Footnote 473
For example, in
Joseph,Footnote 474 the Applicant argued that the RPD could not make a no credible basis finding while accepting that the documentary evidence showed that women faced endemic violence in Haiti. Justice Roussel noted that the RPD acknowledged that violence against women was endemic in Haiti, especially for single women. However, the Panel did not find that the evidence applied to the Applicant, given her situation. The RPD concluded that the Applicant failed to demonstrate that she could not be protected by her husband or her other family members. In other words, the RPD held that the Applicant did not belong to the targeted group. Moreover, she acknowledged that, aside from the one incident which gave rise to the claim, she never experienced violence against her person. Before the Court, the Applicant did not dispute the RPD's interpretation of the documentary evidence or provide contrary evidence. Consequently, the RPD's no credible basis finding was upheld.
Paniagua,Footnote 475 the documentary evidence stated that violence against women was widespread in the Dominican Republic and there were concerns about the effectiveness of the state's efforts to address the problem. However, the Federal Court noted that the Applicant's own experience differed as she had obtained state protection.
Mohamed,Footnote 476 the Federal Court held that “there was documentary evidence before the RPD, notably reports from the United Nations High Commissioner for Refugees, referenced in the National Documentation Package (April 30, 2018), which could support Mr. Mohamed's claim.” Consequently, the RPD erred when it concluded that his claim had no credible basis without assessing the independent and credible documentary evidence capable of supporting the claim.
The phrase “credible and trustworthy evidence” is qualified by the phrase “on which [the RPD] could have made a favourable decision”. Accordingly, the RPD may still find that a claim has no credible basis even if there is some credible or trustworthy evidence.Footnote 477 The legislation requires the decision maker to inquire whether the available evidence is “sufficient in law to sustain a positive determination of the claim.”Footnote 478 [emphasis added]
For example, in
Marquez,Footnote 479 the medical information did not have the probative value necessary to undermine the no credible basis finding, as it provided no information other than the nature of the injuries, which could have been caused in many different ways.
Another example of credible or trustworthy evidence whichlacked the requisite probative valueto preclude a no credible basis finding can be seen in Moïse,Footnote 480 where the Federal Court held that the death certificate which provided only the date of death of the Applicant's mother did not amount to credible and trustworthy evidence on which a positive decision could be made.
Paniagua,Footnote 481 the Applicant alleged that she was physically abused by her partner. The Federal Court agreed with the RPD that there was no credible or trustworthy evidence to support her claim for protection. Specifically, the daughter's birth certificate merely established paternity. A letter from the girl's school restated the Applicant's statement to the principal that the daughter's behavioural problems were due to problems with the girl's father, including aggression. Although a medical report was independent evidence of an injury to the Applicant, it contained no evidence of the cause. Finally, the protection order was not central to the claim as it captured events which occurred years prior to the matters mentioned in the claim.
Dimo,Footnote 482 the Federal Court held that the RPD made reasonable findings that the evidence before it was either not credible or the parts that were credible did not support the Applicants' claim. Thus, the Court agreed that the claim had no credible basis.
Li,Footnote 483 the Applicant claimed that he was persecuted because he protested against the forced sale of his land to the government. The RPD had concerns regarding the Applicant's identity and credibility. It dismissed the claim and found that it had no credible basis. The only objective evidence led by the Applicant were identifying documents indicating that he was an agricultural labourer (and not a landowner), a receipt for fertilizer, and a set of photographs which showed some land, but offered no indication that it was the Applicant's land subjected to expropriation. According to the Court, this evidence could not establish his claim. Thus, the no credible basis finding was reasonable.
3.8 Credibility and no credible basis findings
The following sections explore the interplay between negative credibility findings and s. 107(2).
3.8.1 A “no credible basis” finding requires more than a simple lack of credibility
The Federal Court of Appeal has stated that the Board should not routinely state that a claim has no credible basis whenever it concludes that the claimant is not a credible witness.Footnote 484
A.B.,Footnote 485 Justice Pamel explained that a “no credible basis” finding is not linked to a reasonable “not credible” finding. The RPD should not confuse and conflate the test for determining whether evidence is credible with its finding that there is no credible basis for the claim. To say that a claimant lacks credibility is not the same as saying that the claimant's claim has no credible basis.Footnote 486
If a claimant adduces independent and credible evidence that is capable of supporting a positive decision, then the claim will have a credible basis even if the claimant's testimony is found not to be credible.Footnote 487
In each of the following cases, the Court agreed that the claimant lacked credibility but found that the RPD erred in also concluding that the claim had no credible basis.
Pournamnivas,Footnote 488 the Federal Court found that the RPD's negative credibility findings were reasonable. However, it quashed the no credible basis finding. The RPD did not make explicit credibility findings about two witnesses. Moreover, the second witness was the Applicant's same-sex partner. The lack of any credibility findings against the second witness was particularly concerning to the Federal Court because the Applicant's homosexuality was squarely in issue before the RPD. Second, there was substantial documentary evidence before the RPD about the persecution of homosexuals in India. This evidence was not assessed by the RPD prior to making its no credible basis finding. In light of the country condition documentation about the treatment of homosexuals in India, and the fact the Member did not make any explicit negative credibility findings regarding the two witnesses, it was unreasonable to conclude that the claim had no credible basis.
Eze,Footnote 489 the Federal Court was open to accepting the RPD's negative credibility findings, despite the presence of multiple errors in the Board's analysis. However, it held that the RPD's findings under s. 107(2) were unreasonable. Specifically, the RPD made no references to the emails and mentioned the affidavits of family members only in passing. The RPD also made a blanket finding giving no weight to any of the Applicants' supporting documents because of its serious concerns regarding the Applicants' credibility. The Federal Court held that the Board rejected the documents without assessing them based on its flawed credibility analysis. Thus, the decision was quashed.
Omar,Footnote 490 the Federal Court agreed with the RPD that the claimant was not credible but overturned the no credible basis finding. The RPD accorded little weight to the letters of support and to the testimony of the identity witness, but did not reject this evidence in its entirety. According to the Court, this analysis of the evidence was heavily influenced by the RPD's general assessment of Mr. Omar's credibility. However, since there was some evidence on which the claim could potentially succeed, the no credible basis finding was unreasonable.
3.8.2 Erroneous credibility findings
The Federal Court is likely to overturn the no credible basis decision where the RPD makes erroneous negative credibility findings, particularly in relation to crucial evidence adduced by the claimant. Where the negative credibility findings are reasonable, the Court is less likely to intervene.
For example, in
Aboubeck,Footnote 491 Justice LeBlanc held that one of major credibility findings was made in error. Consequently, the no credible basis conclusion was unreasonable.
Tsikaradzei,Footnote 492 the Federal Court held that the RPD's findings concerning the Applicant's credibility could not be justified. The RPD did not believe that the Applicant was a member in a political organization and that he was assaulted. These conclusions were unreasonable in the face of the police reports, the medical reports, and the letter from the political party. Since the evidence contradicted its findings, the RPD was required to assess the documents provided by the Applicant. Its decision was “devoid of any analysis of why these documents were not credible.” Consequently, the no credible basis finding was unreasonable.
A.B.,Footnote 493 Justice Pamel reviewed the RPD's adverse credibility findings and concluded that many of them resulted from the RPD misconstruing elements of the Applicant's testimony. The RPD conflated the test for determining whether the evidence is credible with finding that there was no credible basis for the claim and failed to appropriately consider the documentary evidence before making a finding pursuant to s. 107(2) of the IRPA. Thus, the no credible basis finding was overturned.
Not every claim that lacks credibility also lacks a credible basis, but where negative credibility findings are reasonable, a no credible basis finding is less likely to be overturned.
Drammeh,Footnote 494 the Federal Court upheld the RPD's findings on s. 107(2) because the underlying credibility assessment was reasonable. In that case, the minor Applicant alleged that he feared persecution due to his father's mid-level position with the National Intelligence Agency (NIA) under the former government of Gambia. However, the only evidence to support the core of the Applicant's claim was his father's affidavit which stated that he was a driver for the Agency and had witnessed atrocities committed by the former regime. The RPD made a negative credibility finding with respect to the affidavit, given the absence of any documentary evidence to confirm that the father had indeed worked with the NIA. The RPD also made a negative credibility finding in relation to the Applicant's claim that direct threats had been made against his family, because the father's evidence did not reference any such threats. Furthermore, the RPD questioned the fact that the father sent his son to Canada to save him from harm, reasoning that that if anyone was of interest to the authorities in The Gambia it was the Applicant's father himself. There was no evidence to indicate that anyone in The Gambia had any interest in the Applicant. The Federal Court found that the RPD had considered the Applicant's evidence and had reasonably determined that it was not credible or trustworthy.
Fleury,Footnote 495 the RPD considered that the contradictions and inconsistencies between the documentary evidence and the Applicant's testimony related to that evidence rendered her testimony devoid of any credibility. The Federal Court upheld the RPD's negative credibility findings and agreed that the contradictions in the documentary evidence led the RPD to a reasonable conclusion that the claim had no credible basis. It emphatically rejected the suggestion that the RPD would have conflated its finding that the Applicant lacked credibility with its finding that there was no credible basis for her claim for refugee protection.
3.8.3 Where the claimant's testimony is the only evidence
In practice, the claimant's oral testimony is often the only evidence linking the claimant to the alleged persecution. In such cases, if the claimant is not found to be credible, there will be no credible or trustworthy evidence to support the claim.Footnote 496 In other words, an automatic no credible basis finding may flow from general negative credibility findings where there is no evidence other than the claimant's impugned testimony.
However, if there are errors in the assessment of the claimant's oral testimony, the Federal Court is likely to overturn the no credible basis finding. This is what happened in
Francisco,Footnote 497 where the Federal Court quashed the RPD's decision, which included its finding of no credible basis under s.107(2). The Applicant's oral testimony was the only evidence at the RPD hearing and the RPD concluded, based on its cumulative negative credibility findings, that the Applicant was generally not credible. Moreover, it concluded that there was no credible or trustworthy evidence to support the Applicant's claim. Justice Russell agreed with the Applicant that some of the RPD's adverse credibility findings were unreasonable. Since those findings were among the reasons for the RPD's conclusion that the Applicant was generally not credible, the decision was sent back.
3.9 Failure to establish identity and no credible basis findings
In numerous cases, the Federal Court has found it reasonable for the Board to conclude that the claimant failed to establish identity and also to find that there was no credible basis for the claim.
For example, in
Ahmed,Footnote 498 the RPD held that the Applicant had failed to establish her identity and found that the claim had no credible basis. It rejected the evidence offered by the Applicant and also rejected the evidence of two witnesses who testified on her behalf. The Federal Court upheld the decision without addressing the s. 107(2) findings.
Behary,Footnote 499 the RPD held that the claimant failed to establish his identity. It further found that the claim had no credible basis. After hearing the claimant's testimony and examining all the documentary evidence, the RPD concluded that there was no persuasive evidence establishing the claimant's nationality. The Federal Court held that because the claimant failed to establish that his nationality was Iranian, the documentary evidence as to persons at risk in Iran had no connection to him. Consequently, the no credible basis finding was reasonable.
The Federal Court also upheld the RPD's findings concerning s. 107(2) in
Olaya Yauce.Footnote 500 The Applicant argued that the RPD erred in its assessment of the weight to be given to his national identity card, sworn statements, and corroborative documents. According to the Applicant, there was credible evidence which his refugee claim could have succeeded. The Court however, held that the RPD reasonably found that the person in the photograph on the national identity card was not the Applicant. Although the Applicant failed to provide an English language translation of the national identity document as required by the
Refugee Protection Division Rules, it was obvious from the decision that the RPD did consider the card because it explained why the document was not reliable. Furthermore, the Applicant failed to produce the original identity document or his passport. The Applicant produced a scanned copy of his birth certificate after the hearing had begun but no original or the English language translation as required by the RPD Rules; and he failed to provide the email print out showing the email address and the communication to which the copy was attached. The RPD refused to hear from a witness, again because of the Applicant's failure to comply with the RPD Rules. According to the Federal Court, the RPD reasonably found that there was no credible and trustworthy evidence on which it could rely.
Obamoe,Footnote 501 the RPD rejected the Applicant's credibility and found that there was no credible or trustworthy evidence of his identity and nationality. The RPD found that the Applicant knowingly provided false information about all aspects of his journey to Canada and this undermined his overall credibility. The identity documents he submitted, including a photocopy of a birth certificate, were found to be fraudulent or improperly obtained and they were given no weight. The Member expressly found that there was no credible or reliable evidence that the Applicant was who he said he was. The Applicant contested only the no credible basis finding. As the Member rejected all available evidence concerning identity and nationality, the Federal Court upheld the no credible basis finding.
In other cases, the Federal Court found that the RPD reasonably concluded that the claimant's identity had not been established, but erred in finding that the claim had no credible basis because it either failed to consider, or else unreasonably assessed evidence that could establish the claimant's identity.
Mohamed,Footnote 502 although the Federal Court concluded that the RPD's identity finding was within the scope of reasonableness, it was not sufficient to save the no credible basis finding as the RPD committed a reviewable error, described by the Court in paragraph 34:
[…] the RPD here
did not give no weight to or otherwise reject the letters and declarations from Somali organizations, but gave them little evidentiary weight based on their lack of probative value, finding them insufficient to prove identity. Likewise, the RPD did not find that the Applicant's mother or cousin were not credible themselves, but gave their evidence little weight due to credibility concerns with respect to the Applicant's own evidence. Each of these pieces of evidence supported the Applicant's story. [emphasis added].
Hadi,Footnote 503 the Federal Court agreed that the Applicant failed to establish her identity. However, the Court considered that there was some evidence before the RPD that was potentially capable of establishing the Applicant's claim. For that reason, the RPD's finding that there was no credible basis for the Applicant's claim was unreasonable. Specifically, the Applicant submitted a letter from a non-profit organization which assisted people from Africa in establishing their citizenship. Two versions of the letter were provided but both concluded that the Applicant was born in Afgoye, Somalia. The first version stated that the Applicant completed an application and answered a questionnaire. However, the Applicant was illiterate. The second version stated that the Applicant participated in an oral interview during which she was questioned in the Somali language about Somali history, heritage, geography, clan lineage, and culture. The discrepancy arose because a boilerplate paragraph was not removed from the first letter. This error was corrected prior to the hearing and the finding concerning the Applicant's nationality in the first letter was left unchanged in the second version. The RPD stated that it understood the explanation. Furthermore, it raised no concerns with the organization's expertise or the contents of the letter. Nonetheless, the RPD gave the letter no weight based on the existence of two versions. The Court found that the Board erred in its consideration of the letter, which affected its assessment of the Applicant's nationality and clan membership. Thus, the no credible basis finding was unreasonable.
Kebedom,Footnote 504 the RPD's decision was overturned because its assessment of the Applicant's birth certificate was unreasonable. The Applicant claimed to fear persecution as a consequence of mandatory conscription in Eritrea. The RPD however, gave no weight to the Applicant's documents, including an Eritrean birth certificate despite its finding that there were no flaws on the face of the document. In light of the ready availability of fraudulent documents and its finding that the Applicant was not credible, the RPD concluded that the birth certificate was neither credible nor trustworthy. The Federal Court however, stated that the fact that fraudulent identity documents were available in Eritrea and in the Eritrean expatriate community in Canada was not a sufficient basis to reject the Applicant's birth certificate.
Liu,Footnote 505 the RPD found no credible evidence to establish the Applicant's identity. Since the Applicant's identity was essential to the other elements of his claim, the RPD determined that there was no evidence on which it could have made a positive finding. Specifically, the RPD found that the Applicant's testimony about his Resident Identity Card, which the RPD considered the most important document to prove the identity of Chinese nationals, lacked credibility. As for other documents that could have served as proof of the Applicant's identity, the RPD did not make any negative credibility findings against them. Rather, it determined that in light of the low weight given to non-secure documents as confirmation of identity, they did not meet the evidentiary threshold of proving the Applicant's identity on the balance of probabilities. At paragraph 32 the Court pointed out that this was the wrong approach for deciding that a claim had no credible basis:
 That approach is acceptable when making a finding on whether an applicant failed to establish their identity. However, it does not necessarily support the finding that there was no credible basis for this Applicant's claim. A finding of no credible basis requires that the RPD analyze whether, if the other identity documents were believed, the weight attributed to those documents could establish the Applicant's identity:
Rahaman v Canada (Minister of Citizenship and Immigration) [citation omitted]. By failing to conduct that analysis, the no credible basis finding made by the RPD is unreasonable.
3.10 Duty to assess all relevant evidence
Since the threshold for finding that a claim has no credible basis is a high one, the Board is required “to examine all the evidence and to conclude that the claim has no credible basis only when there is no trustworthy or credible evidence that could support a recognition of the claim” [emphasis added].Footnote 506 In Mohamed, the Court held that “in advance of reaching a conclusion of no credible basis, the RPD must look to any objective documentary evidence for any credible or trustworthy support for an applicant's claim.”Footnote 507 [emphasis added]
In Wu,Footnote 508 the Federal Court overturned the no credible basis finding because a significant piece of the evidence, a letter of dismissal from the employer, was not considered or rejected. The letter stated that the Applicant was a Falun Gong practitioner and that she was terminated for that reason. According to the Court, the letter could provide some credible evidence that could ground a positive finding, especially in light of the documentary evidence suggesting that the state pursues and monitors Falun Gong practitioners.
Pournaminivas, the Federal Court held that the failure of the RPD to consider the evidence of two witnesses meant that it had failed to properly consider whether there was any credible evidence to support the claim.Footnote 509
Moïse,Footnote 510 Justice LeBlanc noted that while it would be preferable, if not desirable, for the RPD to address each piece of the evidence that the Applicant submitted in establishing whether there was a credible basis for the claim, the RPD is not required to do so, unless the evidence may substantiate the Applicant's claim for refugee protection. Rather, the RPD has an obligation to refer to the evidence which, on its face, contradicts its conclusions and to explain why the evidence concerned did not have the effect of changing those conclusions. In other words, the no credible basis finding may be upheld even if the RPD did not explicitly refer to the submitted evidence, provided that the evidence could not support the claim. According to Justice LeBlanc, in
supra, the obligation to consider the evidence arose precisely because there was evidence which had the potential to contradict the RPD's findings concerning s. 107(2).
A similar approach was adopted in
Paniagua.Footnote 511 The Applicant alleged that a medical report and other three documents were not adequately assessed by the RPD. The Federal Court determined that the RPD did not intend to refer to the four documents. Although the RPD failed to expressly assess the documents, it did not err because the documents were insufficient to sustain a positive determination of the claim.
Djama,Footnote 512 the claimant argued that a letter written by her friend was not expressly considered by the RPD. The Federal Court held that the letter purported to confirm the existence of at least one fact that the RPD explicitly rejected during the hearing. Thus, the letter's general credibility was seriously undermined. Second, the Court distinguished
supra, because the letter in
Wu was more objective and did not purport to confirm one or more facts that had been found to be untrue by the panel. Notably, the Federal Court stated that the RPD had no duty to consider the letter even if it may have confirmed other facts that have not been found to be untrue. According to Justice Crampton, once a person has been found to be untruthful, the credibility of the rest of what the person has to say is seriously undermined to the point the RPD has no obligation to explicitly mention it in its decision. Accordingly, it was reasonably open to the RPD to implicitly consider that such a letter did not provide a credible basis for the Applicant's claim.
In summary, in situations where the claimant's evidence has not been expressly assessed by the RPD in relation to s. 107(2), the Federal Court has considered whether the evidence could have supported a positive determination of the claim. Where the evidence could reasonably have supported the claim, the findings made under s. 107(2) were quashed by the Federal Court.
3.11 Duty to provide adequate reasons
In several decisions, the Federal Court has faulted the RPD for failing to adequately articulate the analysis leading to its findings under s. 107(2).
For example, in
Boztas,Footnote 513 the RPD accepted that the Applicant was a Kurd of the Alevi religion. It also accepted that Kurds and Alevi practitioners face discrimination, harassment, and, in particular cases, persecution. It acknowledged that a number of documents in evidence outlined the difficulties Kurds face. However, according to the panel, not all Kurds faced persecution based on their ethnicity. Without further discussion of the issue, the RPD concluded that the claim had no credible basis. Justice Brown found that the RPD acted unreasonably and incorrectly, given that there was indeed credible or trustworthy evidence that could support a positive determination and that the evidence had in fact been accepted by the RPD and given some weight. He overturned the decision, noting that the entirety of the RPD's finding was contained in one paragraph: “The panel finds that pursuant to subsection 107(2) of the IRPA, that there was no credible or trustworthy evidence on which a favourable decision could be made and therefore there was no credible basis for the claim.”
Hadi,Footnote 514 the Federal Court stated that, “[…] the RPD provided no discussion or analysis of its finding that there was no credible basis for the Applicant's claim. In order to properly make a finding that limited the Applicant's subsequent procedural rights, the RPD, as a matter of fairness, was required to do so.”
3.12 Court-ordered remedies
There is some uncertainty as to the most appropriate remedy where a no credible basis finding is overturned by the Federal Court. A review of the jurisprudence shows a number of different approaches:
- The Federal Court has quashed the no credible basis conclusion while upholding the RPD's decision based on reasonable negative credibility findings.Footnote 515
- The Federal Court has remitted only the question concerning the no credible basis conclusion to a differently constituted panel of the RPD for re-determination.Footnote 516
Mahdi,Footnote 517 the Federal Court suspended the operation of the RPD's decision to allow an applicant to commence an appeal to the RAD.
Qiu,Footnote 518 the Federal Court returned the matter to the RPD with directions that the portion of the decision declaring that no credible basis finding be set aside and that an amended decision to that effect be issued bearing the date of the amendment.
- In most cases, the Federal Court has chosen to remit the entire decision to the RPD for redetermination by a different panel.Footnote 519
4. Manifestly unfounded claims
Section 107.1 of the
Immigration and Refugee Protection Act (“IRPA”)Footnote 520 provides that a claim must be deemed to be manifestly unfounded in certain circumstances.
107.1 If the Refugee Protection Division rejects a claim for refugee protection, it must state in its reasons for the decision that the claim is manifestly unfounded if it is of the opinion that the claim is clearly fraudulent.
The scope of section 107.1 is limited to cases where the claim is “clearly fraudulent”. A determination that a claim is manifestly unfounded should not be confused with a finding under
subsection 107(2) that a claim has no credible basis.
4.2 Analysis under section 107.1 is mandatory
Section 107.1 does not grant discretion to the RPD. If a panel rejects a claim and finds it is clearly fraudulent, it “must state” in its reasons for the decision that the claim is manifestly unfounded.
Situations may arise where a decision maker must determine that a single claim is both manifestly unfounded and without credible basis. The language in subsection 107(2) is also mandatory and nothing suggests that a decision maker may choose one provision over the other where the necessary conditions of both provisions are met.
YaredBelay, the RPD rejected the claim and found that it was manifestly unfounded and had no credible basis. Justice Elliottclearly addressed this issue in her reasons:
[T]he language in sections 107(2) and 107.1 of the
IRPA are [sic] mandatory: if the RPD finds no credible or trustworthy evidence on which it could have made a favourable decision, it shall state that there is no credible basis to the claim. And if the RPD is of the opinion that a claim is clearly fraudulent then it must state that the claim is manifestly unfounded. It therefore stands to reason that if the RPD is of the opinion that there is no trustworthy or credible evidence on which it could have made a favourable opinion and that the claim is clearly fraudulent, then it must state both that the claim has no credible basis and that it is manifestly unfounded.Footnote 521
4.3 Excluded claimants
Singh,the Federal Court of Appeal said that the RPD is precluded from finding that a claim is manifestly unfounded once it determines that the claimant is excluded under Article 1F of the
Justice Stratas reframed the certified question as follows and answered it in the affirmative:
Considering the authority of the Refugee Protection Division under subsection 107(2) and section 107.1 of the
Immigration and Refugee Protection Act to determine that a claim has no credible basis or is manifestly unfounded, is the Refugee Protection Division precluded from making such a determination after it has found that the claimant is excluded under section F of Article 1 of the
Refugee Convention?Footnote 522
4.4 Notice requirements
The RPD is not required to provide notice to a claimant that it is considering finding their claim to be manifestly unfounded. However, procedural fairness will often require that the claimant be given an opportunity to respond to credibility concerns that form the basis of such a finding, just as it would with respect to credibility concerns more generally.
4.5 Serious consequences for the claimant
Two serious legal consequences flow from a finding that a claim is manifestly unfounded.
First, the claimant is barred from appealing to the Refugee Appeal Division (“RAD”) by
subsection 110(2)(c) of the IRPA. Thus, a claimant challenging a manifestly unfounded determination would have to seek leave to have the RPD's decision judicially reviewed by the Federal Court.
Second, the claimant is not entitled to an automatic stay of removal when they seek leave for judicial review.Footnote 523 Consequently, the claimant must also apply to the Federal Court for a stay of removal, which is a discretionary remedy.Footnote 524
4.6 Application of section 107.1 by the RAD
On several occasions, the RAD has noted the RPD could or should have determined appellants' claims were manifestly unfounded.Footnote 525 In some older decisions, the RAD substituted its own determinations that claims were manifestly unfounded.Footnote 526 However, more recently, the RAD has found it lacks jurisdiction to do so, as section 107.1 confers the authority to find a claim is manifestly unfounded only on the RPD.Footnote 527
4.7 “Clearly” does not impose a higher burden of proof
The Federal Court has stated on multiple occasions that the threshold for finding a claim to be manifestly unfounded is a high one,Footnote 528 and such a finding must be grounded in the evidence.Footnote 529
Warsame, the Federal Court explained that “clearly fraudulent” refers to the firmness of the finding. It means the decision maker has the “firm conviction that refugee protection is sought through fraudulent means.”Footnote 530
The balance of probabilities standard applies to section 107.1 of the IRPA and the word “clearly” should not be interpreted as requiring a higher burden of proof.Footnote 531
Warsame,Footnote 532 the Court rejected the argument that a claim can be found to be clearly fraudulent only in “the clearest of cases.” Similarly, in
Balyokwabwe,Footnote 533 the Federal Court rejected the argument that section 107.1 should be reserved for the “most egregious circumstances.”
4.8 Meaning of “fraudulent”
4.8.1 Broad interpretation
The Federal Court has interpreted “fraud” broadly for the purposes of section 107.1. In
Warsame,Footnote 534 the Court suggested that deceit is not an essential component. Rather, the gravamen of fraud is dishonesty, which may manifest itself through deceit or falsehood. The RPD must determine whether the claimant, as a matter of fact, represented that a situation was of a certain character, when in reality it was not. In other words, the decision maker needs to determine whether the claimant was dishonest.
He, the Federal Court indicated the fraud contemplated by section 107.1 must be deliberate. Justice Norris wrote that for section 107.1 to apply, “the decision maker must find that the claimant has
deliberately portrayed matters that go to the core of the claim for protection falsely.”Footnote 535 [emphasis added]
4.8.2 “Fraudulent” refers to the claim
Warsame,Footnote 536 the Court emphasized that “fraudulent” refers to the claim and not the fact that the claimant would have used, for instance, fraudulent documents to get out of the country of origin or gain access to Canada. However, once a claimant makes a claim for refugee protection, the person is expected to operate with clean hands. Otherwise, attempting to gain refugee protection through falsehoods may make the claim fraudulent.
4.8.3 The dishonesty must affect the claim in a material way
Warsame, the Federal Court wrote:
But not any misstatement or falsehood would make a refugee claim fraudulent. It must be that the dishonest representations, the deceit, the falsehood, go to an important part of the refugee claim for the claim to be fraudulent, such that the determination of the claim would be influenced in a material way. It seems to me that a claim cannot be fraudulent if the dishonesty is not material concerning the determination of the claim.Footnote 537
In other words, falsehoods that are merely marginal or antecedent to the refugee claim would not qualify. Nor would a claim be reasonably characterized as clearly fraudulent simply because the story is not believed.Footnote 538
The following cases provide examples of significant acts of dishonesty that have led decision makers to conclude a claim is clearly fraudulent. Decision makers have often characterized such dishonest conduct as affecting the “core of the claim.”
Wang,Footnote 539 a Chinese citizen alleged that he joined the banned Eastern Lightening Church because conventional treatments had not improved his health issues. Among the documents seized by the Canadian Border Services Agency was a blank medical record that had been sent to the applicant's address. The RPD determined that the applicant had made a manifestly unfounded claim. In upholding the RPD's decision, the Federal Court agreed that the blank medical record was related to the central pillar of the claim and that the applicant could not escape “the obvious inference that he had been sent a blank form so that he could complete it himself in a way that would confirm the medical problems that were the basis for his turning to the Church.”
Balyokwabwe,Footnote 540 the Federal Court rejected the argument that the RPD had conflated a lack of credibility with a clearly fraudulent claim. According to the Court, the RPD based its findings on deceits and falsehoods that went to the very heart of the claim, including the key assertion that the applicant was a clinical officer who treated LGBTQ people.
Ahmad,Footnote 541 the applicant alleged that he was the chief executive officer of a company that worked with American troops in Afghanistan. The RPD could not verify his identity and it appeared that his employment documents were fraudulent. The Federal Court upheld the RPD's determination that the claim was manifestly unfounded. According to Justice Gleeson, the evidence related to the company, in particular the business registration certificate, went to the core of the claim and the negative credibility findings in these areas allowed the RPD to reasonably come to its determination.
Omoijiade,Footnote 542 the applicant had tendered a newspaper article as evidence that he was on a high-priority police search list in Nigeria due to his sexual orientation, which caused him to flee. The RPD found the article was fraudulent and the applicant had submitted it to deceive the RPD and gain refugee protection. The Federal Court upheld the RPD's determination that the claim was manifestly unfounded.
Varbanova,Footnote 543 a core aspect of the claim involved an allegation that the applicant had been unlawfully detained and abused by Bulgarian police, who were intent on forcing her into prostitution. The RPD found that the applicant's medical reports and police summons were fabricated. The Federal Court held the RPD “had a reasonable foundation for rejecting Ms. Varbanova's evidence and for its finding that the claim was manifestly unfounded based on her dishonesty,” noting that the documents were material to her story about a police assault.
The applicant in
FatoyeFootnote 544 alleged she was persecuted because of her work as a human rights lawyer in Nigeria. The RPD held that the claim was manifestly unfounded because central documents, namely the threat letters and police report, were fraudulent. The Federal Court upheld the decision because the adverse credibility findings were not the result of minor inconsistencies that were secondary to the claim, but rather issues that went to the heart of the story.
In some cases, the Federal Court has disagreed with the RPD's characterization of the dishonest conduct as relating to the core of the claim and quashed the RPD's findings with respect to section 107.1. In
Hohol,Footnote 545 the RPD concluded the claim was manifestly unfounded because the applicant had submitted fraudulent documents, including a police report relating to alleged beatings and a letter from his grandmother stating that the individuals who beat him had returned to his house looking for him. In finding those two documents were fraudulent, the RPD gave no weight to other documents submitted by the applicant. The Court quashed the decision, finding that the documents did not relate to any dishonesty material to the determination of the claim, which was based on the applicant's sexual orientation.
4.9 Failure to establish identity
The Federal Court's decision in
NtsongoFootnote 546 highlights how dishonest conduct related to a claimant's identity may lead the RPD to reasonably conclude that the claim is manifestly unfounded. In that case, the RPD cited numerous credibility concerns, including in relation to the applicant's passports, number of children, marital status, religion, and employment history, as well as the fact that he possessed identity documents issued under two different identities. The Federal Court held the RPD had reasonably concluded that the claim was manifestly unfounded. According to the Court, a refugee claimant has a fundamental obligation to establish their identity, and based on the evidence in the case, it was impossible to determine the applicant's identity.
Diallo,Footnote 547 the RPD determined the applicant failed to establish his identity and the claim was manifestly unfounded. The RPD noted anomalies in the applicant's identity documents and questioned the manner in which he purportedly obtained them. The Federal Court upheld the decision without commenting on the RPD's section 107.1 finding.
4.10. Unreasonable credibility findings
The Federal Court may overturn the RPD's determination that a claim is manifestly unfounded if the negative credibility findings that informed the panel's section 107.1 analysis are unreasonable. In
Ali, the applicant alleged his son was kidnapped and murdered by a criminal group. The RPD disbelieved the applicant's story about the death of his son and held that most of the documents in evidence, including the death certificate and police report, were fraudulent. Consequently, the RPD held that the claim was manifestly unfounded. The Federal Court overturned the decision, finding the panel had microscopically dissected the evidence with the presumption that it was fraudulent. Specifically, the panel made several unreasonable implausibility findings and focused on insignificant grammatical errors in the documents without considering objective country conditions documentation on Pakistan.Footnote 548
The applicant in
RahiFootnote 549 had abandoned a claim for asylum in the United States. The RPD concluded that the claim was manifestly unfounded, relying in part on a note the applicant's former counsel made on a submission for the U.S. claim. The existence of that note was not within the knowledge of counsel for either party on judicial review before the Federal Court. The Court found the RPD's decision was unreasonable due to “errors in fact-finding.”
Zhou,Footnote 550 the RPD was concerned that the ink on the stamps on the applicant's documents was wet, smearing, and transferring to other documents. The panel concluded that the documents were fraudulent and the claim was manifestly unfounded. The Federal Court found that the RPD decision substantially overstated the ink problem and set it aside.
The applicant in
YeganehFootnote 551 was an Iranian midwife who alleged she was persecuted because she had performed a hymenoplasty and converted to Christianity. The RPD did not believe the applicant had performed the procedure because she could not name the bodily organ or tissue that she purported to have stitched together (i.e. hymen), despite the interpreter's suggestion that Farsi has no word for “hymen”, the applicant's description of the procedure, and the lack of contradictions in the testimony. The RPD rejected the claim and found it was manifestly unfounded. On judicial review, the Federal Court overturned the RPD's decision.
He,Footnote 552 the RPD concluded the Wanted Circular and Release Certificates the applicant submitted were fraudulent. The panel wrote that “the law of criminal procedure in China does not expressly provide for the use of such documents” and concluded the claim was manifestly unfounded. However, nothing in China's criminal procedure law foreclosed the use of such documents in the applicant's situation. Given the centrality of the impugned evidence to the applicant's claim, the Federal Court found the decision was unreasonable.
Balyokwabwe,Footnote 553 the Federal Court held that the RPD unreasonably extended negative credibility findings to other testimony and documents that were not otherwise impugned and failed to independently consider other relevant evidence. Thus, the RPD's negative credibility findings, even cumulatively, did not reasonably justify its determination that the applicant's claim was clearly fraudulent.
4.11 Cumulative and general credibility findings
The Federal Court has upheld findings of manifestly unfounded claims that were based on the cumulative effect of multiple negative credibility inferences or findings that claimants generally lacked credibility.
Warsame,Footnote 554 the RPD had found the applicant was not a trustworthy witness due to a number of credibility issues concerning his narrative. In addition, the RPD found the applicant had relied upon fraudulent marriage and birth certificates and failed to establish his identity. The panel concluded the claim was manifestly unfounded and the Federal Court upheld the decision.
Mbuyamba,Footnote 555 Justice Pentney cited
Warsame and noted a claim may be found to be manifestly unfounded based on a single fraudulent element or by cumulation. Similarly, in
Yuan,Footnote 556 Justice Strickland wrote that
Warsame could be taken to suggest that the RPD can find a claim is manifestly unfounded based on cumulative credibility findings.
The applicant in
MoriomFootnote 557 seriously undermined her credibility and allegations by knowingly making false declarations about her name, birthdate, and passport and omitting evidence about her travels to the United Kingdom. The RPD emphasized the applicant's fraudulent intent and the “substantive nature” of her false declarations. Having found that the claimant generally lacked credibility and the record lacked independent and credible documentary evidence capable of supporting a positive disposition, the RPD dismissed the claim as manifestly unfounded. The Federal Court upheld the RPD's decision on judicial review.
Bushati,Footnote 558 the RPD found the applicants generally lacked credibility, relied upon fraudulent documents, and failed to provide independent and credible evidence that would support a positive credibility finding. The RPD concluded the claim was manifestly unfounded. In upholding the decision, the Federal Court wrote that the “applicants' evidence was replete with inconsistencies, discrepancies, and omissions.” The Court found the RPD had reasonably concluded that the claimant's blood feud certificate was fraudulent, among other reasonable findings that undermined the claims.
Nanyongo,Footnote 559 the applicant alleged that she was arrested twice in connection with her political opinion before fleeing to Canada. The RPD found various documents the applicant provided were fraudulent, including a recognizance of surety, release orders, arrest warrants, and a medical report. The decision was unusual because the RPD's analysis under section 107.1 erroneously included an irrelevant paragraph that was apparently copied from an unrelated decision. While the Federal Court faulted the RPD for this oversight, it held that the manifestly unfounded finding was reasonable due to the multitude of adverse credibility findings which supported the conclusion.
4.12 Sufficiency of reasons
The RPD's general obligation to justify its findings with sufficient reasons also applies with respect to a finding that a claim is manifestly unfounded. As explained above, not all dishonest representations amount to a clearly fraudulent claim, so the RPD must explain why the credibility concerns in a case make the claim clearly fraudulent.
Yuan, the RPD's failure to properly justify its finding that the claim was manifestly unfounded led to the decision being overturned on judicial review. In her reasons, Justice Strickland wrote:
In this matter, the RPD reasons devoted only one sentence to its finding that the claim was manifestly unfounded. … I am not satisfied that this demonstrated that the RPD appreciated the difference between a clearly fraudulent claim and one that is based on negative credibility findings, or otherwise adequately explained the basis for its conclusion. Accordingly, its finding is not justified, transparent and intelligible, and does not meet the reasonableness standard … .Footnote 560
Liu,Footnote 561 the Federal Court found the RPD had failed to justify its finding that the applicant's subpoena was fraudulent. Justice McDonald wrote that the “RPD then compounds the impact of this finding when it links the ‘fraudulent summons' to the ultimate conclusion that Ms. Liu's claim is manifestly unfounded.” The RPD failed to identify the dishonest representations, deceit, or falsehoods that led to its conclusion that the claim was manifestly unfounded. The decision was therefore unreasonable.
4.13 Court-ordered remedies
Nagornyak, Justice Strickland observed there had not been many decisions concerning the proper remedy in cases where the court concluded that the RPD's finding that a claim was manifestly unfounded was unreasonable. However, she wrote that “the considerations and questions of the appropriate remedy surrounding s 107(2) apply equally with respect to findings by the RPD that a matter is manifestly unfounded pursuant to s 107.1.”Footnote 562
See Chapter 3, section 3.12 for remedies in s.107(2) cases
Nagornyak, the Court considered the court's order in
Omar,Footnote 563 where the Court found that the RPD's rejection of Mr. Omar's refugee claim was reasonable, but that its no credible basis conclusion was not. The only question remitted to the RPD for re-determination concerned the no credible basis finding. The Court in
Nagornyak decided against ordering a similar remedy despite acknowledging that “it would perhaps be possible to only remit the question of whether the Applicant's claim is manifestly unfounded back to the RPD.” The Court concluded that this was not appropriate in the circumstances because the reasonableness of the overall decision was undermined by problems relating to multiple credibility findings and other factual errors. Thus, the Court quashed the entire decision and sent the matter back to a differently-constituted panel of the RPD for redetermination. Justice Strickland further explained that it was preferable to avoid a scenario where the Court upheld the RPD's finding that the applicant was not a Convention refugee or person in need of protection and remitted only the section 107.1 issue. If, in that scenario, the new RPD panel found the claim was not manifestly unfounded, the RAD subsequently would have to render a decision on whether to grant refugee protection while knowing that the Federal Court had already ruled on the issue.Footnote 564
In the recent
BalyokwabweFootnote 565 decision, the Minister proposed that if the Federal Court disagreed with the RPD's conclusion that the claim was manifestly unfounded but found the credibility findings to be reasonable, it could remit only the manifestly unfounded issue back to the RPD. The Court agreed that it could quash one aspect of a decision in a case where that aspect was clearly excisable from the rest of the decision. However, in this case, the unreasonable credibility findings that underpinned the manifestly unfounded determination also underpinned the denial of the applicant's claim, and therefore the Court remitted the matter back to the RPD to be entirely redetermined by a different panel.
As with s. 107(2) cases, most cases in which 107.1 findings were held to be unreasonable have been remitted to the RPD to be completely redetermined.Footnote 566