From a review of the Federal Court jurisprudence, it is possible to identify six areas that have caused particular difficulty for Board members when assessing the credibility of claimants or other witnesses.
2.1. CONSIDERING ALL OF THE EVIDENCE
2.1.1. Considering the Evidence in its Entirety
The Federal Court has made it clear in a number of cases that when assessing the credibility of a claimant, it is important to remember that all of the evidence, both oral and documentary, must be considered and assessed, not just selected portions of the evidence.Note 35 Thus the RPD should not selectively refer to evidence that supports its conclusions without also referring to evidence to the contrary.Note 36 Furthermore, when assessing all of the evidence, it must be assessed together, not parts of it in isolation from the rest of the evidence. Evidence should, therefore, be treated in a consistent manner.Note 37
The Federal Court has also emphasized that it is important not just to concentrate on exaggerations,Note 38 but neither should a decision-maker disregard aspects of the evidence that are not favourable to the claimant.Note 39 Thus the panel must do more than simply search through the evidence looking for inconsistencies or for evidence that lacks credibility, thereby "building a case" against the claimant, and ignore the other aspects of the claim.
The Board is presumed to have taken all of the evidence into consideration whether or not it indicates having done so in its reasons, unless the contrary is shown.Note 40 Therefore, the mere fact that the tribunal fails to refer to all of the evidence when rendering its decision does not necessarily signify that it ignored evidence, if a review of the reasons suggests that the tribunal did consider the totality of the evidence.Note 41
Thus not every piece of evidence needs to be referred to and discussed in the reasons. However, as explained in Cepeda-Gutierrez,Note 42 the more relevant the evidence, the more likely the Federal Court will find an error if it is omitted from the analysis:
…the more important the evidence that is not mentioned specifically and analyzed in the agency's reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact "without regard to the evidence": Bains v. Canada (Minister of Employment and Immigration) [(1993), 20 Imm. L.R. (2d) 296 (F.C.T.D.)]. In other words, the agency's burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency's finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
Thus, a presumption exists that the panel weighed each point of evidence, but there is still a duty, namely that of mentioning important evidence supporting the panel's decision.
Generally speaking, it is only necessary to refer explicitly to evidence that is directly relevant to the issue being addressed, and that which otherwise may appear to be in conflict with the conclusion reached.Note 43
Where the claimant provides personal documentary evidence or medical reports, specific to and corroborative of his claim, it is not sufficient to simply make a blanket statement, without explanation, that no probative value was assigned to this evidence because of a general lack of credibility on the part of the claimant.Note 44
Frimpong and other casesNote 45 illustrate the related point that reasons must be given for disregarding uncontradicted statements, either expressly or implicitly. If this is not done, it will leave the decision open to attack.
2.1.2. Assessing the Balance of the Evidence Found to be Credible
Even if there are inconsistencies or exaggerations, the panel must still go on to assess the evidence which is found to be credible and determine the claim as the totality of the evidence warrants.Note 46
In other words, the rejection of some of the evidence, or even all of the claimant's testimony, on account of lack of credibility does not necessarily lead to the rejection of the claim: the claim must still be assessed on the basis of the evidence that was found to be true, including documentation relevant to the claimant's situation and evidence regarding persons who are similarly situated.Note 47
The claimant's failure to testify does not allow the RPD to reject the claim without first assessing the remaining evidence.Note 48
2.1.3. General Finding of Lack of Credibility
It is possible to make a finding that overall a claimant's testimony is not credible. The Court of Appeal stated in Sheikh:Note 49
even without disbelieving every word [a claimant] has uttered, a…panel may reasonably find him so lacking in credibility that it concludes there is no credible evidence relevant to his claim… In other words, a general finding of a lack of credibility on the part of the [claimant] may conceivably extend to all relevant evidence emanating from his testimony.
In some cases, the claimant's contradictory testimony can cast doubt upon the totality of his oral evidence.Note 50 But this is not always so, especially when the panel's findings of lack of credibility and implausibility are not clearly tied with the ultimate issues to be determined in the claim.Note 51
Where a finding of a total lack of credibility cannot be made, the remaining credible or trustworthy evidence must be considered to determine whether it supports a finding of a well-founded fear of persecution.
2.1.4. Lack of Subjective Fear
Where a claimant is found to be lacking in credibility, the RPD can legitimately find that there is no subjective basis for the claim. In such cases, it is very difficult, if not impossible, to find credible evidence of a claimant's subjective fear, notwithstanding the existence of evidence of human rights violations in the claimant's country.Note 52
In Yusuf,Note 53 the Federal Court stated that it is difficult to see in what circumstances it could be said that a person could be right in having an objective fear of persecution and still be rejected because it is considered that fear does not actually exist in the person's conscience. However, that case was decided before the Supreme Court of Canada decision in Ward,Note 54 which made it clear that both components of the test are required to establish fear of persecution: the claimant must subjectively fear persecution, and this fear must be well-founded in an objective sense. Thus, a lack of evidence going to the subjective element of the claim is in itself sufficient for the claim to fail.Note 55 This appears to be so even when there is evidence that an objective basis for the fear exists.Note 56
Despite the existence of a bipartite test, some Federal Court decisions have held that evidence of lack of subjective fear or credibility based on the claimant's behaviour does not relieve the Board from its responsibility to deal with personal documentary evidence, specific to the claimant, that corroborates the claimant's testimony.Note 57
2.1.5. Joined and Related Claims
Where a claim has been joined to another claim, a finding of 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 one is dependent on the other.Note 58 A finding that one of the claimants is credible would generally impact on another claimant whose claim is based on the same fact situation.Note 59 Where one of the claimants presents his or her own allegations of persecution or the joined claims have distinctive elements, those aspects will require separate analysis.Note 60
In general, the Board has no obligation to refer to or follow the decisions of other panels, even when it is dealing with members of the same family.Note 61 Where there is relevant evidence put before the panel regarding a related claim (that was heard separately) which can link the claimant to the persecution alleged,Note 62 or which casts doubt on the claimant's credibility,Note 63 the Board will have to consider it. However, the RPD is not bound by a decision rendered by another panel of the same Division,Note 64 nor is it entitled to rely on another panel's overall conclusions on the previous claim, which was found not to be credible, as evidence in support of its conclusion that the present claimant's story is not credible.Note 65
2.3. BASING A DECISION ON SIGNIFICANT AND RELEVANT EVIDENCE AND ASPECTS OF THE CLAIM
2.3.1. Relevancy Considerations
The Federal Court has held that a finding that testimony is not credible must be based on relevant considerationsNote 77 It is possible, however, to use evidence that is not directly relevant to a ground for claiming refugee status in deciding that the claimant lacks credibility, where that evidence undermines the claimant's identityNote 78> or reveals a pattern of fabrication that gives rise to doubts generally about the claimant's veracity.Note 79
2.3.2. Contradictions, Inconsistencies and OmissionsNote 80
The existence of contradictions or inconsistencies in the evidence of a claimant or witness is a well-accepted basis for a finding of lack of credibility.Note 81 As discussed later (see 2.3.4. Materiality), the discrepancies must be sufficiently serious and must concern matters that are relevant to the issues being adjudicated to warrant the adverse finding.
These considerations apply as well to omissions in the claimant's previous statements, whether made to Canadian immigration officials (at the port of entry or inland);Note 82 in a previous examination (such as an examination under oath);Note 83 or hearingNote 84 on the claim; in the claimant's Personal Information Form (PIF)Note 85 or the PIFs of family members;Note 86 or during an interview at the Board.Note 87 It appears, however, that little can be made of the claimant's failure to advise Canadian officials abroad of his or her fear of persecution when applying for a visa to come to Canada,Note 88 or perhaps with respect to omission of information in the eligibility interview notes.Note 89
The Federal Court has identified the following general factors as relevant to the assessment of inconsistencies or discrepancies:Note 90
 The discrepancies relied on by the Refugee Division [CRDD] must be real [Rajaratnam v. Canada (Minister of Employment and Immigration) (1991), 135 N.R. 300 (F.C.A.)]. The Refugee Division must not display a zeal "to find instances of contradiction in the [claimant's] testimony … it should not be over-vigilant in its microscopic examination of the evidence" [Attakora v. Canada (Minister of Employment and Immigration) (1989), 99 N.R. 168 (F.C.A.)]. The alleged discrepancy or inconsistency must be rationally related to the [claimant's] credibility [Owusu-Ansah v. Canada (Minister of Employment and Immigration) (1989), 8 Imm. L.R. (2d) 106 (F.C.A.)]. Explanations which are not obviously implausible must be taken into account [Owusu-Ansah, supra].
 Moreover, another line of cases establishes the proposition that the inconsistencies found by the Refugee Division must be significant and be central to the claim [Mahathmasseelan v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 29 (F.C.A.)] and must not be exaggerated [Djama, Idris Mohamed v. M.E.I. (F.C.A., no. A-738-90), Marceau, MacGuigan, Décary, June 5, 1992].
2.3.3. PIFs and Statements Made to Immigration Officials
Port of entry notes or documents prepared by Canadian immigration officials are admissible at an RPD hearing, without any further participation by the Minister at the hearing.Note 91 They are admissible even though they may be unsigned and undated,Note 92 and even though their author is not called or is not available to testify.Note 93 Port of entry notes are admissible even though there is no evidence that the form in question has been established by ministerial order,Note 94 and even though the notes are in a non-official language.Note 95
In a number of cases, the Federal Court pointed out some of the pitfalls in using port of entry notesNote 96 and PIFs,Note 97 and relying unduly on contradictions or omissions as a reason for a finding of lack of credibility, as these are not always indicative of a lack of credibility. While the omission of a significant fact from a claimant's PIF can be the basis for a adverse credibility finding,Note 98 the Board should in each case consider the nature of the contradiction or omission, as well as the timing of any amendment to the PIF (for example, a significant last-minute amendment as opposed to merely adding further detail at the hearing), and take into account any explanation offered by the claimant.Note 99
With respect to the content and level of detail of the PIF narrative, the Federal Court stated in Basseghi:
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 [a claimant] 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.Note 100
In assessing discrepancies, the RPD should consider factors such as the claimant's psychological conditionNote 101 or young age,Note 102 and the vulnerable circumstances of abused women.Note 103
The similarity between the claimant's PIF and the PIFs of other claimants may be an appropriate basis for questioning the credibility of a claim.Note 104
There is no special requirement for the RPD to notify the claimant at the hearing that changes to the PIF or omissions are of significant importance: the PIF form advises the claimant of the importance of the answers in the PIF.Note 105
If a claimant alleges that the interpreter used to translate the PIF is responsible for its shortcomings, it is up to the claimant to decide whether to call the interpreter as a witness.Note 106
It is clear from a long line of cases that an adverse finding of credibility based on contradictions in a claimant's or witness's testimony must be based on real contradictions or discrepanciesNote 107 that are of a significant or serious nature. Minor or peripheral inconsistencies in the claimant's evidence should not lead to a finding of a general lack of credibility where documentary evidence supports the plausibility of the claimant's story.Note 108
Inconsistency, misrepresentation or concealment should not lead to a rejection of the claim where these are not material to the claim. Where a claimant is found to be lying, and the lie is material to the claim, the panel must, nevertheless, look at all of the evidence and arrive at a conclusion based on the entire body of evidence before it.
A number of decisions of the Federal Court indicate that if the claimant's story is being rejected outright, the contradictions must relate to central elements or critical points, that is, the foundation of the claim.Note 109 Accordingly, when the testimony appears to be consistent as a whole, the panel must point out contradictions or implausibilities that relate to central aspects of the claim to support a finding that the claimant is not credible.Note 110
Thus it has been held that rejecting a claim based solely on the non-credibility of secondaryNote 111 or peripheralNote 112 issues, without evaluating the credibility of the evidence concerning the substance of the claim, constitutes a reviewable error.
It has also been recognized in some cases, however, that, while the discrepancies and contradictions considered individually might have seemed insignificant, when taken together and considered in context, they may support a finding of lack of credibility.Note 113 (See also 2.1.3. General Finding of Lack of Credibility.)
The RPD does not necessarily have to accept a witness's testimony simply because it was not contradicted at the hearing. The RPD is entitled to make reasonable findings based on implausibilities, common sense and rationality, and may reject evidence if it is not consistent with the probabilities affecting the case as a whole.Note 114
In this respect, the British Columbia Court of Appeal stated in Faryna v. Chorny :Note 115
The credibility of interested witnesses, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried the conviction of truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions.
It is not sufficient simply to indicate that the claimant's story is "implausible" without explaining further the reasoning behind that finding.Note 116 Adverse findings of credibility must be based on reasonably drawn inferences and not conjecture or mere speculation.Note 117 Where the RPD finds a lack of credibility based on inferences concerning the plausibility of the evidence, there must be a basis in the evidence to support the inferences.Note 118
The panel should therefore articulate why the testimony that is being rejected is clearly out of line with what could be reasonably expected in the circumstances,Note 119 and should ensure that any such conclusion is supported by the evidence, including references to the relevant documentary evidence.Note 120
A claimant's testimony ought not to be lightly or readily dismissed. It is not sufficient for the decision-maker merely to indicate that he or she prefers to accept what is considered to be a more reasonable explanation of the events, nor is it appropriate to go on to construct one's own hypothesis as to how events actually unfolded.Note 121
The Federal Court has indicated that considerable caution is required when assessing the norms and patterns of different cultures and the practices and procedures of different police, political, and social systems.Note 122 Actions which might appear implausible if judged by Canadian standards might be plausible when considered within the context of the claimant's social and cultural background.Note 123
Similar concerns arise when the Board applies Canadian standards of conduct to persons fleeing persecution,Note 124 or draws inferences about the likelihood of the claimant being perceived as a political activist based on his or her "minor" role or on his or her ability to obtain a passport, without regard to relevant country conditions.Note 125
The Federal Court has cautioned about the perils of drawing inferences from cultural generalizationsNote 126 and relying on stereotypical profiles,Note 127 as well as assessing ethnicity based on the panel's perception of the claimant's physical appearance (unless this is plainly apparent or acknowledged by the claimant), without regard to how the claimant would be perceived in his or her home country. The panel's "common sense" is not sufficient to ground a conclusion about ethnicity based on appearance; rather, it must be able to offer other evidence to support its conclusion.Note 128 Gender considerations are also relevant to assessing the plausibility of a claimnat's account (see the discussion in 2.6.2. Special Circumstances of the Claimant).
The Federal Court has stressed the importance of clearly articulated reasons in cases where the non-credibility finding is based on perceived implausibilities.Note 129 When making an assessment involving implausibility, reference must also be made to relevant evidence and explanations offered by the claimant which could potentially refute the conclusion of an adverse finding on implausibility.Note 130
While the panel is entitled to weigh the evidence and assess its credibility, it cannot reach a conclusion that is so inconsistent with the preponderance of the relevant evidence so as to be unreasonable.Note 131
Decisions based on findings of implausibility are vulnerable on a review by a superior court or tribunal. The Federal Court has indicated that it will not extend undueence to the Board's assessment of plausibility, as such assessments are based on the drawing of inferences and are subject to challenge, especially when they are based on extrinsic criteria such as "rationality" or "common sense".Note 132
On the other hand, when the inferences drawn that lead to a finding of lack of credibility are not so unreasonable as to warrant the intervention of the Court, the findings will be allowed to stand. Put another way, the Federal Court will not substitute its discretion for that of the panel if it was open to the panel to find as they did, even if the Court might have drawn different inferences or found the evidence to be plausible.Note 133
2.3.6. Incoherent Testimony and Lack of Knowledge or Detail
A claim may be rejected as lacking in credibility if the claimant's testimony is found to be incoherent or vague,Note 134 or lacking in sufficient knowledge or detail reasonably expected of a person in the claimant's position and from that social and cultural background.Note 135 However, the RPD should be cautious about imposing too high a standard on the claimant's knowledge about matters such as politics, religion and the like.Note 136
In assessing the credibility of the evidence, the RPD can evaluate the general demeanour of a witness as he or she is testifying. This involves assessing the manner in which the witness replies to questions, his or her facial expresssions, tone of voice, physical movements, general integrity and intelligence, and powers of recollection.Note 137 However, relying on demeanour to find a claimant not credible must be approached with a great deal of caution.
The Federal Court has recognized that every judge's assessment of credibility is influenced by a witness's demeanour. The Court cautioned that, although the reasons for reaching a conclusion on this issue may be partly subjective, they must also be founded on objective considerations.Note 138
In assessing demeanour, the decision-maker ought not to form impressions based on the physical appearance or political profile of a witness,Note 139 but on objective considerations that flow from the witness's testimony, such as the witness's frankness and spontaneity, whether the witness is hesitant or reticent in providing information, and the witness's attitude and comportment (behaviour) before the tribunal.Note 140
Moreover, there must be a rational connection between the claimant's demeanour and the conclusions drawn from it. Individual personality traits and cultural background should be taken into account as these could cause the witness to leave a misleading impression.Note 141
A claimant's psychological condition arising out of traumatic past experiences may have an impact on his or her ability to testify.Note 142 Accordingly, failure to address this factor in its reasons could be a reviewable error where the RPD has found the claimant not to be credible.
The demeanour of a witness is not an infallible guide as to whether the truth is being told, nor is it determinative of credibility. It would be a rare case where demeanour alone would be sufficiently material to the claim to undermine the entire testimony in support of a claim. Generally, demeanour is one of several indicators of a lack of credibility. In general, the courts have attempted to diminish the role of demeanour in the final assessment of credibility.Note 143
Assessments of credibility based on demeanour are open to scrutiny on judicial review. Accordingly, clear and cogent reasons must be given for such findings.Note 144
2.3.8. Criminal and Fraudulent Activities in Canada
In Fouladi,Note 145 the Federal Court stated that it was permissible to take account of an offence committed in Canada that involves deceit as a factor in assessing the claimant's credibility. However, in another case, the Federal Court categorized as "questionable" a panel's drawing of a negative inference as to the existence of a subjective fear of persecution, because of the claimant's criminal behaviour in Canada.Note 146
The Federal Court has held that the making of multiple applications for Convention refugee status under different identities was a proper basis for reaching a negative assessement of the overall credibility of a claimaint.Note 147
2.3.9. Delay in Claiming Refugee Status and Other Related Factors
Delay in seeking and applying for refugee protection is not an automatic bar to a claim for protection. Refugee claimants are not obliged under the Convention Relating to the Status of Refugees to seek asylum in the first country which they reach after flight, or in the country nearest to their home state.Note 148
Nonetheless, the Federal Court of Appeal has held that delay in claiming refugee status "is an important factor which the Board is entitled to consider in weighing a claim for refugee status."Note 149 Ultimately, the Board must decide, based on the evidence before it, the significance of a delay to a particular case.Note 150
Delay points to a lack of subjective fear of persecution,Note 151 the reasoning being that someone who was truly fearful would claim refugee status at the first opportunity.Note 152 The Federal Court has also held that delay could be a consideration in finding a claimant not to be credible.Note 153
The Court of Appeal has stated that the credibility of a claimant's fear cannot be disputed solely on the basis that the claim for refugee status was late in coming.Note 154 In Huerta, Mr.Justice Létourneau wrote:
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.Note 155
Thus, despite the bipartite test for fear of persecution which requires both an objective element and a subjective fear, some Federal Court decisions have held that evidence of lack of subjective fear or credibility based on the claimant's behaviour does not relieve the Board from its responsibility to deal with the risk associated with the claimant's profile or personal documentary evidence, specific to the claimant, that corroborates the claimant's testimony.Note 156
Exceptionally, in cases involving long delays in making a claim or returns to the country of alleged persecution, where no satisfactory explanation is provided, the Trial Division has upheld decisions finding that the delay or return itself was incompatible with a subjective fear of persecution,Note 157 or negated a well-founded fear of persecution.Note 158
In a series of recent decisions, a number of Federal Court judges have taken the view that Huerta enunciated a general principle, and that, although the presence of delay does not mandate the rejection of a claim as the claimant may have a reasonable explanation for the delay, nonetheless, delay may, in the right circumstances, constitute sufficient grounds upon which to reject a claim. That decision will ultimately depend on the facts of each claim.Note 159
Therefore, the RPD should inquire intoNote 160 and examine the 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.Note 161
Where the circumstances are such that a claimant does not have to seek protection when outside the country of persecution because the claimant is safe from being forced to return, not making a refugee claim at the first opportunity should not generally be held against the claimant.Note 162
The RPD should also bear in mind the special circumstances and pressures which refugees may face in assessing delay, such as a psychological condition or the vulnerable circumstances of abused women.Note 163
The following circumstances could be seen as negating the claimant's fear, but only if reasonable explanations are not provided by the claimant:
- Failure to flee one's country of origin at the first opportunity after the occurrence of a persecutory nature.Note 164
- Failure to go into hiding immediately after learning that one may be in danger.Note 165
- Failure to claim (or to await the outcome of a claim) to Convention refugee status in countries where the claimant resided or sojourned, or through which the claimant travelled before coming to Canada.Note 166 For this factor to be relevant the country in question must be a signatory to the Convention Relating to the Status of Refugees.Note 167
- Returning voluntarily to one's country of origin,Note 168 obtaining or renewing a passport or travel document,Note 169 or leaving or emigrating through lawful channels.Note 170 Some factors to consider in assessing a return to one's country include: the purpose of the return; the manner in which the claimant effected the return; how the claimant passed the time on return (for example, whether the claimant was in hiding); whether the evidence indicates that the claimant put him- or herself at risk by returning; whether any difficulties were experienced on return; the claimant's explanation for the return; and whether the explanation is reasonable.
- Delay in making a refugee claim in Canada.Note 171 However, a claim may be credible even though it was not made at the earliest possible opportunity. A genuine refugee may well wait until he or she is safely in the country before making a claim and cannot be expected, in every case, to claim refugee status at the port of entry.Note 172 A claim cannot be disallowed because of the mere fact that the claimant entered or remained in Canada illegally.Note 173
A genuine refugee may not know of the entitlement to refugee status and may have remained for some time before becoming aware of the Canadian refugee determination procedure.Note 174 A delay may be explained by reliance on other means of securing the right to remain in Canada.Note 175 Therefore, the fact that a claim was made only when the claimant's temporary status was expiring,Note 176 or only after receiving the advice of a lawyer, does not preclude a genuine claim.Note 177
A claimant would not normally be expected to claim until such time as he or she actually begins to fear persecution.Note 178 For sur place claims, the relevant date as of which the claimant became aware that he would allegedly face persecution on return to the country of nationality is the relevant date, and not the date of arrival in Canada.Note 179
- The Federal Court has held that an adverse inference cannot be drawn from the fact that a claimant has not disclosed his or her fear of persecution at a visa office abroad.Note 180
2.4. RELYING ON TRUSTWORTHY EVIDENCE TO MAKE ADVERSE FINDINGS OF CREDIBILITY
2.4.1. Trustworthy Evidence on Which to Base Findings
The Federal Court has emphasized that an adverse finding of credibility must be supported by trustworthy evidence.Note 181 When part of the testimony raises questions, the decision-maker must have trustworthy evidence to the contrary,Note 182 or must find this part of the testimony inconsistent or inherently suspect or improbable,Note 183 if it is to be rejected.
In determining whether the evidence that contradicts the claimant's testimony is trustworthy, factors such as the source of the information, the objective of the person in providing it and the methods used to gather the information should be considered. In addition, the decision-maker must also determine the weight or probative value to be assigned to such contradictory evidence.Note 184 In this regard, the decision-maker must be satisfied that the evidence relied on is probably so, not just possibly so.Note 185
2.4.2. Presumption of Truthfulness
The Court of Appeal, in MaldonadoNote 186 and on several other occasions,Note 187 set out the 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. Hence, as a corollary, there is no legal requirement for a claimant to corroborate sworn testimony that in uncontradicted and otherwise credible. (See 2.4.2. Corroborative Evidence.)
In Hernandez,Note 188 the Federal Court pointed that this presumption does not extend to the inferences that the claimant draws from the facts 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.
This proposition was elaborated in Derbas,Note 189 where the Federal Court stated:
By accepting the [claimant's] version of the events as fact, the Board was certainly not bound to accept the interpretation he puts on those events. The Board still had to look at whether the events, viewed objectively, provided sufficient basis for a well-founded fear of persecution.
Thus, the Board is entitled to reject some or all of the inferences drawn by the claimant, especially if they are speculative in nature, even in the absence of an adverse finding of credibility.Note 190
If a panel puts questions to the claimant which he or she could not reasonably be expected to know (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 explanation.Note 191
2.4.3. Corroborative Evidence
Unless there are valid reasons to question a claimant's credibility, it is an error for the RPD to require documentary evidence corroborating the claimant's allegations. In other words, the RPD cannot disbelieve a claimant merely because the claimant presents no documentary or other evidence to confirm his or her testimony.Note 192 Thus, generally, a failure to offer documentation cannot be linked to the claimant's credibility where there is no evidence to contradict the claimant's allegations.Note 193
In Kaur, the Federal Court held 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.Note 194
2.4.4. Silence of the Documentary Evidence
The Court of Appeal stated in AduNote 195 that
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 the claimant's testimony.Note 196
Caution should be exercised, however, especially when the documentary evidence before the panel is silent about a particular matter,Note 197 or less than comprehensive.Note 198 Moreover, a document containing general information may not be always sufficient to refute testimony dealing with a specific, individualized event.Note 199
It is doubtful that an adverse inference as to 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.Note 200
2.4.5. Lack of Identity and Other Personal Documents
Section 106 of IRPA incorporates a specific—and mandatory—requirement for the RPD to consider a claimant's lack of documents to establish identity in assessing a claim for refugee protection.
106. The Refugee Protection Division must take into account, with respect to the credibility of a claimant, whether the claimant possesses acceptable documentation establishing identity, and if not, whether they have provided a reasonable explanation for the lack of documentation or have taken reasonable steps to obtain the documentation.
Subsection 100(4) of IRPA provides, in part, that "the claimant must produce all documents and information as required by the rules of the Board." Rule 7 of the Refugee Protection Division Rules (RPD Rules), in turn, provides that
7. The claimant must provide acceptable documents establishing identity and other elements of the claim. A claimant who does not provide acceptable documents must explain why they were not provided and what steps were taken to obtain them. [Emphasis added.]
Thus a lack of acceptable documents without a reasonable explanation for their absence, or the failure to take reasonable steps to obtain them, is a significant factor in assessing the credibility of a claimant. Consequently, the issue of identity documents should be addressed at the hearing of the claim and, where applicable, in the reasons for decision. Failing to deal with this issue in its reasons, when it is raised by the evidence, will constitute an error of law on the part of the RPD and may result in the decision being set aside.
126.96.36.199. Commentary to RPD Rule 7
The Commentary to RPD Rule 7 contains guidance as to the practice of the RPD relating to the issue of identity documents.
Claimant's duty to provide documents establishing identity
Section 106 of the Immigration and Refugee Protection Act imposes a duty on the claimant to provide acceptable documents establishing the claimant's identity, including documents the claimant does not possess but can reasonably obtain. In assessing the claimant's credibility, the Division must consider the lack of such documents and any reasonable explanation given for not providing them, as well as the steps taken to obtain them. Documents that are not genuine, that have been altered, or that are otherwise improper are generally not acceptable proof of identity.
Meaning of "identity"
"Identity" most commonly refers to the name or names that a claimant uses or has used to identify himself or herself. "Identity" also includes indications of personal status such as country of nationality or former habitual residence, citizenship, race, ethnicity, linguistic background, and political, religious or social affiliation.
Additional requirements under the Act
Subsection 100(4) of the Immigration and Refugee Protection Act requires the claimant to produce all documents and information as required by the rules of the Board. Subsection 170(d) requires the Division to provide the Minister, on request, with the documents and information referred to in subsection 100(4) of the Act.
Additional requirements under the rules
The rules impose the following requirements for providing documents to the Division:
- The claimant must attach to the Personal Information Form three copies of all his or her travel and identity documents, whether or not they are genuine, and three copies of any other documents relevant to the claim (RPD Rules, subsection 6(3)). These documents include not only those that were used but also those intended to be used for travelling or supporting the claim.
- The claimant must provide to the Division without delay three copies of any additional documents obtained after the Personal Information Form was provided (RPD Rules, subsection 6(5)).
- The claimant must also comply with the disclosure requirements under rule 29 of the RPD Rules if the claimant wants to use any document at the hearing of the claim. Translations must be provided for all documents that are not in English or French (RPD Rules, subsection 28(1)).
- The claimant is to present the originals of his or her documents at the beginning of the hearing of the claim or at the interview in the expedited process held under rule 19 of the RPD Rules. The Division may require the claimant to provide the originals earlier by notice in writing (RPD Rules, rule 36).
Personal Information Form
The requirement to provide acceptable documents establishing identity and other elements of the claim is also set out in the instructions for completing the Personal Information Form. The claimant is further specifically instructed to make every effort to obtain the necessary identity documents immediately, if the claimant does not have them, and to identify other identity documents the claimant has or can obtain.
The Division may instruct the claimant to provide specific documents that have been identified by the Division in the claim-screening process as being necessary for considering the claim.
Record of the steps taken to obtain documents
The claimant should keep a record of the steps taken, such as copies of letters sent, to obtain identity and other necessary documents.
Presenting evidence on identity at the hearing of the claim
The claimant is required to establish his or her identity and other elements of the claim. The claimant should therefore be prepared to present evidence on the issue of identity at the beginning of the hearing, unless the Division has notified the claimant or counsel otherwise.
Explanation for lack of documents
The claimant who is unsuccessful in obtaining documents to establish his or her identity and other elements of the claim should be prepared to provide a reasonable explanation for the lack of documents and show that diligent efforts were made to obtain such documents and to present proof of the steps taken. The Division may instruct the claimant to make further efforts to obtain necessary documents.
Other independent evidence to establish identity
The claimant who lacks documents or whose documents are not found acceptable should be prepared to present other independent evidence to establish his or her identity or other elements of the claim, if such evidence is available. Such evidence may include:
- testimony of friends, relatives, community elders or other witnesses; and
- affidavits of individuals who have personal knowledge of the claimant's identity or other elements of the claim.
188.8.131.52. Background and Jurisprudence
While recognizing the difficulty that claimants often encounter in being able to furnish documentation to establish their claim,Note 201 the UNHCR Handbook nonetheless places responsibility on claimants to provide evidence to support their claims and to attempt to obtain additional evidence if required. Thus a claimant should
205. … (ii) Make an effort to support his statements by any available evidence and give a satisfactory explanation for any lack of evidence. If necessary he must make an effort to procure additional evidence.
In 1997, the Immigration and Refugee Board issued a Commentary on Undocumented and Improperly Documented Claimants (IRB Legal Services, March 11, 1997), and an accompanying Practice Notice, to provide guidance to CRDD members as to how to deal with claimants who lacked proper documentation.Note 202 These two documents are superseded by the provisions of IRPA and Rule 7, which are outlined above.
The Commentary on Undocumented and Improperly Documented Claimants received scant notice in the Federal Court. While the Commentary is no longer in effect, the one decision of the Federal Court that specifically refers to the accompanying Practice Notice and which reasoning is still relevant is Nardeep Singh.Note 203 In that case the Court held:
The Board referred to a Practice Direction [Practice Notice on Undocumented and Improperly Documented Claimants] of March 11, 1997 in which counsel are notified that the Board may make adverse inferences where there is no reasonable explanation for a lack of documentary evidence or where there has been a lack of reasonable diligence in obtaining that kind of evidence.
It is true, generally speaking, that the Board may not discredit a claimant's testimony simply because of an absence of documentary evidence, particularly in situations where it would not be reasonable to expect the [claimant] to have it at his or her disposal: … However, the Board did not reject Mr. Singh's testimony solely because of an absence of documentation. It did so because it he had had "ample opportunity to seek documentation in support of his claim" and because it did not accept his explanations for failing to produce that evidence. In the end, the Board concluded that there was insufficient evidence before it to support Mr. Singh's claim.
In subsequent decisions, the Federal Court noted that IRPA—particularly sections 100(4) and 106 and section 7 of the RPD Rules — places emphasis on identification,Note 204 and that Federal Court judges have emphasized the importance of a person's identity.Note 205
Section 7 of the RPD Rules was considered in the case of Amarapala,Note 206 where the Court applied the principles enunciated in Nardeep SinghNote 207 to that provision, which is broader in scope than section 106 of the Act.
Section 7 [of the RPD Rules ] makes documentation a requirement not only for establishing identity, but also for other elements of the claim. However, a reasonable explanation for the failure to provide documents under section 7 means that corroboration documents are not always necessary. …
In this case, the [claimant] provided documents about his father's and brother's involvement in the UNP [United National Party], and the Board reasonably expected documents would be produced about the [claimant's] involvement with the UNP. The failure to produce documents one would normally expect is a relevant consideration in assessing and rejecting the credibility of the [claimant]. [Emphasis added.]
The application of section 106 of IRPA and Rule 7 by the RPD has been upheld by the Federal Court in several cases.Note 208 In those cases, the Board had requested the claimant to submit corroborating documents; the claimant was made aware of the Board's concerns as to the claimant's identity and/or the genuinenness of the documents submitted; the Board provided the claimant with an opportunity to address the Board's concerns about the documents submitted or the lack of documents; and the Board considered the claimant's explanation is assessing the credibility of the claimant.Note 209 The Federal Court has held that the submission by the claimant of identity documents that were clearly not authentic could properly lead the panel to conclude that the claimant was not a trustworthy person.Note 210
The Federal Court has established the following principles relating to the issue of lack of identity documents. Most of this case law was decided under the previous Immigration Act, but is still relevant.
- The claimant has the fundamental obligation to establish his or her identity on a balance of probabilities.Note 211 Thus, the claimant must come to a hearing with all of the evidence that he or she is able to offer and believes is necessary to prove the claim.Note 212
- Where relevant, the claimant should be advised that identity is an issue, and of the need to provide specific documents or other corroborative evidence.Note 213
- The panel should take into account in its decision any explanation given by the claimant for not providing documents or other corroborative evidence and the efforts made to obtain such evidence, and provide reasons for not accepting the explanations offered by the claimant to be reasonable.Note 214
- What is "reasonable" ("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 abroad over which he or she has no control.Note 215 It may be unreasonable, or even implausible, for a claimant not to have brought certain documents with him or her or not to have made efforts to obtain the corroborative evidence requested by the RPD.Note 216 The panel is entitled to draw a negative inference where the claimant fails to provide documents that the claimant undertook to provide at the hearing.Note 217
- The Federal Court of Appeal has held that the fact that a claimant has 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 a peripheral matter of limited value to determination of general credibility.Note 218 However, more recent Trial Division decisions have held that the Board was correct in attaching importance to this matter.Note 219 The destruction of genuine documents is a relevant consideration.Note 220
- Even if the required documents or corroborative evidence are not provided, and the claimant does not offer a satisfactory reason for not doing so or make reasonable efforts to obtain them, the panel should still go on to assess the balance of the evidence, especially if it may corroborate the claimant's story.Note 221
- A lack of relevant documents may lead to a finding that a claimant has not discharged the burden with respect to identity and other elements of the claim. This is often done in conjunction with a consideration of other factors relating to credibility.Note 222 Where a claimant's story has been found to be implausible or otherwise lacking in credibility, a lack of documentary corroboration,Note 223 or a lack of efforts to obtain the documentation,Note 224 can be a valid consideration for purposes of assessing credibility. The circumstances in which a document is providedNote 225 or the fact that the claimant provides documents selectively may be a basis for drawing an adverse credibility finding.Note 226
The "unanimity provisions" found in paragraph 69.1(10.1)(a) of the Immigration Act,Note 227 which changed the effect of a split decision by a two-member panel on the claim when identity documents were disposed of or destroyed without valid reason, are not part of IRPA. However, section 106 of IRPA allows the RPD to consider similar factors in applying that provision. Therefore, the Federal Court case law relating to the "unanimity provisions" discussed below is still relevant to the issue of whether the claimant provided a reasonable explanation for the lack of documents.
"Identity documents" include both genuine and false or fraudulent documents.Note 228 The words "disposed of" connote intention or an act of will; they do not encompass victimization by theft, robbery, trickery or intimidation.Note 229
2.4.6. Self-Serving Evidence
The Federal Court commented, in Kimbudi, that it is difficult to conceive what evidence would be available to a claimant in Canada that would not be self-serving.Note 230 Thus the RPD should have a good reason to dismiss a claimant's evidence as being "self-serving".Note 231 It would not constitute "clear reasons" for finding evidence not to be credible to simply refer to it as being "self-serving", without providing any further analysis.Note 232
In Vallejo, the Federal Court held that the absence of "self-serving" evidence that is otherwise accorded little or no weight is "a flimsy basis for doubt."Note 233
2.4.7. 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,Note 234 even if it finds the claimant trustworthy and credible.Note 235 However, RPD members must provide clear and sufficient reasons for accepting documentary evidence over the evidence of the claimant, especially when it is uncontradicted.Note 236
The Federal Court has upheld, in a number of decisions, the Board's reliance on documentary evidence originating from a variety of reputable independent sources, none of which can be said to have any vested interest in the claim at hand (and are to that extent free of bias), in preference to the claimant's testimony.Note 237
This does not necessarily apply to information obtained from an individual 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.Note 238
2.4.8. Assessing Documents
The matter of foreign documents is not an area where the Board can claim particular knowledge.Note 239 There is no general requirement for the RPD, however, to submit an identity or other document for forensic testing.Note 240
Where there is sufficient evidence to cast doubt on its authenticity, whether because of an irregularity on its face or the questionable circumstances in which it was obtained or provided, a document may be assigned little (or no) weight, without expert verification or where such verification is inconclusive.Note 241 When discounting documents in such circumstances, the Board should take into account the explanation, if any, given by the claimant.Note 242
Where there is insufficient evidence to call into question the authenticity of a document it is not open to the Board to conclude it is not genuine.Note 243 The Federal Court has held that documents issued by a foreign government are presumed to be authentic,Note 244 unless evidence (external to the document) is produced to prove otherwise or the Board is able to make a determination based on the contradictory evidence that calls the authenticity of the document into question.Note 245
Evidence of widespread availability of fraudulent documents in a country is not, by itself, sufficient to reject foreign documents as forgeries,Note 246 but may be relevant if there are other reasons to question the documents or a claimant's credibility.Note 247
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.Note 248
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.Note 249 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),Note 250 and on the overall credibility of a claimant.Note 251 Not every discrepancy in a document, however, will necessarily be material to the success of a claim.Note 252
If the Board wants to premise an adverse credibility finding on the fact that a claimant is lying about her age (or other condition), the relevant medical evidence must be disclosed to the claimant.Note 253
2.4.9. Medical Reports
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. Therefore, if a panel does not believe the underlying facts, it may discount a medical report in light of that finding.Note 254
While the Board may determine what weight, if any, to give to a psychological report, not being an expert tribunal in the area of psychological assessment it cannot reject a psychologist's diagnosis. In Zapata,Note 255 the Federal Court stated:
The CRDD must give appropriate weight to professional opinion directly related to the [claimant] before it and to the documentary evidence that, read together with the professional opinion, is corroborative of the position of the [claimants] or, put another way, that reflects the impact of the case specific professional opinion.
The Court found, in that case, that a medical report cannot be rejected solely for the reason that the conclusion made therein is based on what was related to the doctor by the claimant, when it is clear from the report that the doctor's own professional observation of the claimant was material to the conclusion reached.Note 256
The Federal Court has also held that, where a professional opinion as to the psychological state of the claimant and whether he was suffering from post-traumatic stress disorder is submitted, it cannot be rejected on the grounds that the doctor could not corroborate specifically the incidents related by the claimant.Note 257
A medical report cannot be rejected for the sole reason that it does not indicate that the only possible cause of the injury in question is that related by the claimant. It is sufficient that the report finds that the injury in question is consistent with the cause specified by the claimant.Note 258
Where a psychiatric report speaks to a medical condition that may impact on the claimant's behaviour or ability to provide coherent testimony, that factor should be considered by the Board when assessing the claimant's testimony.Note 259 However, the RPD is not required to to the opinion of the author of the report, especially on matters such as the claimant's credibilityNote 260 which the panel must assess independently. The absence of a medical report that diagnoses an alleged cognitive difficulty may be considered by the Board in assessing a claim.Note 261
Even if the Board considers a claimant not to be credible, it must still consider the documentary evidence. The need for the panel to refer, in its reasons, to medical and psychiatric reports filed in evidence will depend on the quality of that evidence and the extent to which it is central to the claim.Note 262 Where the medical report is cogent and 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.Note 263
2.5. ALLOWING THE CLAIMANT TO CLARIFY CONTRADICTIONS OR INCONSISTENCIES IN THE TESTIMONY
2.5.1. General Principle
Generally speaking, there is no obligation on the tribunal to signal its conclusions on the general credibility of the evidence.Note 264 In some cases, however, failure to examine a witness on some material part of his or her evidence has been treated as an acceptance of the truth of that part of the evidence.Note 265
2.5.2. Confronting the Claimant with Contradictions or Inconsistencies Internal to the Claimant's Testimony
The Federal Court has held, in Gracielome and other cases, that the Board should afford the claimant (and any other witness) an opportunity to clarify the evidence and to explain apparent contradictions or inconsistencies within that person's testimony.Note 266
The same principle applies to inconsistencies between the claimant's oral testimony and the Personal Information Form (PIF) or port of entry notes, as well as with respect to omissions therein.Note 267
In a number of more recent decisions, the Federal Court—Trial Division has moved away from a rote application of this principle.Note 268 In Tanase,Note 269 the Trial Division interpreted Gracielome to stand for the proposition that,
where a claimant is not confronted by a panel with alleged contradictions or asked for explanations prior to a decision on credibility being made, the reasons for showingence to the panel are severely diminished as it is no better position to weigh the contradictions than is the Court. This proposition does not imply, however, that the duty of fairness requires a panel to alert a claimant to a potentially adverse credibility finding in every case or in matters of trivial importance.
In Ngongo,Note 270 the Federal Court—Trial Division set out a list of factors to consider in deciding whether the Board is required, in a particular case, to confront the claimant with contradictions in his or her testimony.
In my view, regard should be had in each case to the fact situation, the applicable legislation and the nature of the contradictions noted. The following factors may serve as guidelines:
- Was the contradiction found after a careful analysis of the transcript or recording of the hearing, or was it obvious?
- Was it in answer to a direct question from the panel?
- Was it an actual contradiction or just a slip?
- Was the [claimant] represented by counsel, in which case counsel could have questioned him on any contradiction?
- Was the [claimant] communicating through an interpreter? Using an interpreter makes misunderstandings due to interpretation (and thus, contradictions) more likely.
- Is the panel's decision based on a single contradiction or on a number of contradictions or implausibilities?
In Veres,Note 271 the Federal Court drew a further distinction for omissions in the evidence where the Board, as a time saving measure, proceeds directly to questioning by the Refugee Claim Officer (now Refugee Protection Officer) without having the claimants put their case orally in chief. In such cases, it is unfair to reproach the claimants for having failed to provide some piece of evidence unless they have noticed that they are at risk on the issue. The failure of counsel to object to the procedure chosen by the Board does not affect this result. The circumstances will dictate the extent to which the Board must ask specific questions.
As noted by the Court of Appeal in Owusu-Ansah, the Board cannot ignore evidence explaining apparent inconsistencies and then make an adverse credibility finding. Evidence provided by the claimant should be acknowledged in the reasons for decision and the RPD should explain why the evidence was rejected, if that is the case.Note 272 The explanation provided by the claimant must have been unreasonable or otherwise unsatisfactory to reject the claimant's testimony on the basis of credibility.Note 273
2.5.3. Confronting the Claimant Where the Testimony is Vague
With respect to a lack of detail in the claimant's account, in Danquah,Note 274 the Federal Court stated:
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 grounds.
Similarly, in Kutuk,Note 275 the Federal Court held that the Board is not obliged to confront a claimant with the vagueness of his or her evidence.
2.5.4. Confronting the Claimant with Documentary Evidence
The Court of Appeal stated in Zhou that
There is no general obligation on the Board to point out specifically any and all items of documentary evidence on which it might rely.Note 276
In Osei,Note 277 where the credibility concern was not related to contradictions or inconsistencies internal to the claimant's testimony, but rather to an assessment of the claim in light of the documentary evidence concerning country conditions, the Federal Court stated:
I do not think [the Tribunal] was required to inform the [claimant], before finally rendering its decision, that it doubted the existence of the D.M.L.G. and give the [claimant] an opportunity to respond to that conclusion. I think that this is a different kind of situation from conflicting evidence coming out of the [claimant's] own mouth. In the latter situation, the Tribunal is expected generally to confront the [claimant] with the contradictions.
The Federal Court arrived at a similar conclusion in other cases.Note 278
However, where personal or other claimant-specific documents are in issue, the Federal Court has taken diverse approaches and has often required that the claimant be afforded an opportunity to explain concerns raised by the Board.Note 279
Where additional documentary evidence is sought or submitted after the hearing has concluded and while the decision is under reserve, the RPD should generally provide the claimant an opportunity to comment on that evidence. Where the evidence goes to a matter that is central to the claim, absent a proper waiver or express consent, the RPD should reconvene the hearing for that purpose before making a negative finding of credibility.Note 280
2.5.5. Confronting the Claimant Where There Are Implausibilities
Generally speaking, there is no obligation on the Board to put its concerns with respect to plausibility to the claimant. The Federal Court has held that the Board is under no obligation to alert the claimant of its concerns about weaknesses of testimony giving rise to implausibilities,Note 281 unless perhaps the incosistency is at the heart of the claim.Note 282
However, the Federal Court stated in NkrumahNote 283 that
where 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.
Some decisions of the Federal Court also hold that the claimant should have been afforded an opportunity to explain why the claimant or others behaved in a particular way.Note 284
In Arumugam,Note 285 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.
2.6. TAKING THE CHARACTERISTICS OF THE PROCESS INTO ACCOUNT
2.6.1. Hearing Procedures
The refugee determination process is one that is not like 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 and it may involve the use of the Board members' "specialized knowledge". Almost all of the oral evidence is received through the filter of interpreters. The end result of all of these "unusual" characteristics is that the process is fraught with the possibility of misunderstanding, even among people acting in good faith.Note 286
2.6.2. Special Circumstances of the Claimant
The following factors or circumstances may influence the claimant's ability to observe and recall events in the course of a hearing: nervousness caused by testifying before a tribunalNote 287; the claimant's psychological condition (such as post-traumatic stress disorder) associated with traumas such as detention or tortureNote 288; the claimant's young age;Note 289 cognitive difficulties and the passage of time;Note 290 gender considerations;Note 291 the claimant's educational backgroundNote 292 and social position;Note 293 and cultural factors.Note 294 The RPD must therefore take into account all of these "unusual" characteristics when assessing the credibility of the claimant's or a witness's evidence.
2.6.3. Assessing the Evidence
The Federal Court has cautioned Board members not to display excessive zeal in an attempt to find contradictions in the claimant's testimony.Note 295 In Attakora, the Court of Appeal recognized that, while members have a difficult task when assessing credibility, the Board "should not be over-vigilant in its microscopic examination of persons who…testify through an interpreter and tell tales of horror in whose objective reality there is reason to believe."Note 296
In Mensah, the Federal Court made it clear that it is important that the claimant not be placed in a "Catch 22" situation by finding that the claimant is not credible if either too many details or not enough details are provided.Note 297
In order to avoid factual errors (caused by delay) and the questioning of credibility decisions by the Court for this reason, in Sasan, the Federal Court cautioned the Board to ensure that its decisions are issued in a timely manner.Note 298
2.6.4. Questioning by the Board Member and Refugee Protection Officer
RPD members may ask questions in order to clarify the evidence, to request explanations of the claimant, and to disclose their concerns, thus giving the claimant an opportunity to respond to those concerns.Note 299
RPD members have a duty to get at the truth concerning the claims they hear.Note 300 Thus, extensive and even "energetic" questioning of the claimant by the members, especially in the absence of a Refugee Protection Officer, can be proper and does not constitute grounds for a finding of a reasonable apprehension of bias.Note 301 Members must, however, remain objective, dispassionate and impartial,Note 302 and not subject the claimant to constant interruptions, animosity or offensive remarks.Note 303
In Yusuf,Note 304 the Court of Appeal reaffirmed the following principles:
- Board members have the right to cross-examine the witnesses they hear but there are limits (p. 683);
- Interruptions during examination-in-chief for purposes of clarifying the answers given are permissible (p. 633);
- The tone and content of questions must be judicious (p. 633);
- Harassing comments to the witnesses and unfair questions to a witness are not acceptable; this type of cross-examination would not be permitted in an adversarial proceeding (p. 636).
What is permissible behaviour, including the scope and manner of questioning by a Board member, depends on the particular facts of each case.Note 305 Thus, there may be circumstances where the questioning is excessive or overly aggressive or the interventions are improper (for example, making inappropriate comments or demonstrating an unfavourable attitude).Note 306
Sometimes, rather than clarifying, questioning by Board members has resulted in considerable confusion.Note 307 Such interventions may give rise to an apprehension of bias on the part of the tribunal and to a breach of natural justice.
Refugee Protection Officers have the right to question (cross-examine) the claimantNote 308 and may, if directed by the RPD, question the claimant first.Note 309 Their questioning must not, however, overstep the bounds of what is appropriate cross-examination.Note 310 Refugee Protection Officers are entitled to make submissions on the merits of the claim and to alert the Board as to issues of credibility.Note 311
The Chairperson's Guideline Concerning Preparation and Conduct of a Hearing in the Refugee Protection DivisionNote 312 provides:
19. In a claim for refugee protection, the standard practice will be for the RPO to start questioning the claimant. If there is no RPO participating in the hearing, the member will begin, followed by counsel for the claimant. Beginning the hearing in this way allows the claimant to quickly understand what evidence the member needs from the claimant in order for the claimant to prove his or her case.
The Guideline also addresses the order of questioning in other situations (where the Minister intervenes on an issue other than exclusion; where the Minister intervenes on the issue of exclusion; in an application to vacate or cease refugee protection), and allows the Member to vary the order of questioning in exceptional circumstances. These provisions are effective (mandatory) as of June 1, 2004, but a change in the order of questioning can be implemented as of December 1, 2003 with the consent of the parties.
While it is permissible in certain circumstances for RPD members to do their own research into the facts of a case,Note 313 a member should not secretly initiate a search for evidence which it then intends to use as a basis for questioning the claimant.Note 314
Alleged breaches of natural justice, such as an apprehension of bias arising out of improper questioning or conduct by a Member or RPO, should be raised at the earliest practicable opportunity, that is generally before the Member at the RPD hearing.Note 315
2.6.5. The Filter of an Interpreter
The Federal Court has addressed the point that Board members must take into account the fact that the claimant is heard and questioned through an interpreter and that innocent misunderstandings are possible.Note 316
Therefore caution should be exercised especially when comparing statements made by a claimant while testifying on different occasions through different interpreters. The same considerations apply to a PIF completed by a claimant with poor language skills.Note 317
Board members must ensure that the interpreter is competent and provides a complete and accurate rendering of the testimony.Note 318 Members have the responsibility to ensure that any interpretation or communication problems that arise at the hearing are addressed and cleared up.Note 319