Category Archives: Evidence

Implausibility

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One issue that applicants, and in particular refugee claimants, face is that their stories just sound implausible to the third party observer.

A tribunal is entitled to make reasonable findings based on implausibilities, common sense and rationality.  The courts have been clear that the Immigration and Refugee Board is entitled in assessing credibility to rely on criteria such as rationality and common sense.  In order to finding an applicant’s or claimant’s story to be implausible,  it must be clearly out of line with known facts or known norms of behavior.

Of course, it is not sufficient for a tribunal to simply state that a claimant’s story is “implausible” without explaining further the reasoning behind that finding.  In other words, as the Federal Court ruled in Vodics v Canada (Minister of Citizenship and Immigration), 2005 FC 783, adverise findings of credibility must be based on reasonably drawn inferences and not conjecture or mere speculation.

Of course, 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.

Consistency on Findings of Credibility

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Flickr photo by Jeff Sari (writer)

A huge concern amongst applicants who have previously submitted applications or documentation to a decision maker is whether their further submissions will contradict what they previously submitted, and whether this will materially negatively impact their credibility.

In short, the existence of contradictions or inconsistencies in the evidence of an individual or witness is a well-accepted basis for a finding of lack of credibility.  However, the discrepancies must be sufficiently serious and must concern matters that are relevant to warrant an adverse finding.

In Sheikh, Asad Javed v. Canada (Minister of Citizenship and Immigration), the Federal Court stated the following regarding the factors that should be considered when assessing inconsistencies or discrepancies:

The discrepancies relied on by the Refugee Division must be real. 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”. The alleged discrepancy or inconsistency must be rationally related to the [claimant's] credibility. Explanations which are not obviously implausible must be taken into account.

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 and must not be exaggerated.

[Citations removed.]

Finally, the Federal Court has cautioned, however, that, as between different cases, “[t]here can be no consistency on findings of credibility.” Credibility cannot be prejudged and is an issue to be determined by tribunal members in each case based on the circumstances of the individual claimant and the evidence.

Given the jurisprudence, it is generally far better to provide the supporting documentation than it is to be concerned about impacts on credibility.

Considering the Evidence in its Entirety

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Flickr photo by Monica, M

One of the most common reasons for seeking judicial review is because of concerns that a tribunal did not consider an applicant’s evidence in its entirety.

The jurisprudence is clear that when assessing the credibility of an individual, tribunals have to consider and assess all of the evidence, both oral and documentary, and not just selected portions of it.  Tribunals cannot selectively refer to evidence that supports their conclusions without also referring to evidence to the contrary.  For example, the Court is likely to intervene in a tribunal decision which does not refer to documentary evidence which support’s an individual’s testimony, but does selectively rely on documentary evidence to negate it: Orgona, Eva v. MCI  

Furthermore, when a tribunal assesses all of the evidence, the tribunal must assess it together, not parts of it in isolation from the rest of the evidence.  Evidence should be treated in a consistent manner.  For example, in Bosiakali, Mbokolo v. Canada (Minister of Citizenship and Immigration), the Court found that the tribunal breached procedural fairness where it did not reconcile the testimony of a daughter, which the tribunal found to be credible, and which supported her mother’s testimony, with the testimony of the mother, which was rejected due to lack of credibility.

It is also important that a tribunal not just concentrate on exaggerations.  As noted in Djama, Idris Mohamed v. Canada (Minister of Employment and Immigration), a tribunal will err if it allows itself to become so fixated on the details of a refugee claimant’s testimony that it forgets the substance of the facts on which the refugee claimant’s claim is made.  (This of course does not mean that a decision-masker should disregard aspects of the evidence that are not favourable to the claimant.)   A panel simply cannot just 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 Presumption 

A tribunal is presumed to have taken all of the evidence into consideration whether or not it indicates having done so in its reasons.  Even the inclusion of “boilerplate” reasons or assertions may not be sufficient to prevent this inference.  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.

However, as explained inCepeda-Gutierrez, 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.

 

 

The Benefit of the Doubt

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Flickr photo by Stuck in Customs

One of the most muddled and confusing areas of Canadian immigration law is the jurisprudence surrounding what standard a decision maker will apply in determining whether to believe an applicant’s or a claimant’s story.

Generally, if an applicant’s account appears to be credible, then a decision maker will, unless there are good reasons to the contrary, give that applicant (or claimant) the benefit of the doubt.

However, this is not always the case.  The Supreme Court addressed the benefit of the doubt at length in Chan v. Canada (Minister of Employment and Immigration).  There, the Court wrote that:

[The dissenting judge] 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 added.]

All the available evidence shows that the Chinese authorities attempt to persuade couples with more than one child to submit to sterilization by psychological, social and financial pressure, including heavy fines.  The primary agent of enforcement is the woman’s work unit but such measures can include other family members specifically in the case of government controlled licences such as driver’s licences.  The generally known facts also suggest that some, but not all, local authorities exceed these measures and resort to physical compulsion primarily against women.

In this case, the appellant’s testimony shows that psychological pressure was applied by frequent visits by the PSB and that financial pressure was applied by means of a heavy fine and termination of his wife’s work permit.  The appellant’s testimony is that he gave written consent to sterilization within three months in order to avoid further psychological or financial pressure.  Subsequent to the expiry of the three-month period, the evidence shows that the authorities took no steps to force the sterilization of the appellant’s wife, that they significantly reduced the fine and that they renewed the appellant’s driver’s licence.

All of these facts, particularly when taken collectively, run directly counter to all the available evidence as to the behaviour to be expected of the authorities if their intention was to coerce the appellant physically to be sterilized.  The available evidence establishes that Chinese authorities intent on physical coercion in contravention of “official” government policy would first exhaust all other means of coercion.  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.  The appellant’s evidence is more consistent with the appellant’s later comment that the major concern of the local officials was the loss of their bonus owing to the breach of the one-child policy, a concern which presumably would have been substantially alleviated by the payment of the stiff fine imposed by those authorities.

Put simply, and as I articulated to a client yesterday, unless there is good reason for a decision maker to not believe what they are saying, their testimony will generally be accepted, given the “benefit of the doubt” principle.

Secret Evidence Used Against Me? (On Extrinsic Evidence) [Updated]

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Where immigration officers have extrinsic evidence particular to an applicant, and that applicant is unaware that the immigration officer has that evidence, then procedural fairness requires that immigration officers disclose this evidence to the applicant.

Two recent Federal Court decisions affirm this principle.

In Zaib v. Canada (Citizenship and Immigration), 2010 FC 769, a visa officer became concerned with the legitimacy of an applicant’s educational credentials. The immigration officer asked the applicant to provide documentary confirmation of his degree. The officer then received a letter purportedly from the applicant’s university, the University of Punjab. When the officer contacted the university to ask questions about the letter, the officer was told that the letter was a fake.

The officer then sent a letter to the applicant stating that he had “reasonable grounds to believe that the degree you have submitted is fraudulent. Please provide evidence to the contrary within 30 days…”  The officer did not mention the conversation with the university.

The Court found that this breached procedural fairness. It stated that an applicant must be made aware of the “case to be met”, i.e., the information known by the officer must be made available to the applicant prior to the decision being made.

If an officer relies on extrinsic evidence (i.e., evidence received from sources other than the applicant), they must give the applicant an opportunity to respond to such evidence.

The Court noted that the officer never asked the University of Punjab to verify whether or not the applicant’s degree was real. He only expressed concerns over whether the letter was real. His refusal letter, however, was based on questions about the degree, not the letter.

In Akinmayowa v. Canada (Citizenship and Immigration), 2011 FC171, the applicant applied under humanitarian & compassionate grounds. As noted by the Court, the officer deciding the application had received a letter which stated:

This letter to the Immigration Case Processing Centers in Mississauga and Vegreville from an anonymous source calling itself “CONCERNED NIGERIAN/CANADIANS, TORONTO”, states, and I paraphrase:

1) the marriage between the applicant and her husband “should not be given a favourable consideration due to its illegal nature;

2) the applicant is married to a prominent business man in Nigeria and “there was no problem whatsoever within the family”. The story before the IRB is “fiction”;

3) The applicant arranged this marriage and paid $8,000; and

4) This is a “bogus marriage” for immigration purposes.

Like in Zaib, the Court found that the failure to disclose this extrinsic letter to the Applicant was a breach of procedural fairness.

In Kahin v. Canada (Citizenship and Immigration), 2011 FC 1064, the Respondent argued that a visa officer did not have a duty to disclose the results of his investigation because the applicant should have anticipated that the officer might seek to verify the information that he submitted.  However, Justice Barnes found that the information nonetheless had to be disclosed because “the information relied upon here might well be wrong, incomplete, or open to explanation.”

As Justice Barnes noted in citing the Federal Court’s decision in D.K. v. Canada:

The Officer may have been right in concluding that the post-hearing material was of no value and may have been fraudulent but that is not the point. The point is that the applicant and her counsel had no opportunity to comment on the evidence which the officer herself obtained and relied on to render the decision she reached.

Translating Errors Lead to Successful Judicial Review

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In a previous post I introduced some judicial principles regarding the role of translators in proceedings before the Immigration and Refugee Board.

There, I wrote that:

Section 14 of the Charter of Rights and Freedoms provides that a party or witness to any proceeding who does not understand or speak the language in which the proceeding is conducted or who is deaf has the right to the assistance of an interpreter. This section applies to immigration and other administrative proceedings. (Umubyeyi v. Canada). Accordingly, the IRB and the courts take the right to proper interpretation seriously.

A person appearing before the IRB has a right to an interpretation that is continuous, precise, competent, impartial, and contemporaneous (Mohammadian). An applicant does not have the burden to show that a determinative prejudice arises from a breach of his Charter right to such interpretation.

Singh v Canada (Minister of Citizenship and Immigration), 2010 FC 1161,  provides a more comprehensive summary of the common law principles governing translation.  These principles are that:

a.         The interpretation must be precise, continuous, competent, impartial and contemporaneous.

b.         No proof of actual prejudice is required as a condition of obtaining relief.

c.         The right is to adequate translation not perfect translation. The fundamental value is linguistic understanding.

d.         Waiver of the right results if an objection to the quality of the translation is not raised by a claimant at the first opportunity in those cases where it is reasonable to expect that a complaint be made.

e.         It is a question of fact in each case whether it is reasonable to expect that a complaint be made about the inadequacy of interpretation.

f.         If the interpreter is having difficulty speaking an applicant’s language and being understood by him is a matter which should be raised at the earliest opportunity.

Was the Issue Raised?

A defense that is often used in response to arguments about inadequate translation is that the argument cannot result in a decision being set aside if the applicant did not sufficiently raise the translation issue at the hearing.

However, where a review of the audio recording from a hearing reveals serious interpretation errors, the failure to raise the issue of interpretation at the hearing does not preclude it from being raised in a judicial review proceeding: Khalit Ahamat Djalabi v. Canada (Minister of Citizenship and Immigration), 2007 FC 684

Where an applicant has raised the issue of inadequate translation at a hearing, the Federal Court has been flexible in terms of what it considers to be “sufficient raising of the issue.”  In Neheid v. Canada, 2001 FC 846, the claimant’s daughter had attempted to raise the issue, however, the Board Member “ordered [her] to be quiet”.  The Department of Justice appears to have argued that the claimant should have done more to raise the issue, although the judgment does not specify exactly what the Respondent suggested the claimant do.  Justice Phelan disagreed.  In a particularly interesting passage he stated that:

[g]iven the dependent position an applicant is in before the Board, and the total dependency of counsel on the translation, it is not reasonable to expect the Applicant to have done more.

Finally, a Board Member’s statement that the translation was adequate will be given very little weight if that Board Member does not speak the language that was being translated: Coya v. Canada (Citizenship and Immigration).

Was the Mis-Translation Material 

In order for a translating error to cause a breach of natural justice the mistranslation must be material.  For example, mistranslating “evidence” as “proof” is not sufficient to cause a breach of natural justice.

When an Administrative Delay is an Abuse of Process

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The subject of an unreasonable delay often arises in the immigration context.  In one case that I am involved with, an individual was in Canada for 11-years before the Canada Border Services Agency expressed concerns that the might be inadmissible to Canada for previous involvement in a group accused of terrorism.  In another case, an individual who had been in and out of Canada numerous times was suddenly denied entry to Canada because of a criminal conviction that occurred eight years ago.  In both cases, the client asked whether the delay amounted to an abuse of process.

Blencoe

The leading court decision on this issue is Blencoe v. British Columbia (Supreme Court of Canada, 2000).  There, three women filed complaints of sexual harassment to the British Columbia Human Rights Council.  Due to delays the tribunal hearings were not resolved for 30 months after the first filing.  The Cabinet Minister challenged that the 30 month delay was an abuse of process, an argument which the Supreme Court of Canada ultimately rejected and that the Charter was not engaged.  Importantly, the Court found that a state caused delay, without more, does not warrant a stay as an abuse of process at common law, and that there must be significant prejudice.

The following principles emerged from that decision:

  • The administrative process must be conducted in a manner entirely consistent with the principles of natural justice and procedural fairness.
  • Unreasonable delay is a possible basis on which to raise questions of natural justice, procedural fairness, abuse of process and abuse of discretion.
  • Delay, without more, will not warrant a stay of proceedings as an abuse of process.
  • Administrative delay may impugn the validity of the proceedings where it impairs a party’s ability to answer the complaint against him or her – where memories have faded, essential witnesses are unavailable, or evidence has been lost.
  • Where the fairness of the hearing has not been compromised, delay may nevertheless amount to an abuse of process, but few lengthy delays will meet this threshold.
  • The court must be satisfied that, “the damage to the public interest in the fairness of the administrative process should the proceeding go ahead would exceed the harm to the public interest in the enforcement of the legislation if the proceedings were halted.
  • If the delay has directly caused significant psychological harm to a person, or attached a stigma to a person’s reputation, such that the [administrative] system would be brought into disrepute, such prejudice may be sufficient to constitute an abuse of process.
  • Determination of whether the delay is unreasonable is, in part, a relative exercise in which one compares the length of delay in the case at bar with the length of time normally taken for processing in the same jurisdiction and in other jurisdictions in Canada.

The Immigration Context

Beltran v. Canada (2011 FC 516) provides an example of the application of Blencoe in the immigration context.  There, the Canadian Security Intelligence Services had determined that an individual was not a threat to Canada’s national interest.  Fourteen years later, without any explanation, and without any explanation, a new individual expressed concerns, causing delays.  The court also found that a new investigation caused undue prejudice to Mr. Blencoe.  The Court was also critical of the government’s decision not to reveal certain information that it had kept confidential for twenty years, only to use it later.

Converting from Judicial Review to an Action

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Clients often ask me why federal court actions are limited to judicial reviews.  They want to know why it is that they can introduce new evidence and call witnesses at the Immigration Appeal Division, an administrative tribunal, but not in court.

There are numerous reasons why federal court actions are limited to judicial review.

The first is because immigration decisions take place in the context of administrative law.  Because the court is simply reviewing the reasonableness of an administrative tribunal’s decision (be it a visa officer or the Immigration Appeal Division), it is not necessary to hear fresh evidence.  The second is to facilitate access to justice and avoid unnecessary cost and delay.  The third is that many people who would be called as witnesses in a normal action are not eligible to enter Canada.  Finally, applicants are always able to re-apply.

Converting to an Action

Although federal court actions for immigration decisions generally occur in the context of judicial review, s. 18.4(2) of the Federal Court Act provides that the court may, if it considers it appropriate, direct that an application for judicial review be treated and proceeded with as an action.

Section 18.4(2) is a response to concerns that judicial review does not always provide appropriate procedural safeguards where declaratory relief is sought.  It addresses not only the procedural shortcomings of an application, but also the remedial ones including the inability to claim damages on judicial review.

There are no limits on the considerations which may be taken into account in deciding whether to allow a judicial review application to be converted into an action.  The test of whether to convert to an action is whether affidavit evidence will be adequate, and not whether trial evidence might be superior.

Examples of Cases that were Converted

As shown below, the facts of a case must be particularly spectacular for an immigration judicial review to be converted into an action.

Sivak v. Canada (2011 FC 402)

  • There were serious concerns of institutional bias.  The rules of cross-examination of affidavits had not produced the evidence that was required to determine whether there was such a bias.  Judicial review did not contain any procedures to address this issue.