- Note 1
S.C. 2001,
c. 27. The
IRPA was proclaimed on November 1, 2001 and came into effect on June 28, 2002. "Convention refugee" is defined in
s. 96 and "person in need of protection" in
s. 97 of that Act. The definition of "Convention refugee" has not been changed in substance.
Return to note 1 referrer
- Note 2
Nyathi, Sehlule
v.M.C.I. (F.C.,
no. IMM-5122-02), Blanchard, September 30, 2003, 2003
FC 1119.
Return to note 2 referrer
- Note 3
R.S.C. 1985 (4th Supp.),
c. 28.
Return to note 3 referrer
- Note 4
See also
IRB Legal Services,
Weighing Evidence, December 31, 2003.
Return to note 4 referrer
- Note 5
Yabe, Said Girre
v.M.E.I. (F.C.A.,
no. A-945-90), Hugessen, Desjardins, Ltourneau, March 17, 1993;
M.E.I.v. Boampong, Sheikh Jedges (F.C.A.,
no. A-1219-91), Isaac, Marceau, McDonald, August 6, 1993.
Return to note 5 referrer
- Note 6
Frimpong
v. Canada (Minister of Employment and Immigration) (1989), 8
Imm. L.R. (2d) 183 (F.C.A.);
Canada (Minister of Employment and Immigration)
v. Satiacum (1989), 99
N.R. 171 (F.C.A.);
Vallejo, Juan Ernesto
v.M.E.I. (F.C.A.,
no. A-799-90), Mahoney, Stone, Linden, March 26, 1993.
In
Satiacum,
supra, at 179, MacGuigan
J.A. cited Lord Macmillan in
Jones
v. Great Western Railway
Co. (1930), 47
T.L.R. 39, at 45, 144
L.T. 194, at 202 (H.L.), for an explanation of the distinction between a reasonable inference (which a decision-maker is entitled to draw) and pure conjecture (which is not permissible):
The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference.
In
Mahalingam, Shyama Ushandhini
v.M.C.I. (F.C.T.D.,
no. IMM-833-97), Gibson, January 30, 1998, Reported:
Mahalingam
v. Canada (Minister of Citizenship and Immigration) (1998), 44
Imm. L.R. (2d) 210 (F.C.T.D.), the Court found that the panel, which had used words such as "we feel", had made a speculative finding—for which it cited no evidence—that the police would not again humiliate or harass her.
Return to note 6 referrer
- Note 7
Maldonado
v. Canada (Minister of Employment and Immigration), [1980] 2
F.C. 302 (C.A.).
Return to note 7 referrer
- Note 8
Dan-Ash
v. Canada (Minister of Emplyment and Immigration) (1998), 93
N.R. 33 (F.C.A.).
Return to note 8 referrer
- Note 9
Orelien
v. Canada (Minister of Employment and Immigration)
, [1992] 1
F.C. 592 (C.A.), at 605, per Mahoney
J.A.
Return to note 9 referrer
- Note 10
Sathanandan
v. Canada (Minister of Employment and Immigration) (1991), 15
Imm. L.R. (2d) 310 (F.C.A.);
Bains
v. Canada (Minister of Employment and Immigration) (1993), 20
Imm. L.R. (2d) 296 (F.C.T.D.);
Chan
v. Canada (Minister of Employment and Immigration), [1995] 3
S.C.R. 593.
Return to note 10 referrer
- Note 11
Chaudri
v. Canada (Minister of Employment and Immigration) (1986), 69
N.R. 114 (F.C.A.)
;
M.E.I.v. Jawhari, Sari (F.C.T.D.,
no. T-1477-92), Denault, December 16, 1992;
Handal, Sandra Iris Rencinos
v.M.E.I. (F.C.T.D.,
no. 92-A-6875), Nol, June 10, 1993.
Return to note 11 referrer
- Note 12
Oduro, Ebenezer
v.M.E.I. (F.C.T.D.,
no. IMM-903-93), McKeown, December 24, 1993. See also
Santizo, Carlos Ulin
v.M.E.I. (F.C.T.D.,
no. IMM-1093-93), Gibson, April 22, 1994.
Return to note 12 referrer
- Note 13
Issued by the United Nations Office of the High Commissioner for Refugees, Geneva, January 1988.
Return to note 13 referrer
- Note 14
Chan
v. Canada (Minister of Employment and Immigration), [1995] 3
S.C.R. 593.
Return to note 14 referrer
- Note 15
Ibid., at 669-71. The dissenting analysis, to which the aforementioned majority reasons refer, is set out, in part, below. The dissenting justices, at 627, found that the claimant's account did not run contrary to the available evidence and generally known facts; consequently, it was appropriate in their view to apply the benefit of the doubt:
The [claimant's] account of events so closely mirrors the known facts concerning the implementation of China's population policy that, given the absence of any negative finding as to the credibility of the [claimant] or of his evidence, I think it clear that his quite plausible account is entitled to the benefit of any doubt that may exist. With respect, I see no merit in the approach taken by some members of the court and by my colleague Major
J. to seize upon sections of the [claimant's] testimony in isolation. Indeed, I find such a technique antithetical to the guidelines of the
UNHCR Handbook (see paragraph 201).
Return to note 15 referrer
- Note 16
Sedigheh, Ghahramaninejad
v.M.C.I. (F.C.T.D.,
no. IMM-1213-02), Snider, February 11, 2003; 2003
FCT 147.
Return to note 16 referrer
- Note 17
Ayimadu-Antwi, Yaw
v.M.C.I. (F.C.T.D.,
no. IMM-4821-94), Simpson, May 10, 1995. This was reiterated in
Bains, Iqbal Singh
v.M.C.I. (F.C.T.D.,
no. IMM-2055-94), Muldoon, August 25, 1995, at pages 11-12: "So it is that credibility is always in issue. So it is that no one should ever be deceived about credibility always being in issue." See also
Paranawithana, Tissa Rupananda
v.M.C.I. (F.C.T.D.,
no. IMM-670-96), Heald, November 21, 1996.
Return to note 17 referrer
- Note 18
In
Abubakar, Suadh
v.M.C.I. (F.C.T.D.,
no. IMM-422-98), Campbell, July 31, 1998, Reported:
Abubakar
v. Canada (Minister of Citizenship and Immigration) (1998), 45
Imm. L.R. (2d) 186 (F.C.T.D.), the Court held the
CRDD erred in not giving notice of the importance of an issue—namely the claimant's identity, "which forms the heart of its decision"—which did not seem important to counsel at the time. See also, to the same effect,
Lembagusala, Sungi Chantal
v.M.C.I. (F.C.T.D.,
no. IMM-3593-99), Campbell, April 20, 1999. In
Ali, Nawal El
v.M.C.I. (F.C.T.D.,
no. IMM-3327-00), Dawson, April 27, 2001, 2002
FCT 405, the Court held that the
CRDD violated the principles of natural justice when it relied on the issues of delay and failure to claim elsewhere without giving the claimant notice. (The breach of natural justice, however, did not affect the final decision of the
CRDD in the circumstances of that case.)
Return to note 18 referrer
- Note 19
Velauthar, Navaaneethakrishnan
v.M.E.I. (F.C.A.,
no. A-350-90), Mahoney, Hugessen, Gray, May 8, 1992. See also
Perera, Nandasena
v.M.E.I. (F.C.T.D.,
no. IMM-4381-93), Wetston, August 10, 1994;
Mark, Pramakanthan
v.M.E.I. (F.C.T.D.,
no. A-1272-92), Teitelbaum, June 1, 1994;
Thiara, Ravinder Singh
v.M.C.I. (F.C.T.D.,
no. IMM-1353-96), MacKay, March 6, 1996;
Butt, Sarmad Zahoor
v.M.C.I. (F.C.T.D.,
no. IMM-475-97), MacKay, March 6, 1998. In
Kante, Abdoulaye
v.M.E.I. (F.C.T.D.,
no. IMM-2585-93), Nadon, March 23, 1994, the Court stated that if the
CRDD is satisfied with certain aspects of the claimant's evidence, it should so indicate clearly on the record before making suggestions or asking the claimant's counsel not to question his or client in regard to issues which counsel may consider relevant. In
Griffith, Marion
v.M.C.I. (F.C.T.D.,
no. IMM-4543-98), Campbell, July 14, 1999, during the hearing the
CRDD stated that credibility was not in issue, but in rejecting the claim, the
CRDD seriously impugned the claimant's credibility and thereby denied natural justice.
In
Derbas, Ahmad Issa
v.S.G.C. (F.C.T.D.,
no. A-1128-92), Pinard, August 18, 1993, the Court stated: "the Board did not violate the requirements of natural justice by telling the [claimant] he was credible and needed not call further evidence, and then rejecting his claim on the ground there was no objective foundation for the expressed fear." In
Mohamed, Kamil
v.M.C.I. (F.C.T.D.,
no. IMM-2445-96), Muldoon, August 27, 1997, the Court found that accepting the fear of persecution in the Eastern Province did not preclude the
CRDD from assessing the general credibility of the claimant on the particular evidence relating to his experiences there." In
Sivagnanam, Sitha
v.M.C.I. (F.C.T.D.,
no. IMM-2357-97), Pinard, April 17, 1998, the Court held that the
CRDD member's comment, during the hearing, that the information "does no more than cast a shadow," did not preclude that member from forming a different opinion once he had time to fully consider the evidence. In
Jezly, Roshan Mohamed
v.M.C.I. (F.C.T.D.,
no. IMM-2721-98), Cullen, June 2, 1999, the Court held that the
CRDD's finding that the claimant was not in the area of the country he alleges he was in, did not mean that the panel found identity to be an issue after having indicated that it was not an issue.
Return to note 19 referrer
- Note 20
Sivamoorthy, Sivasothy
v.M.C.I. (F.C.T.D.,
no. MM-2112-02), Russell, April 8, 2003, 2003
FCT 408. In
Augustine, Sylvester Sri Rajakulendran
v.M.C.I. (F.C.T.D.,
no. IMM-2732-97), Teitelbaum, July 15, 1998, the Court overturned the
CRDD decision, based on credibility, because counsel may have misunderstood what the panel meant when they said that they would not discuss the issue of personal identity.
Return to note 20 referrer
- Note 21
Liu, Zhi Gan
v.M.C.I. (F.C.T.D.,
no. IMM-3143-96), Gibson, August 29, 1997, Reported:
Liu
v. Canada (Minister of Citizenship and Immigration) (1997), 40
Imm. L.R. (2d) 168 (F.C.T.D.). See, however,
Mandar, Kashmeer Singh
v.M.C.I. (F.C.T.D.,
no. IMM-4605-96), Reed, October 3, 1997, where the issue of identity was raised by the
RCO at the end of the hearing, although the panel had indicated at the outset that identity was not an issue. Since the panel did not endorse that assertion, the Court held that the claimant was entitled to assume identity was still not an issue.
Return to note 21 referrer
- Note 22
See
s. 170(e) of
IRPA.
Return to note 22 referrer
- Note 23
Joseph, Chandani
v.M.E.I. (F.C.T.D.,
no. IMM-2623-93), Cullen, March 9, 1994;
Mayeke, Yai Florence Futila
v.M.C.I. (F.C.T.D.,
no. IMM-2496-98), Tremblay-Lamer, May 5, 1999. In
Arandarajah, Murugathas
v.M.C.I. (F.C.T.D.,
no. IMM-3861-96), Rouleau, July 3, 1997, although the
CRDD indicated that identity was a serious issue, the Court found no obligation on the part of the panel to ask for evidence regarding that matter.
Return to note 23 referrer
- Note 24
Kaur, Diljeet
v.M.E.I. (F.C.T.D.,
no. 93-A-377), Nol, June 2, 1993, Reported:
Kaur
v. Canada (Minister of Employment and Immigration) (1993), 21
Imm. L.R. (2d) 301 (F.C.T.D.);
Parnian, Saeid
v.M.C.I. (F.C.T.D.,
no. IMM-2351-94), Wetston, May 19, 1995;
Papsouev, Vitali
v.M.C.I. (F.C.T.D.,
no. IMM-4619-97), Rouleau, May 19, 1999, Reported:
Papsouev
v. Canada (Minister of Citizenship and Immigration) (1999), 49
Imm. L.R. (2d) 48 (F.C.T.D.).
Return to note 24 referrer
- Note 25
Villalobos, Andrea Elizabeth Nunez
v.M.C.I. (F.C.T.D.,
no. IMM-2890-96), Teitelbaum, September 2, 1997, Reported:
Villalobos
v. Canada (Minister of Citizenship and Immigration) (1997), 40
Imm. L.R. (2d) 153 (F.C.T.D.). In
Ndombele, Joao Kembo
v.M.C.I. (F.C.T.D.,
no. IMM-6514-00), Gibson, November 9, 2001, 2001
FCT 1211, the claimant offered to make his brother available for cross-examination but the
CRDD declined the offer. The Court found no breach of fairness. The burden of proof was on the claimant and it was up to him to call the brother as a witness, but he and his counsel chose not to do so.
Return to note 25 referrer
- Note 26
Singh, Kewal
v.M.E.I. (F.C.T.D.,
no. IMM-5177-93), MacKay, September 19, 1994;
Wang, Tian Rong
v.M.C.I. (F.C.T.D.,
no. IMM-534-98), Wetston, December 17, 1998;
Katambala, Adric
v.M.C.I. (F.C.T.D.,
no. IMM-5827-98), Reed, July 19, 1999.
Return to note 26 referrer
- Note 27
Mayela, Dave Nzongo
v.M.C.I. (F.C.T.D.,
no. IMM-3776-98), Lutfy, June 18, 1999.
Return to note 27 referrer
- Note 28
In
Sarker, Jalal Uddin
v.M.C.I. (F.C.T.D.,
no. IMM-2597-97), MacKay, July 3, 1998, Reported:
Sarker
v. Canada (Minister of Citizenship and Immigration) (1998), 45
Imm. L.R. (2d) 209 (F.C.T.D.), the Court stressed that "the onus remains on the [claimant] to establish by credible evidence his claim to be considered a Convention refugee." The Board has no duty to inform a claimant that it finds the claimant's witness's evidence to be non-persuasive:
Salim, Abdul Salaam
v.M.C.I. (F.C.T.D.,
no. IMM-4080-01), Dawson, August 15, 2002, 2002
FCT 864.
Return to note 28 referrer
- Note 29
See
Rahmatizadeh, Ali
v.M.E.I. (F.C.T.D.,
no. IMM-2696-93), Nadon, April 6, 1994, where the Court held that the
CRDD "need not render an interlocutory judgment [respecting the credibility of trustworthiness of the evidence] before rendering its decision concerning the claim to refugee status." In
Pascu, Viorel
v.M.C.I. (F.C.T.D.,
no. IMM-2441-00), Nadon, May 4, 2001, 2001
FCT 436, the Court held that the
CRDD did not prejudge the issue of credibility before the completion of the hearing by reason of the fact that a member indicated disbelief in regard to certain answers given by the claimants.
Return to note 29 referrer
- Note 30
Among many Federal Court decisions, see especially
Owusu-Ansah
v. Canada (Minister of Employment and Immigration) (1989), 8
Imm. L.R. (2d) 106 (F.C.A.);
Giron
v. Canada (Minister of Employment and Immigration) (1992), 143
N.R. 238 (F.C.A.);
Abubakar, Suadh
v.M.C.I. (F.C.T.D.,
no. IMM-422-98), Campbell, July 31, 1998, Reported:
Abubakar
v. Canada (Minister of Citizenship and Immigration) (1998), 45
Imm. L.R. (2d) 186 (F.C.T.D.). In
Maruthapillai, Navaneethan
v.M.C.I. (F.C.T.D.,
no. IMM-1371-99), Pelletier, May 30, 2000, the Court pointed out that in assessing the evidence, the
CRDD is required to respect the claimant's testimony, and it cannot distort that testimony and then find it lacking in credibility.
Return to note 30 referrer
- Note 31
Larue, Jacqueline Anne
v.M.E.I. (F.C.T.D.,
no. 92-A-6666), Nol, May 13, 1993. In more recent decisions, the Federal Court has adopted "patently unreasonable" as the correct standard of review for findings of credibility. See, for example,
Horvath, Ferenc
v.M.C.I. (F.C.T.D.,
no. IMM-2203-00), Blanchard, June 4, 2001, 2001
FCT 583.
Return to note 31 referrer
- Note 32
Aguebor, Clement
v.M.E.I. (F.C.A.,
no. A-1116-11), Marceau, Desjardins, Dcary, July 16, 1993, Reported:
Aguebor
v. Canada (Minister of Employment and Immigration) (1993), 160
N.R. 315 (F.C.A.).
Return to note 32 referrer
- Note 33
In
Sommariva, Monica
v.M.C.I. (F.C.T.D.,
no. IMM-54-95), Jerome, March 28, 1996, Reported:
Sommariva
v. Canada (Minister of Citizenship and Immigration) (1996), 33
Imm. L.R. (2d) 25 (F.C.T.D.), at 27, the Court stated: "When a tribunal's impugned finding relates to the credibility of a witness, the Court will be reluctant to interfere with that finding, given the tribunal's opportunity and ability to assess the witness, her demeanour, frankness, readiness to answer, coherence and consistency, in oral testimony before it." See also
Abdurahaman, Farah Shire
v.M.E.I. (F.C.A.,
no. A-1127-82), Ryan, Stone, Hyde, November 18, 1983, Reported:
Abdurahaman
v. Canada (Minister of Employment and Immigration) (1983), 50
N.R. 315 (F.C.A.);
Singh, Jasvir
v.M.E.I. (F.C.A.,
no. A-1272-82), Mahoney, Hugessen, Stone, May 3, 1984;
Brar, Iqbaljit Singh
v.M.E.I. (F.C.A.,
no. A-987-84), Thurlow, Hugessen, Cowan, May 29, 1986;
Mansour, Sleiman
v.M.E.I. (F.C.A.,
no. A-654-90), Marceau, Desjardins, Dcary, December 5, 1991;
Samad, Fani Abdi
v.M.E.I. (F.C.A.,
no. A-735-90), Heald, MacGuigan, Linden, February 10, 1992;
Varnousefaderani, Hamid Reza
v.M.E.I. (F.C.A.,
no. A-386-90), Hugessen, Desjardins, Henry, May 26, 1992;
Ankrah, Bismark
v.M.E.I. (F.C.T.D.,
no. T-1986-92), Nol, March 16, 1993;
Oduro, Prince
v.M.E.I. (F.C.T.D.,
no. 92-A-7171), Nol, June 2, 1993;
Muhammed, Jamal
v.M.E.I. (F.C.T.D.,
no. A-714-92), MacKay, August 12, 1993.
Return to note 33 referrer
- Note 34
Courts have developed a hierarchy of preferences concerning various types of witnesses. As between involved witnesses or "actors" and mere bystanders, the former are preferred. There is however, no authority requiring preference to be given to the testimony of "actors" over that of expert witnesses. While the testimony of involved, but disinterested, witnesses is preferred (at least in the absence of extenuating circumstances), over that of interested witnesses, whether involved or not, a court will not disbelieve testimony solely because a witness is interested and without reference to the facts and other relevant factors. See
J.P. Porter
Co.Ltd.v. Bell
et al., [1955] 1
D.L.R. 62 (N.S.S.C.);
Lefeunteum
v. Beaudoin (1898), 28
S.C.R. 89;
Bateman
v. County of Middlesex (1912), 6
D.L.R. 533 (Ont. C.A.);
Re Direct Exeter (1850), 3
DeG&Sm 214.
Return to note 34 referrer
- Note 35
Owusu, Kweku
v.M.E.I. (F.C.A.,
no. A-1146-87), Heald, Hugessen, Desjardins, January 31, 1989;
Mensah, George Akohene
v.M.E.I. (F.C.A.,
no. A-1173-88), Pratte, Hugessen, Desjardins, November 23, 1989;
Hilo
v. Canada (Minister of Employment and Immigration) (1991), 15
Imm. L.R. (2d) 199 (F.C.A.);
Tung
v. Canada (Minister of Employment and Immigration) (1991), 124
N.R. 388 (F.C.A.). This would include a consideration of the conditions in the claimant's country or origin, as well as the experiences of similarly situated persons. See, respectively,
Bains
v. Canada (Minister of Employment and Immigration) (1993), 20
Imm. L.R. (2d) 296 (F.C.T.D.); and
Chaudri
v. Canada (Minister of Employment and Immigration) (1986), 69
N.R. 114 (F.C.A.).
Return to note 35 referrer
- Note 36
In
Polgari, Imre
v.M.C.I. (F.C.T.D.,
no. IMM-502-00), Hansen, June 8, 2001, 2001
FCT 626, the Court faulted the
CRDD for "the absence of any analysis of the extensive documentationcoupled with the failure to adequately address the contradictory documents and explain its preference for the evidence on which it relied." In
Orgona, Eva
v.M.C.I. (F.C.T.D.,
no. IMM-4517-99), MacKay, April 18, 2001, 2001
FCT 346, the Court faulted the
CRDD because "it made no reference to the significant documentary evidence which was supportive of the claims. when evidence which supports the [claimants'] position is not referred to, and when other documentary evidence is selectively relied upon, the tribunal, in my opinion, errs in law by ignoring relevant evidence.
Return to note 36 referrer
- Note 37
In
Bosiakali, Mbokolo
v.M.C.I. (F.C.T.D.,
no. IMM-4948-00), Nadon, December 14, 2001, 2001
FCT 1381, the Court found that the
CRDD had not reconciled the testimony of the daughter, which it found credible and which supported her mother's testimony concerning her arrest, and indirectly corroborated the fact that her father had also been arrested, with the testimony of the parents regarding these events, which was rejected for lack of credibility.
Return to note 37 referrer
- Note 38
Yaliniz, Tacir
v.M.E.I. (F.C.A.,
no. A-648-87), Marceau, Teitelbaum, Walsh, March 8, 1988, Reported:
Yaliniz
v. Canada (Minister of Employment and Immigration) (1989), 7
Imm. L.R. (2d) 163 (F.C.A.);
Mahathmasseelan
v. Canada (Minister of Employment and Immigration) (1991), 15
Imm. L.R. (2d) 29 (F.C.A.). In
Djama, Idris Mohamed
v.M.E.I. (F.C.A.,
no. A-738-90), Marceau, MacGuigan, Dcary, June 5, 1992, the Court held that a panel will have erred if it allows itself to become so fixated on the details of the claimant's testimony that it forgets the substance of the facts on which the claim is based.
Return to note 38 referrer
- Note 39
M.C.I.v. Roitman, Isabella (F.C.T.D.,
no. IMM-1446-00), Nadon, May 10, 2001, 2001
FCT 462.
Return to note 39 referrer
- Note 40
Florea, Constantin
v.M.E.I. (F.C.A.,
no. A-1307-91), Hugessen, Desjardins, Dcary, June 11, 1993;
Kisungu, Guyguy Tshika
v.M.C.I. (F.C.T.D.,
no. IMM-3807-00), Nadon, May 8, 2001, 2001
FCT 446. The inclusion of the "boilerplate" assertion that the Board considered all the evidence before it may not be sufficient to prevent this inference from being drawn. In
Sathanandan
v. Canada (Minister of Employment and Immigration) (1991), 15
Imm. L.R. (2d) 310 (F.C.A.), the
CRDD rejected the claim stating there was no indication in the documentary evidence of forcible recruitment of females, when in fact there was some evidence on point, albeit feeble, which it neglected to consider. See, however,
Piber, Attila
v.M.C.I. (F.C.T.D.,
no. IMM-3282-00), Gibson, July 6, 2001, 2001
FCT 769, where the Court found no error on the part of the
CRDD in failing to refer to relevant documents in the claimant's very extensive package of documentary evidence where the claimant's counsel did not direct the
CRDD's attention to the most relevant passages in that package. On the other hand, in
Nadarajan, Janapalarajan
v.M.C.I. (F.C.T.D.,
no. IMM-6298-00), Gibson, November 9, 2001, 2001
FCT 1222, the Court noted that this was not a case where the claimant had filed voluminous documentary evidence that no
CRDD panel could be expected to have taken cognizance of in all its detail. In fact, the document in question was put into the record, at least by reference, by the
CRDD itself.
Return to note 40 referrer
- Note 41
Hassan, Jamila Mahdi
v.M.E.I. (F.C.A.,
no. A-831-90), Isaac, Heald, Mahoney, October 22, 1992, Reported:
Hassan
v. Canada (Minister of Employment and Immigration) (1992), 147
N.R. 317 (F.C.A.);
Gourenko, Rouslan
v.S.G.C. (F.C.T.D.,
no. IMM-7260-93), Simpson, May 4, 1995.
Return to note 41 referrer
- Note 42
Cepeda-Gutierrez, Carlos Arturo
v.M.C.I. (F.C.T.D.,
no. IMM-596-98), Evans, October 16, 1998. As for the question, "when is a document so important that it must be specifically mentioned in the [reasons for] decision," see
Gourenko, Rouslan
v.S.G.C. (F.C.T.D.,
no. IMM-7260-93), Simpson, May 4, 1995:
In my view, a document need only be mentioned in a decision if, first of all, the document is timely, in the sense that it bears on the relevant time period. Secondly, it must be prepared by a reputable, independent author who is in a position to be the most reliable source of information. Thirdly, it seems to me that the topic addressed in the document must be directly relevant to [a claimant's] claim. For example, documents sent to or received by [a claimant], or prepared for [a claimant], or about [a claimant], which bear on relevant issues would, in the ordinary course be mentioned in reasons. In addition, if a document is directly relevant to the facts alleged by [a claimant], one would expect to see that document addressed in the Board's reasons. On the other hand, numerous other documents may be only marginally relevant. In my view, it is not a reviewable error for the Board to fail to deal with such documents in its reasons.
Return to note 42 referrer
- Note 43
Failure to refer to a relevant document which is specific to the claim and corroborates, or goes contrary to, the claimant's evidence may lead to the inference that the Board made its decision without regard to the evidence before it. See
Bains
v. Canada (Minister of Employment and Immigration) (1993), 20
Imm. L.R. (2d) 296 (F.C.T.D.);
Iordanov, Deian Iordanov
v.M.C.I. (F.C.T.D.,
no. IMM-1429-97), Muldoon, March 18, 1998;
Atwal, Pargat Singh
v.S.S.C. (F.C.T.D.,
no. IMM-4470-93), Gibson, July 20, 1994, Reported:
Atwal
v. Canada (Secretary of State) (1994), 25
Imm. L.R. (2d) 80 (F.C.T.D.);
Khan, Mohammed Azad
v.M.C.I. (F.C.T.D.,
no. IMM-2831-98), Teitelbaum, March 11, 1999.
Return to note 43 referrer
- Note 44
In
Lahpai, Aung Gam
v.M.C.I. (F.C.T.D.,
no. IMM-1620-00), Dub, February 16, 2001, 2001
FCT 88, the Court held that the failure to deal with three documents that flagrantly contradicted the
CRDD's conclusions on the central issue of the claimant's involvement in the student unrest constituted an error of law. See also
Sinko, Jozsef
v.M.C.I. (F.C.T.D.,
no. IMM-569-01), Blanchard, August 23, 2002, 2002
FCT 903;
Ahmed, Bashar
v.M.C.I. (F.C.T.D.,
no. IMM-2745-02), Tremblay-Lamer, April 17, 2003, 2003
FCT 456;
Voytik, Lyudmyla Vasylivna
v.M.C.I. (F.C.,
no. IMM-5023-02), O'Keefe, January 16, 2004, 2004
FC 66. However, other Federal Court decisions have held that where the panel concludes that a claimant's claim, including the specific facts to which some personal documents refer to, are clearly not credible, it is not an error on its part not to explain why it did not give probative value to documents which purport to substantiate allegations found not to be credible. See
Ahmad, Nawaz
v.M.C.I. (F.C.T.D.,
no. IMM-944-02), Rouleau, April 23, 2003, 2003
FCT 471, which cites
Songue, Andr Marie
v.M.C.I. (F.C.T.D.,
no. IMM-3391-95), Rouleau, July 26, 1996, and
Hamid, Iqbal
v.M.E.I. (F.C.T.D.,
no. IMM-2829-94), Nadon, September 20, 1995. In
Husein, Anab Ali
v.M.C.I. (F.C.T.D.,
no. IMM-2044-97), Joyal, May 27, 1998, the Court held that once the Board had concluded that identity had not been established, it was not necessary to analyze the evidence any further.
Return to note 44 referrer
- Note 45
Frimpong
v. Canada (Minister of Employment and Immigration) (1989), 8
Imm. L.R. (2d) 183 (F.C.A.);
Sathanandan
v. Canada (Minister of Employment and Immigration) (1991), 15
Imm. L.R. (2d) 310 (F.C.A.);
Bains
v. Canada (Minister of Employment and Immigration) (1993), 20
Imm. L.R. (2d) 296 (F.C.T.D.).
Return to note 45 referrer
- Note 46
Yaliniz, Tacir
v.M.E.I. (F.C.A.,
no. A-648-87), Marceau, Teitelbaum, Walsh, March 8, 1988, Reported:
Yaliniz
v. Canada (Minister of Employment and Immigration) (1989), 7
Imm. L.R. (2d) 163 (F.C.A.);
Djama, Idris Mohamed
v.M.E.I. (F.C.A.,
no. A-738-90), Marceau, MacGuigan, Dcary, June 5, 1992.
Return to note 46 referrer
- Note 47
In
Tharmalingam, Kugathasalingam
v.M.E.I. (F.C.T.D.,
no. IMM-3318-93), Denault, August 23, 1994, the Court held that, since the
CRDD did not make a general finding of lack of credibility, it had to consider the remaining credible evidence. In
Chong, Lim Man
v.M.C.I. (F.C.T.D.,
no. IMM-3438-97), Rothstein, July 7, 1998, the Court held that the panel seemed to have rejected the claim solely on the grounds that it did not believe the embellishments that it thought the claimant had made up, without addressing the primary issue before it (the claimant's religious affiliation). In
Burgos-Rojas, Juan Pedro
v.M.C.I. (F.C.T.D.,
no. IMM-3159-98), Rouleau, January 25, 1999, the
CRDD failed to consider the question of whether the claimant had a well-founded fear of persecution simply on the basis of his sexual orientation (which was not questioned), even though his testimony was not found to be credible. In
Tshimbombo, Tshimanga
v.M.C.I. (F.C.T.D.,
no. IMM-680-99), Pinard, December 23, 1999, the Court held that the
CRDD erred when it had merely mentioned, and not disposed of, the testimony of a third person corroborating the identity of the claimant, whose credibility was in question. In
Seevaratnam, Sukunamari
v.M.C.I. (F.C.T.D.,
no. IMM-3728-98), Tremblay-Lamer, May 11, 1999, the Court held that, even if much of the evidence were disbelieved, there was evidence linking her claim to the ongoing persecution of young Tamil women in Sri Lanka. In
Mylvaganam, Thayapanan
v.M.C.I. (F.C.T.D.,
no. IMM-3457-99), Gibson, July 24, 2000, since the
CRDD accepted the claimant's identity as a young Tamil male from the north, though not his alleged experience of persecution, it erred by then ignoring the substantial evidence before it that a person such as the claimant might well be at risk in Sri Lanka. Similarly, in
Kamalanathan, Rasaiah
v.M.C.I. (F.C.T.D.,
no. IMM-447-00), O'Keefe, May 30, 2001, 2001
FCT 553, the Court held that the
CRDD should have considered the independent documentary evidence which states that certain Tamil males from the north face persecution and determine whether the claimant was a member of that class of Tamils.
On the other hand, in
Husein, Anab Ali
v.M.C.I. (F.C.T.D.,
no. IMM-2044-97), Joyal, May 27, 1998, the Court held that once the Board had concluded that identity had not been established, it was not necessary to analyze the evidence any further; the main claimant's failure to prove that she belonged to a persecuted clan effectively undermined any claim of a well-founded fear of persecution. In
Thiyagarajah, Thushyanthan
v.M.C.I. (F.C.T.D.,
no. IMM-2480-98), McKeown, June 24, 1999, the Court held that the
CRDD was not required to review the documentary evidence with respect to a general fear of persecution as a general member of a group in a country (young Tamil males from the north of Sri Lanka), when the
CRDD has made a general finding of credibility against a claimant and the claimant has not raised his fear in terms of a general group. In
Yogeswaran, Kulamanidevi
v.M.C.I. (F.C.T.D.,
no. IMM-1291-99), MacKay, February 9, 2001, 2001
FCT 48, the
CRDD found that the Tamil claimants had not established that they were who they claimed to be (their identity documents contained many inconsistencies); the
CRDD also relied on their lack of knowledge about the route travelled from Jaffna to Colombo. See also
Sinnasamy, Thavam
v.M.C.I. (F.C.,
no. IMM-423-02), Gauthier, July 10, 2003, 2003
FC 856 (the Board was not convinced the claimant was a Tamil from Jaffna actually living in Sri Lanka just prior to his arrival in Canada);
Mathews, Marie Beatrice
v.M.C.I. (F.C.no. IMM-5338-02), O'Reilly, November 26, 2003, 2003
FC 1387 (the documentary evidence on conditions in Sri Lanka was general and not corroborative of any specific aspect of the claim). In
Nasreen, Rehana
v.M.C.I. (F.C.T.D.,
no. IMM-6048-98), Cullen, September 8, 1999, the Court held that, in light of the total loss of the claimant's credibility, it was not necessary for the panel to address the general situation for Shia Muslims in Pakistan; there was no real foundation left to make her case out on the second issue. In
Djouadjou, Mohand El Bachir
v.M.C.I. (F.C.T.D.,
no. IMM-6358-98), Pinard, October 8, 1999, the Court held that the
CRDD did not need to consider the documentary evidence concerning Algeria insofar as the claimant's testimony was found not to be credible. In
Ali, Mohamad Hussein
v.M.C.I. (F.C.T.D.,
no. IMM-4548-00), Blais, May 29, 2001, 2001
FCT 547, where the claimant alleged that he deserted the army for reasons of conscience, the Court held that if the
CRDD finds a claimant lacking in credibility, the documentary evidence alone is not sufficient to establish a claimant's fear since there is no evidence supporting the subjective basis for this fear. In
Ghribi, Abdelkarim Ben
v.M.C.I. (F.C.,
no. IMM-2580-02), Blanchard, October 14, 2003, 2003
FC 1191, the Court held that the Board is not required to address arguments concerning refugee
sur place where the claimant has been judged not to have presented any credible evidence substantiating the claim.
Return to note 47 referrer
- Note 48
In
Ngoyi, Badibanga
v.M.C.I. (F.C.T.D.,
no. IMM-95-01), Pinard, October 10, 2001, 2001
FCT 1099, following a Court-ordered hearing
de novo, the
CRDD concluded that the claimant's allegations were not credible because he had chosen not to testify. The Court held that the panel should have at least commented on the documentary evidence (PIF, exhibits, transcript of the claimant's testimony at the first hearing), and the claimant was available to answer the members' questions.
Return to note 48 referrer
- Note 49
Sheikh
v. Canada (Minister of Employment and Immigration), [1990] 3
F.C. 238 (C.A.), at 244, per MacGuigan
J.A.
Return to note 49 referrer
- Note 50
In
Dan-Ash
v. Canada (Minister of Employment and Immigration) (1988), 93
N.R. 33 (F.C.A.), at 35, Justice Hugessen stated: "unless one is prepared to postulate (and accept) unlimited credulity on the part of the Board, there must come a point at which a witness's contradictions will move even the most generous trier of fact to reject his evidence."
Return to note 50 referrer
- Note 51
See, for example,
Ferdosi, Jahan
v.M.C.I. (F.C.T.D.,
no. IMM-2626-00), MacKay, November 5, 2001, 2001
FCT 1203.
Return to note 51 referrer
- Note 52
Amaniampong, Kofi
v.M.E.I. (F.C.A.,
no. A-1326-87), Heald (dissenting), Hugessen, Mahoney, May 19, 1989;
Chan
v. Canada (Minister of Employment and Immigration), [1995] 3
S.C.R. 593, at 664. In
Sinora, Frensel
v.M.E.I. (F.C.T.D.,
no. 93-A-334), Nol, July 13, 1993, the Court pointed out that the documentary evidence may satisfy the objective requirement, but cannot provide proof of a subjective fear, which must come from the claimant.
Return to note 52 referrer
- Note 53
Yusuf
v. Canada (Minister of Employment and Immigration), [1992] 1
F.C. 629 (C.A.). See also
Shanmugarajah, Appiah
v.M.E.I. (F.C.A.,
no. A-609-91), Stone, MacGuigan, Henry, June 22, 1992, and
Lai
v. Canada (Minister of Employment and Immigration) (1989), 8
Imm. L.R. (2d) 245 (F.C.A.), where the Court said at 246: "The double question put to the Board was whether the [claimant] had a genuine fear to return to his country and whether that fear was reasonable,
i.e. founded on good grounds. In answering that question, the Board has to assess
all the evidence put before it."
Return to note 53 referrer
- Note 54
As pointed out in
Maqdassy, Joyce Ruth
v.M.C.I. (F.C.T.D.,
no. IMM-2992-00), Tremblay-Lamer, February 19, 2002, 2002
FCT 182, the Supreme Court iterated in
Canada (Attorney General)
v. Ward, [1993] 2
S.C.R. 689, at 723, that the test for establishing fear of persecution is bipartite.
Return to note 54 referrer
- Note 55
Kamana, Jimmy
v.M.C.I. (F.C.T.D.,
no. IMM-5998-98), Tremblay-Lamer, September 24, 1999;
Tabet-Zatla, Mohamed
v.M.C.I. (F.C.T.D.,
no. IMM-6291-98), Tremblay-Lamer, November 2, 1999;
Fernando, Josph Premkumar
v.M.C.I. (F.C.T.D.,
no. IMM-4601-00), Nadon, July 5, 2001, 2001
FCT 759;
Vallipuram, Anandasivam
v.M.C.I. (F.C.T.D.,
no. IMM-4748-00), Lemieux, October 10, 2001, 2001
FCT 1106;
Kanyai, Mugwagwa Brian
v.M.C.I. (F.C.T.D.,
no. IMM-315-02), Martineau, August 9, 2002, 2002
FCT 850.
Return to note 55 referrer
- Note 56
Sinora, Frensel
v.M.E.I. (F.C.T.D.,
no. 93-A-334), Nol, July 13, 1993;
Maqdassy, Joyce Ruth
v.M.C.I. (F.C.T.D.,
no. IMM-2992-00), Tremblay-Lamer, February 19, 2002, 2002
FCT 182.
Return to note 56 referrer
- Note 57
Sinko, Jozsef
v.M.C.I. (F.C.T.D.,
no. IMM-569-01), Blanchard, August 23, 2002, 2002
FCT 903;
Ahmed, Rafat Mohamed
v.M.C.I. (F.C.,
no. IMM-6333-02), Tremblay-Lamer, October 1, 2003, 2003
FC 1135.
Return to note 57 referrer
- Note 58
Colorado, Jesus Enrique Cornejo
v.M.C.I. (F.C.T.D.,
no. IMM-2629-99), Nadon, April 20, 2000 (failing to mention an important event in the
PIF). In
Lubeya, Siula
v.M.C.I. (F.C.T.D.,
no. IMM-512-00), Pinard, December 6, 2000, the Court held that, since the wife's claim was dependent on that of her husband's (she had adopted totally her husband's statements which were found not to be credible), the
CRDD could reasonably have concluded that she was no more credible, even though she relied on her own imputed political opinion and membership in a particular social group, the family. In
Kabulo, Buye
v.M.C.I. (F.C.T.D.,
no. IMM-5015-97), Dcary, July 7, 1998, Reported:
Kabulo
v. Canada (Minister of Citizenship and Immigration) (1998), 45
Imm. L.R. (2d) 207 (F.C.T.D.), the Court held that it was not an error for the
CRDD not to consider the wife's cursory testimony, where the testimony of the husband, the principal claimant, was not believed. For a similar result, see also
Tofan, Ioan
v.M.C.I. (F.C.T.D.,
no. IMM-3167-00), Nadon, September 11, 2001, 2001
FCT 1011,where the wife's testimony was dependent on that of husband's "to a considerable extent".
Return to note 58 referrer
- Note 59
In
Radoslavov, Radoslav Itzov
v.M.C.I. (F.C.T.D.,
no. IMM-6344-99), Campbell, July 13, 2000, the Court held that it is not possible for the evidence that was accepted for three successful claimants, not to be accepted for the fourth claimant, who based his claim on the same fact situation which was apparently accepted as true for all four claimants, despite the inconsistencies in his evidence.
Return to note 59 referrer
- Note 60
In
Khan, Himmotur Rahman
v.M.C.I. (F.C.T.D.,
no. IMM-3428-97), Denault, August 21, 1998, the Court found that the
CRDD erred by rejecting the claim of the husband in a summary way on the basis that his wife, the principal claimant, was not credible, when he had his own allegations of persecution. In
Csonka, Miklos
v.M.C.I. (F.C.T.D.,
no. IMM-6268-99), Lemieux, August 17, 2001, 2001
FCT 915, the Court held that the
CRDD erred by tarnishing the principal claimant's mother and older son with the reasons they found the principal claimant not credible, when the former had distinctive elements to their claims which the panel failed to analyze.
Return to note 60 referrer
- Note 61
See
Rahmatizadeh, Ali
v.M.E.I. (F.C.T.D.,
no. IMM-2696-93), Nadon, April 6, 1994, where the Court held that the granting of Convention refugee status for one family member is not determinative for another, since the determination of Convention refugee status is performed on a case-by-case basis.
Return to note 61 referrer
- Note 62
See, for example,
Vettivelu, Yogasothy
v.M.E.I. (F.C.T.D.,
no. IMM-2091-93), Rothstein, July 6, 1994, where the Court held that the onus is on the claimant to show that she is similarly situated to her children, who were accepted as Convention refugees. In
Del Chavero, Veronica
v.M.C.I. (F.C.T.D.,
no. IMM-2912-02), Lutfy, April 25, 2003, 2003
FCT 513, the Court overurned the
CRDD decision because it did not mention the testimony, given at the hearing, of the claimant's sister, who successfully claimed refugee status based on the same fact situation. In
Dudar, Igor
v.M.C.I. (F.C.T.D.,
no. IMM-61-02), Snider, December 9, 2002, 2002
FCT 1277, the Court held that the
CRDD was correct in giving little or no weight to the
PIFs of other refugee claimants. There was no evidence presented that explained the context in which these refugee claims were granted; nor was the claimant personally connected with or aware of the persons named in those
PIFs. In
Botros, Fadwa
v.M.C.I. (F.C.T.D.,
no. IMM-267-02), Nol, December 13, 2002, 2002
FCT 1298, where the claimant submitted the
PIF of her brother, a successful refugee claimant, the Court held that the brother's story does not constitute corroboration because, as he did not appear as a witness at the claimant's hearing, the
CRDD could not test his story. In
Sellathurai, Sinnappu
v.M.C.I. (F.C.T.D.,
no. IMM-2829-02), O'Keefe, November 5, 2003, 2003
FC 1235, the Court held that the
CRDD did not err in addressing the issue that three of the claimant's children were previously accepted as Convention refugee in Canada, as the claimant did not lead any evidence as to why they were accepted.
Return to note 62 referrer
- Note 63
In
Wei, Yulai
v.M.C.I. (F.C.T.D.,
no. IMM-6169-99), Simpson, December 20, 2000, the Court held that it was open to the
CRDD to conclude that the claim was bogus because the claimant was part of a delegation whose members all made refugee claims. In
Gao, Zhen
v.M.C.I. (F.C.T.D.,
no. IMM-5989-00), Nadon, August 31, 2001, 2001
FCT 978, the Court held that, in light of all the other credibility concerns, the
CRDD did not err in drawing a negative inference from the fact that the claimant's colleague, the source of the claimant's fear of persecution, had failed to pursue her refugee claim.
Return to note 63 referrer
- Note 64
Kocab, Teresa
v.M.E.I. (F.C.A.,
no. A-83-91), Marceau, Hugessen, MacGuigan, October 15, 1991. In
Londono, Javier
v.M.C.I. (F.C.T.D.,
no. IMM-2413-02), Rouleau, May 9, 2003, 2003
FCT 569, the Court iterated that the Board must consider each case independently and grant little weight to the results of previous refugee claims by members of the same family. In
Matlija, Gezim
v.M.C.I. (F.C.T.D.,
no. IMM-1431-02), O'Reilly, May 29, 2003, 2003
FCT 704, the Court stated that, while the Board has no obligation to refer to or follow the decisions of other panels, even when dealing with members of the same family, in this case the Board specifically asked for written information about the successful refugee claims of the family members, and thus should have at least referred to that evidence.
Return to note 64 referrer
- Note 65
In
Dinehroodi, Sharareh Mohseni
v.M.C.I. (F.C.T.D.,
no. IMM-5198-02), Rouleau, June 19, 2003, 2003
FCT 758, in finding that it did not believe the claimant's story, the Board took into account that a previous panel had not believed her husband's story based on the same fact situation, but with new developments. The Board did not base its credibility finding solely on the previous
CRDD decision. The Court held that while the Board was entitled to rely on the previous panel's decision to some extent; the Board was not entitled to rely on the previous panel's overall conclusions as proof that the claimant's husband's claim and, in turn, the claimant's own claim, was fabricated. That was a finding which is clearly determinative of the Board's conclusion with respect to the claimant's credibility and which is clearly an important part of the Board's decision. However, in
Molina, Hector Hugo Quiroz
v.M.E.I. (F.C.T.D.,
no. IMM-577-93), Nadon, June 10, 1994, the Court held that the
CRDD's finding that the claimant's brother's testimony was not credible, and having noted that his claim had been dismissed as lacking in credibility, did not vitiate the panel's own assessment of the witness's credibility.
Return to note 65 referrer
- Note 66
In
Armson
v. Canada (Minister of Employment and Immigration) (1989), 9
Imm. L.R. (2d) 150 (F.C.A.), Justice Heald stated at 157-158: "the Board owed a duty to give the reasons for rejecting therefugee claim on the ground of credibility, in clear and unmistakable terms." In
Mehterian, Pierre Antoine
v.M.E.I. (F.C.A.,
no. A-717-90), Hugessen, MacGuigan, Desjardins, June 17, 1992, the Court stated: "the reasons must be sufficiently clear, precise and intelligible that the claimant may know why his claim has failed and decide whether to seek leave to appeal, where necessary." See also
Ababio, Richard
v.M.E.I. (F.C.A.,
no. A-390-87), Marceau, Teitelbaum, Walsh, March 9, 1988, Reported:
Ababio
v. Canada (Minister of Employment and Immigration) (1988), 5
Imm. L.R. (2d) 174 (F.C.A.);
Sebaratnam, Amuthakumar
v.M.E.I. (F.C.A.,
no. A-555-89), MacGuigan, Dcary, Hugessen (dissenting), April 15, 1991, Reported:
Sebaratnam
v. Canada (Minister of Employment and Immigration) (1991), 13
Imm. L.R. (2d) 264 (F.C.A.);
Tung
v. Canada (Minister of Employment and Immigration) (1991), 124
N.R. 388 (F.C.A.);
Ponniah
v. Canada (Minister of Employment and Immigration ) (1991), 13
Imm. L.R. (2d) 241 (F.C.A.);
Rahman
v. Canada (Minister of Employment and Immigration) (1988), 8
Imm. L.R. (2d) 170 (F.C.A.);
Hilo
v. Canada (Minister of Employment and Immigration) (1991), 15
Imm. L.R. (2d) 199 (F.C.A.);
Rajaratnam
v. Canada (Minister of Employment and Immigration) (1991), 135
N.R. 300 (F.C.A.);
Pour, Akbar Behzadi
v.M.E.I. (F.C.A.,
no. A-655-90), Marceau, Desjardins, Dcary, December 5, 1991;
Bains
v. Canada (Minister of Employment and Immigration) (1993), 20
Imm. L.R. (2d) 296 (F.C.T.D.).
Return to note 66 referrer
- Note 67
Addo, Samuel
v.M.E.I. (F.C.A.,
no. A-614-89), Mahoney, Hugessen, Gray, May 7, 1992. With respect to
PIFs, in
Efremov, Serguei Volodimirovich
v.M.C.I. (F.C.T.D.,
no. IMM-834-94), Reed, February 2, 1995, the Court stated that "[t]he fact that the Board accepted the claimant's
PIF into evidence, as though the written material therein had been given orally before the Board, does not mean that the Board accepted that evidence as truthful or credible. No such conclusion should be drawn from the acceptance of evidence as part of the record. The weight and credibility to be given to that evidence are still matters to be assessed by the Board."
Return to note 67 referrer
- Note 68
Rahman
v. Canada (Minister of Employment and Immigration) (1988), 8
Imm. L.R. (2d) 170 (F.C.A.);
Bains
v. Canada (Minister of Employment and Immigration) (1993), 20
Imm. L.R. (2d) 296 (F.C.T.D.).
Return to note 68 referrer
- Note 69
Mensah, George Akohene
v.M.E.I. (F.C.A.,
no. A-1173-88), Pratte, Hugessen, Desjardins, November 23, 1989;
Okyere-Akosah, Kwame
v.M.E.I. (F.C.A.,
no. A-92-91), Marceau, Desjardins, Dcary, May 6, 1992.
Return to note 69 referrer
- Note 70
Hilo
v. Canada (Minister of Employment and Immigration) (1991), 15
Imm. L.R. (2d) 199 (F.C.A.), at 200, per Heald
J.A. In
Shahiraj, Narender Singh
v.M.C.I. (F.C.T.D.,
no. IMM-3427-00), McKeown, May 9, 2001, 2001
FCT 453, the Court held that the
CRDD's statements to the effect that the discrepancies between the claimant's statements at the port of entry and in his
PIF narrative "compromise the credibility of his claim," and that his attempts to explain these discrepancies "rob of credibility his story of persecution", did not go far enough to dispose of the claim on credibility: The
CRDD did not specifically state that it disbelieved the claimant's version of events. In
Muniandy, Shasikala
v.M.C.I. (F.C.T.D.,
no. IMM-3584-01), Tremblay-Lamer, May 15, 2002, 2002
FCT 557, the Court found that "the Board did not say whether its finding that the claimant was not credible led it to reject completely the claimant's assertions as to the genuineness of his fear, let alone, it would appear, how it led to this overall rejection of his testimony."
Return to note 70 referrer
- Note 71
Ariff, Mohamed Faiz Mohamed
v.M.C.I. (F.C.T.D.,
no. IMM-1142-96), Nol, January 15, 1997.
Return to note 71 referrer
- Note 72
Hilo
v. Canada (Minister of Employment and Immigration) (1991), 15
Imm. L.R. (2d) 199 (F.C.A.). See also
Munyakayanza, Devote
v.M.C.I. (F.C.T.D.,
no. IMM-4359-99) Blais, August 16, 2000, where the
CRDD relied on letters which it dismissed as a basis for attacking the claimant's credibility.
Return to note 72 referrer
- Note 73
Armson
v. Canada (Minister of Employment and Immigration) (1989), 9
Imm. L.R. (2d) 150 (F.C.A.), at 157-58, per Heald
J.A. In
Stadtmuller, Otto Istvan
v.M.C.I. (F.C.,
no. IMM-618-03), Shore, January 23, 2004, 2004
FC 102, the Court stated : "The salient or key points of the evidence must be discussed in the reasons, in a more revelatory fashion."
Return to note 73 referrer
- Note 74
Ramirez, Ana Gabriela Espriella
v.M.C.I. (F.C.T.D.,
no. IMM-2540-98), McKeown, April 20, 1999.
Return to note 74 referrer
- Note 75
Guzman, Luis Martinez
v.M.C.I. (F.C.T.D.,
no. IMM-472-97), Nadon, December 22, 1997.
Return to note 75 referrer
- Note 76
Tung
v. Canada (Minister of Employment and Immigration) (1991), 124
N.R. 388 (F.C.A.);
Hilo
v. Canada (Minister of Employment and Immigration) (1991), 15
Imm. L.R. (2d) 199 (F.C.A.);
Gonzalez, Everth Francisco Fletes
v.M.E.I. (F.C.T.D.,
no. 92-T-1229), Simpson, November 18, 1993;
Yukselir, Bektas
v.M.C.I. (F.C.T.D.,
no. IMM-1306-97), Gibson, February 11, 1998. In
Castro, Alejandro Enrique
v.M.E.I. (F.C.T.D.,
no. T-2349-92), McKeown, August 5, 1993, however, the Court pointed out that the panel is not required to list each and every inconsistency provided specific examples are given. In
Isse, Kadija Ahmed
v.M.C.I. (F.C.T.D.,
no. IMM-2991-97), MacKay, July 7, 1998, where the
CRDD's reasons were found to be deficient, the only specific examples of inconsistencies set out were in comparing the evidence of the claimant with that of her children, to which latter evidence the panel stated it gave no weight. In
Diaz, Juan Rodrigo Penailillo
v.M.C.I. (F.C.T.D.,
no. IMM-4586-98), Pinard, August 12, 1999, the Court held that a conclusion of implausibility must be supported by reference to specific and relevant elements of the evidence, and cannot merely be a summary of the testimony of the claimant.
Return to note 76 referrer
- Note 77
Salamat
v. Canada (Immigration Appeal Board) (1989), 8
Imm. L.R. (2d) 58 (F.C.A.);
Siddique, Ashadur Rahman
v.M.E.I. (F.C.A.,
no. A-1137-88), Pratte, Hugessen, Desjardins, November 23, 1989.
Return to note 77 referrer
- Note 78
For example, in
Muhammed, Jamal
v.M.E.I. (F.C.T.D.,
no. A-714-92), MacKay, August 12, 1993, the Court upheld the
CRDD's conclusion disbelieving that the claimant was a native of Sudan, based on his lack of knowledge of basic information about his country (flag, national holiday, population of his city). See also
Katambala, Adric
v.M.C.I. (F.C.T.D.,
no. IMM-5827-98), Reed, July 19, 1999.
Return to note 78 referrer
- Note 79
Dan-Ash
v. Canada (Minister of Employment and Immigration) (1988), 93
N.R. 33 (F.C.A.). In
Tofan, Ioan
v.M.C.I. (F.C.T.D.,
no. IMM-3167-00), Nadon, September 11, 2001, 2001
FCT 1011, the Court stated: "In seeking to assess the validity of the [claimants'] refugee claim, the Board members were certainly entitled to question the [claimants] in a broad and general way, so as to determine whether the story put forward by them was credible." See also
2.3.8. Criminal and Fraudulent Activities in Canada.
Return to note 79 referrer
- Note 80
The definitions that follow are from
The Concise Oxford Dictionary and are "working" definitions. Other broader or narrower interpretations are possible, but these are given here as a guide.
-
Contradictory is used to refer to "facts", propositions or ideas that are mutually opposed or inconsistent so that one and only one of them must be true.
-
Inconsistent means not in keeping, discordant or incompatible.
-
Implausible is the opposite of plausible which means seeming reasonable or probable.
Return to note 80 referrer
- Note 81
Dan-Ash
v. Canada (Minister of Employment and Immigration) (1988), 93
N.R. 33 (F.C.A.);
Rajaratnam
v. Canada (Minister of Employment and Immigration) (1991), 135
N.R. 300 (F.C.A.). In
Epane, Florent
v.M.C.I. (F.C.T.D.,
no. IMM-974-98), Rouleau, June 17, 1999, the
CRDD erred by not taking into account the fact that the claimant, who was nerovous during the hearing, corrected her error (as to the date of the elections) on her own initiative.
Return to note 81 referrer
- Note 82
In
Dehghani
v. Canada (Minister of Employment and Immigration), [1990] 3
F.C. 587 (C.A.), the Federal Court held, in relation to the now defunct first level ("credible basis") hearing, the tribunal could refer to inconsistencies (for example, omissions) between prior statements made by the claimant, without counsel, at a port of entry examination, and on the claimant's later affidavit evidence and testimony at the hearing, to make an adverse finding of credibility. This decision was upheld by the Supreme Court of Canada, reported in [1993] 1
S.C.R. 1053, where it ruled that routine inquiries at secondary examination on the issues of identity, admissibility and a refugee claim do not amount to detention and thus the right to counsel is not invoked. See also
Dalawi, Abala Mohamed Al
v.M.C.I. (F.C.T.D.,
no. IMM-6394-98), Denault, August 5, 1999. But see, however,
Sow, Mamadou Yaya
v.M.C.I. (F.C.T.D.,
no. IMM-1662-98), Tremblay-Lamer, March 8, 1999, where the claimant was detained after reporting to claim refugee status and questioned by immigration officers without being advised of his right to counsel. Although the
CRDD accepted the notes into evidence, it gave no weight to them. The Court held that the panel exercised due diligence in refusing to take the notes into account, given the questionable way in which they had been obtained. Moreover, the panel was not obliged to recuse itself because it had read the notes. See also
Zhu, Rui Rong
v.M.C.I. (F.C.T.D.,
no. IMM-5964-00), Campbell, November 21, 2001, 2001
FCT 1275. In
Huang, Wen Zhen
v.M.C.I. (F.C.T.D.,
no. IMM-5816-00), MacKay, February 8, 2002, 2002
FCT 149, the claimant was detained for three days on arrival in Canada and interviewed by immigration authorities before being given access to counsel. Normally such evidence obtained in violation of
s. 10(b) of the
Charter of Rights and Freedoms would be excluded, however, in this case the
CRDD did not base it finding on those notes so the Court did not overturn the negative decision on the claim.
Return to note 82 referrer
- Note 83
Owusu-Ansah
v. Canada (Minister of Employment and Immigration) (1989), 8
Imm. L.R. (2d) 106 (F.C.A.);
Kassa
v. Canada (Minister of Employment and Immigration) (1989), 9
Imm. L.R. (2d) 1 (F.C.A.);
Boakye, Comfort Duodo
v.M.E.I. (F.C.A.,
no. A-562-91), Mahoney, Robertson, Gray, January 26, 1993;
Guevara, Melida de Jesus Valle
v.M.E.I. (F.C.T.D.,
no. A-58-93), Nadon, December 17, 1993.
Return to note 83 referrer
- Note 84
Transcripts of previous hearings are generally admissible:
Rahnema, Massoud
v.S.G.C. (F.C.T.D.,
no. IMM-1740-93), Gibson, October 15, 1993, Reported:
Rahnema
v. Canada (Solicitor General) (1993), 22
Imm. L.R. (2d) 127 (F.C.T.D.) (transcript of previously aborted
CRDD hearing);
Addai, Akua
v.M.E.I. (F.C.T.D.,
no. IMM-761-93), McGillis, February 16, 1994 (transcript of credible basis hearing);
Sitsabeshan, Ashadevi Balasingham
v.S.S.C. (F.C.T.D.,
no. IMM-1014-93), Gibson, June 22, 1994, Reported:
Sitsabeshan
v. Canada (Secretary of State) (1994), 27
Imm. L.R. (2d) 294 (F.C.T.D.) (transcript of overturned
CRDD hearing at subsequent
de novo hearing ordered by Federal Court);
Diamanama, Nsimba
v.M.C.I. (F.C.T.D.,
no. IMM-1808-95), Reed, January 30, 1996 (transcript of overturned
CRDD hearing);
Agranovski, Vladislav
v.M.C.I. (F.C.T.D.,
no. IMM-243-97), Pinard, November 25, 1997 (transcript of overturned
CRDD hearing filed with claimant's express consent; the panel questioned the claimant about each implausibility noted in its second decision);
Quazi, Enamul Huque
v.M.C.I. (F.C.T.D.,
no. IMM-6518-00), Pinard, October 10, 2001, 2001
FCT 1098.
A panel may also admit in evidence and read the written reasons of a previous panel dealing with the same claimant, though it would clearly be inappropriate for the second panel simply to adopt the reasons of the first. See
Lahai, Morie B.
v.M.C.I. (F.C.A.,
no. A-532-00), Rothstein, Sexton, Evans, March 25, 2002, 2002 FCA 119. It must be clear that the Board considered the matter afresh. See
Marques, Francisco Carlos
v.M.C.I. (F.C.T.D.,
no. IMM-3137-95), Rouleau, August 23, 1996, Reported:
Marques
v. Canada (Minister of Citizenship and Immigration) (1996), 35
Imm. L.R. (2d) 81 (F.C.T.D.). In
Badal, Benyamin
v.M.C.I. (F.C.T.D.,
no. IMM-1105-02), O'Reilly, March 14, 2003, 2003
FCT 311, the claimant did not testify at the rehearing, however, the Court held that that did not relieve the panel of the obligation to assess all of the evidence. It was open to the panel to consider the transcript of a previous hearing and make a finding of a lack of credibility based on it, provided its reasons make the basis for those findings clear. The Board relied on the analysis carried out by the previous panel. While a panel can rely on the fact-finding of another panel, to a certain extent, it would appear that the second panel simply relied on the first panel's assessment of the claimant's testimony instead of conducting its own assessment, and this constituted a breach of fairness. A mere reference to the observations of a previous panel does not satisfy the obligation to explain a negative credibility finding.
Return to note 84 referrer
- Note 85
Bakare, Abeni
v.M.E.I. (F.C.T.D.,
no. IMM-1603-93), Reed, January 19, 1994;
He, Feng Kui
v.M.E.I. (F.C.A.,
no. A-1194-91), Heald, Desjardins, Linden, July 20, 1994.
Return to note 85 referrer
- Note 86
Gandour, Fatema Hoteit
v.M.E.I. (F.C.T.D.,
no. A-1426-92), Dub, October 18, 1993;
Kaur, Jaswinder
v.M.C.I. (F.C.T.D.,
no. IMM-1944-96), Jerome, July 24, 1997. Some of the pitfalls of using
PIFs of related claimants have been highlighted in the following cases: In
Wimalachandran, Nadarajah
v.M.C.I. (F.C.T.D.,
no. IMM-2321-95), Reed, April 1, 1996, the Court faulted the Refugee Division for drawing adverse findings from omissions in the claimant's
PIF without taking up counsel's offer to produce the original Tamil version of the
PIF which, it was contended, had gone through an editing process. In
Chellaiyah, Arulthas
v.M.C.I. (IMM-3308-98), Lutfy, July 19, 1999, the Court held that the
CRDD could not assume that the information in the claimant's sister's
PIF was correct, nor did the claimant bear the burden of explaining the alleged discrepancies; that could only be properly done upon an assessment of the sister's credibility and the circumstances surrounding the disclosure of information at the time her
PIF was prepared. In
Bayrami, Javad Jamali
v.M.C.I. (F.C.T.D.,
no. IMM-3904-98), McKeown, July 22, 1999, the Court faulted the
CRDD for not ruling on the appropriatness of entering the
PIF of one daughter where the second daughter's
PIF was unavailable. In
Bebondas, Frankline Hohn
v.M.C.I. (F.C.T.D.,
no. IMM-428-99), Campbell, October 20, 1999, the Court faulted the
CRDD for concluding that the claimant fabricated his answer to question 37 of his
PIF, primarily because portions of his
PIF were the same as the
PIFs of three other claimants, in view of the claimant's explanation that it was his counsel who drew up his
PIF (thus the claimant could not properly be made to account for it).
Return to note 86 referrer
- Note 87
Arunachalam, Sivashanker
v.M.C.I. (F.C.T.D.,
no. IMM-2982-99), MacKay, September 6, 2001, 2001
FCT 997. After an interview in the "expedited process," the Refugee Protection Officer prepares a report; the interview is also recorded and the recording may be placed in evidence at the hearing if the accuracy of the report is contested.
Return to note 87 referrer
- Note 88
In
Fajardo, Mercedes
v.M.E.I. (F.C.A.,
no. A-1238-91), Mahoney, Robertson, McDonald, September 15, 1993, Reported:
Fajardo
v. Canada (Minister of Employment and Immigration) (1994), 21
Imm. L.R. (2d) 113 (F.C.A.), the Court commented that only the most naive applicant for a visitor's visa would indicate to the visa officer that her purpose for going to Canada was not to visit but to seek asylum. See also
Leitch, Roger Rodney
v.M.C.I. (F.C.T.D.,
no. IMM-2910-94), Gibson, February 6, 1995;
Quinteros, Carolina Elizabeth Lovato
v.M.C.I. (F.C.T.D.,
no. IMM-4030-97), Campbell, September 22, 1998;
Bhatia, Varinder Pal Singh
v.M.C.I. (F.C.T.D.,
no. IMM-4959-01), Layden-Stevenson, November 25, 2002, 2002
FCT 2010. In
Dhillon, Lakhwinder Singh
v.M.C.I. (F.C.T.D.,
no. IMM-120-01), McKeown, November 2, 2001, 2001
FCT 1194, the Court stated that it is questionable whether the claimant has any onus to refer to a previous immigration application under question 37 (narrative) of the
PIF.
Return to note 88 referrer
- Note 89
In
Asfaw, Sebsibe Haile
v.M.C.I. (F.C.T.D.,
no. IMM-2786-98), Sharlow, March 25, 1999, the Court noted the limited function of the eligibility interview and that, in any event, the claimant was not told that the information provided would be considered by the
CRDD. The Court held that the
CRDD erred in not giving notice to the claimant that his explanation for not mentioning important information during the interview was not satisfactory.
Return to note 89 referrer
- Note 90
As summarized in
Sheikh, Asad Javed
v.M.C.I. (F.C.T.D.,
no. IMM-315-99), Lemieux, April 25, 2000.
Return to note 90 referrer
- Note 91
Parnian, Saeid
v.M.C.I. (F.C.T.D.,
no. IMM-2351-94), Wetston, May 19, 1995. According to
Rahman, Saidur
v.M.E.I. (F.C.T.D.,
no. IMM-2078), Denault, June 10, 1994, the admission of such documents did not contravene the
Privacy Act as they were used for a use consistent with the purpose for which the information was obtained. According to
Johnpillai, Christian Joy Rajkumar
v.S.S.C. (F.C.T.D.,
no. IMM-3651-94), Reed, January 31, 1995, it is not a breach of natural justice for a decision-maker to be provided with such documents, even if they contain prejudicial information, prior to the hearing, as long as the claimant has an adequate opportunity to respond. All that is required is timely disclosure that is meaningful for the claimant in the circumstances. See
Gandour, Fatema Hoteit
v.M.E.I. (F.C.T.D.,
no. A-1426-92), Dub, October 18, 1993, where the Court held that the port of entry notes should not have been admitted without timely advance disclosure. Disclosure effected only during the course of cross-examination may not be sufficient, and this deficiency may not always be curable by offering an adjournment. See
Tetteh-Louis, Seth
v.S.S.C. (F.C.T.D.,
no. IMM-4218-93), Pinard, July 8, 1994. (See also
Instructions for the Acquisition and Disclosure of Information for Proceedings in the Refugee Division,
CRDD Instructions: 96-01.)
Return to note 91 referrer
- Note 92
M.E.I.v. Boampong, Sheikh Jedges (F.C.A.,
no. A-1219-91), Isaac, Marceau, McDonald, August 6, 1993. Once admitted, however, it is up to the tribunal to assess the probative value of the port of entry notes, that is., their weight and reliability. See
Karikari, Kwame
v.M.E.I. (F.C.A.,
no. A-275-92), Heald, Stone, McDonald April 25, 1994, Reported:
Karikari
v. Canada (Minister of Employment and Immigration) (1994), 169
N.R. 131 (F.C.A.).
Return to note 92 referrer
- Note 93
Mongu, E-Beele
v.S.G.C. (F.C.T.D.,
no. IMM-5060-93), Richard, October 12, 1994;
Abdoli, Siamak
v.M.C.I. (F.C.T.D.,
no. IMM-3769-94), Muldoon, March 13, 1995;
Nowa, Alain Eric
v.M.C.I. (F.C.T.D.,
no. IMM-430-99), Pelletier, February 1, 2000 (the immigration officer failed to appear). There is no duty on the Board to summon the immigration officer who authored the
POE notes. It is up to the claimant to call the officer as a witness. See
Lin, Guo Qing
v.M.C.I. (F.C.T.D.,
no. IMM-4864-94), Gibson, September 28, 1995;
Zaloshnja, Ylldes
v.M.C.I. (F.C.T.D.,
no. IMM-755-02), Tremblay-Lamer, February 20, 2003, 2003
FCT 206. The case of
Cheung
v. Canada (Minister of Employment and Immigration), [1981] 2
F.C. 764 (C.A.) suggests that the right "to cross examine" the deponent of an affidavit can be denied only where there are proper grounds to do so. As pointed out in
Dipchand, Neeranjan
v.M.E.I. (F.C.A.,
no. A-619-91), Mahoney, MacGuigan, Holland, February 10, 1993, there is a duty on the part of the decision-makers, in the exercise of their discretion to issue a subpoena, to consider all the relevant factors including the likelihood of the potential witness giving material evidence. In
Kusi, Kwame
v.M.C.I. (F.C.T.D.,
no. 92-T-1429), Reed, June 1, 1993, Reported:
Kusi
v. Canada (Minister of Employment and Immigration) (1993), 19
Imm. L.R. (2d) 281 (F.C.T.D.), the Court ruled that it was a breach of natural justice and fundamental justice not to call the immigration officer who authored the notes of a port of entry examination for cross-examination where the claimant contested the accuracy of those notes. See also
Jaupi, Skender
v.M.C.I. (F.C.T.D.,
no. IMM-2086-01), Kelen, June 11, 2002, 2002
FCT 658, where the claimant wanted to have the immigration officer and interpreter cross-examined with regard to inconsistencies in the immigration officer's notes—evidence that was central to the case against the claimant. In
Nadarajah, Kumaramoorthy
v.M.C.I. (F.C.T.D.,
no. IMM-4123-98), Blais, June 15, 1999, where the immigration officer's hand-written notes could not be located, the Court held that the
CRDD was justified in denying a request to reopen the hearing for cross-examination of all immigration officers who had handled the file.
Return to note 93 referrer
- Note 94
Nowa, Alain Eric
v.M.C.I. (F.C.T.D.,
no. IMM-430-99), Pelletier, February 1, 2000.
Return to note 94 referrer
- Note 95
Ramirez, Fredy Danilo Herrera
v.M.C.I. (F.C.T.D.,
no. IMM-3794-99), Dub, June 1, 2000.
Return to note 95 referrer
- Note 96
In
Singh, Amrik
v.M.C.I. (F.C.T.D.,
no. IMM-2835-95), Campbell, July 16, 1996, the Court cautioned that it is "poor practice" for the Board to find the notes to be accurate on "pure faith". The Board should inquire into such matters as the context of the interview and the degree to which the person understood the questions being put. In
Kanapathipillai, Bagawathy
v.M.C.I. (F.C.T.D.,
no. IMM-5186-97), Campbell, July 31, 1998, the Court found that the 68-year-old female claimant, speaking through an interpreter after arriving in a strange country, and being asked to account before an authority figure, had offered a reasonable explanation for not telling a full story during the twenty-minute interview at the port of entry, namely, she only answered the questions asked of her. The Court held that for the
CRDD to say, without reasons, that the claimant's explanation is "not satisfactory", is capricious. In
Thambirasa, Sakuntala
v.M.C.I. (F.C.T.D.,
no. IMM-1224-98), Reed, February 3, 1999, the Court found that: (1) The panel had failed to consider the reasons a (Tamil) woman would be reluctant to disclose a sexual assault to a stranger, a male, who speaks a different language and is in a country with a culture different from her own; (2) the port of entry notes completely fill the space provided for them; (3) what is written the is chosen by the officer, not the claimant; (4) there is no expectation that the brief few lines of notes are meant to tell the whole story. In
Ali, Abbas
v.M.C.I. (F.C.T.D.,
no. IMM-4565-99), Reed, June 28, 2000, the Court found that the claimant gave seemingly credible explanations for why the port of entry notes differed from the true story: it was clear that the notes were filled in by someone with limited knowledge of English. In
Nowa, Alain Eric
v.M.C.I. (F.C.T.D.,
no. IMM-430-99), Pelletier, February 1, 2000, the Court held that the immigration officer's opinion about the substance of the claim and the claimant's credibility was not relevant, and that the
CRDD erred in law in relying on this opinion in its deliberations. In
Neame, Nora Cathia
v.M.C.I. (F.C.T.D.,
no. IMM-847-99), Lemieux, March 23, 2000, the Court upheld a
CRDD decision that found that the claimant was lacking in credibility
solely on the basis of a contradiction between her
PIF and the port of entry notes. In
Mushtaq, Tasaddaq
v.M.C.I. (F.C.,
no. IMM-4324-02), Pinard, September 23, 2003, 2003
FC 1066, the Court held that the Board dwelt on minor details and not on the substance of the claim when it questioned the claimant's credibility based on the inconsistencies between the port of entry notes and the claimant's testimony.
Return to note 96 referrer
- Note 97
In
Anthonipillai, Jeyaratnam
v.M.C.I. (F.C.T.D.,
no. IMM-1709-95), Simpson, March 5, 1996, the Court held that the
CRDD could accept at a second
CRDD hearing, the
PIF from the first hearing (the decision therein had been quashed on judicial review), which differed in some respects from the second
PIF tendered by the claimant at the rehearing of the claim; the preferred procedure in such a case is for the first
PIF to be entered as a
CRDD exhibit (if tendered by the Board). See also
Aquino, Jose Felix Paniagua
v.M.E.I. (F.C.A.,
no. A-344-89), Mahoney, MacGuigan, Linden, June 4, 1992, where the Court held that in order for the Board to rely on inconsistencies between the
PIF and the claimant's oral testimony, the
PIF must be entered in evidence at the hearing. Note, however, that this case was distinguished in
Barrera, Mario Moises Guzman
v.M.E.I. (F.C.T.D.,
no. A-1552-92), McGillis, November 10, 1993, where the Court held that the fact the
PIF was not filed as an exhibit was only a matter of form, and this did not preclude the
CRDD from referring to the document.
In
Vallejo, Juan Ernesto
v.M.E.I. (F.C.A.,
no. A-799-90), Mahoney, Stone, Linden, March 26, 1993, the Court commented adversely on the fact that there was no evidence that the (revised)
PIF had been translated to the claimant. In
Boshnakov, Valeri
v.M.C.I. (F.C.T.D.,
no. A-418-91), Pratte, Hugessen, Desjardins, November 23, 1993, the Court held that where the
CRDD states at the hearing that it accepts the facts in the revised
PIF as true, it cannot, in its reasons, reject that evidence because of discrepancies between the original and revised
PIFs. In
Castroman (Vezzani), Carlos Adrian
v.S.S.C. (F.C.T.D.,
no. IMM-1302-92), McKeown, June 20, 1994, Reported:
Castroman
v. Canada (Secretary of State) (1994), 27
Imm. L.R. (2d) 129 (F.C.T.D.), the Court stated at 132: "In my view, it is not proper for a lawyer to interfere with the
RHO's or a member's questioning of the claimant with respect to his or her
PIF. The lawyer cannot attempt to shield the client from questioning as to why certain matters were omitted from the
PIF, on the basis of solicitor-client privilege. If the lawyer seeks to do this, then the Board would be entitled to give very little weight to the client's credibility." In
Bitumba, Bikoka
v.M.E.I. (F.C.T.D.,
no. IMM-1023-93), Nol, February 25, 1994, the Court held that the panel had raised a reasonable apprehension of bias by calling for production of (privileged) notes the claimant gave to his counsel for the purpose of preparing the
PIF, and indicating that in the absence of same it would draw an adverse inference (claimant alleged that matters omitted from his
PIF had been set forth in the notes). However, in
Molina, Hector Hugo Quiroz
v.M.E.I. (F.C.T.D.,
no. IMM-577-93), Nadon, June 10, 1994, the Court held that it was not an error for the panel to examine the claimant's file where counsel consented to same.
Return to note 97 referrer
- Note 98
Bakare, Abeni
v.M.E.I. (F.C.T.D.,
no. IMM-1603-93), Reed, January 19, 1994;
He, Feng Kui
v.M.E.I. (F.C.A.,
no. A-1194-91), Heald, Desjardins, Linden, July 20, 1994.
Return to note 98 referrer
- Note 99
In
Osman, Abdirizak Said
v.M.E.I. (F.C.T.D.,
no. IMM-261-93), Nadon, December 22, 1993, the Court cautioned the
CRDD not to discount the claimant's testimony in its entirety by simply carrying out a comparison of two different
PIFs submitted by the claimant which contain discrepancies; the
CRDD should go on to determine whether the claimant has any credible evidence to offer, especially where there is independent corroboration of part of the claimant's story. In
Kutuk, Aydin
v.M.C.I. (F.C.T.D.,
no. IMM-2484-94), Simpson, April 18, 1995, the Court stated: "the Board was entitled to consider the contents of the
PIF before and after its amendment. It was also entitled to draw negative inferences about credibility, if matters it considered important were only added to the
PIF by amendments made at the hearing." In
Taleb, Ali
v.M.C.I. (F.C.T.D.,
no. IMM-1449-98), Tremblay-Lamer, May 18, 1999, the Court held that the
CRDD was entitled to find the claimant's first
PIF as more credible than the revised one, especially since the former was corroborated by the documentary evidence. In
Nishanthan, Ramachandran
v.M.C.I. (F.C.T.D.,
no. IMM-1940-98), Lemieux, November 2, 1999, the Court found it unreasonable to conlude that the claimant had not made out his identity based on his failure to mention a document in his
PIF. In
Neame, Nora Cathia
v.M.C.I. (F.C.T.D.,
no. IMM-847-99), Lemieux, March 23, 2000, the Court upheld a
CRDD decision that found that the claimant was lacking in credibility
solely on the basis of a contradiction between her
PIF and the port of entry notes. In
Bastos, Neusa Margarida Ferrao
v.M.C.I. (F.C.T.D.,
no. IMM-4255-00), O'Keefe, June 15, 2001, 2001
FCT 662, the Court held that, in the circumstances, the
CRDD erred in finding a lack of credibility because there was more detail in the
PIF than in oral testimony. In
Akhigbe, Kingsley
v.M.C.I. (F.C.T.D.,
no. IMM-5222-00), Dawson, March 6, 2002, 2002
FCT 249, the Court held that the
CRDD is not entitled to draw a negative inference on the basis of a claimant's omission of minor or elaborative details in the
PIF. In
Manoharan, Indrani Thabita
v.M.C.I. (F.C.,
no. IMM-4526-02), Simpson, July 14, 2003, 2003
FC 871, the Court held that, although the discrepancies between the
PIF and port of entry notes did not concern the claimant's problems in Sri Lanka (but her period abroad and itinerary), the Board could still consider them in making a general finding of lack of credibility. In
Jaber, Amar
v.M.C.I. (F.C.,
no. IMM-2099-02), Pinard, September 23, 2003, 2003
FC 1065, the Court held that, even though the discrepancies between the
PIF and the claimant's testimony are not enough to justify a finding of no credibility, they did allow the panel to arrive at such a finding when it also considered the claimant's demeanour and the implausibility of his story.
Return to note 99 referrer
- Note 100
Basseghi, Kourosh
v.M.C.I. (F.C.T.D.,
no. IMM-2227-94), Teitelbaum, December 6, 1994. This case expanded on a previous statement in
Singh, Gurmeet
v.M.E.I. (F.C.T.D.,
no. IMM-888-93), Reed, October 8, 1993, where the Court stated: "The
PIF is supposed to be a brief recitation of [a claimant's] claim, not a documentation of his whole case." In
Castroman (Vezzani), Carlos Adrian
v.S.S.C. (F.C.T.D.,
no. IMM-1302-92), McKeown, June 20, 1994, Reported:
Castroman
v. Canada (Secretary of State) (1994), 27
Imm. L.R. (2d) 129 (F.C.T.D.), the Court stated at 131-32: "One of the primary ways that the board tests a claimant's credibility is by comparing the
PIF with the claimant's oral testimony. It is intended that all questions concerning the
PIF, directed to the claimant, should be answered fully." In
Grinevich, Vladimir
v.M.C.I. (F.C.T.D.,
no. IMM-1773-96), Pinard, April 11, 1997, the Court stated: "Where a refugee claimant fails to mention important facts in his or her
PIF, this may legitimately be considered by the Board to be an omission that goes to lack of credibility." See also
Sanchez, Armand Milian
v.M.C.I. (F.C.T.D.,
no. IMM-2631-99), Nadon, April 20, 2000, to the same effect. In
Uppal, Rajesh Kumar
v.S.G.C. (F.C.T.D.,
no. IMM-552-94), Reed, January 24, 1995, Reported:
Uppal
v. Canada (Solicitor General) (1995), 27
Imm. L.R. (2d) 232 (F.C.T.D.), the Court held that the alleged five-day detention, the event that allegedly triggered the claimant's flight, should have been mentioned in the
PIF. In
Bains, Pritam Singh
v.M.C.I. (F.C.T.D.,
no. IMM-5366-97), Reed, August 10, 1998, the Court noted that the
PIF directs claimants to recount only the significant incidents of their claim in that document, and that it was therefore not unreasonable for the claimant to have omitted "very ordinary problems" (incidents of police harassment and detention), when the focus of his claim was on more serious events that occurred before and after that time frame.
Return to note 100 referrer
- Note 101
In
Khawaja, Mohammad Rehan
v.M.C.I. (F.C.T.D.,
no. IMM-5385-98), Denault, July 28, 1999, the Court held that the
CRDD erred in not considering, in relation to an omission in the
PIF, a psychological report which found severe post-traumatic stress disorder and noted that the claimant had difficulties relating the traumatizing events he had experienced. In
Ogbebor, Macauley Jesse
v.M.C.I. (F.C.T.D.,
no. IMM-275-00), Lemieux, May 16, 2001, 2001
FCT 490, the Court held that the
CRDD erred in criticizing the claimant for not mentioning in his
PIF that he was raped while in detention, thus ignoring the psychologist's comment that the claimant felt extremely ashamed, and thus reluctant to speak, about this event.
Return to note 101 referrer
- Note 102
The fact that the claimant is a minor, however, will not generally account for significant omissions in the
PIF. See
Huang, Lin
v.M.C.I. (F.C.T.D.,
no. IMM-6300-99), Pelletier, November 14, 2001, 2001
FCT 1239.
Return to note 102 referrer
- Note 103
In
Dhar, Kabita
v.M.C.I. (F.C.T.D.,
no. IMM-6226-99), Denault, August 22, 2000, the
CRDD ignored evidence that the claimant suffered from a psychological syndrome originating from the sexual aggression she was a victim of and which affects her capacity to talk and give details about what happened to her. In
Chiebuka, Ayondu
v.M.C.I. (F.C.T.D.,
no. IMM-4571-99), Pinard, October 27, 2000, the Court found sexist, and unacceptably lacking in sensitivity and compassion, the member's comment that the claimant's testimony about her rape had not been emotional and the expression of surprise that she could have forgotten to mention in her
PIF that she had been raped twice. In
Simba, Ayonda
v.M.C.I. (F.C.T.D.,
no. IMM-102-99), Lemieux, January 24, 2001, the Court urged caution and an open mind when assessing the testimony of a young female claimant who alleged being sexually assaulted while in prison (the description of the assault varied significantly from that in the
PIF). See also
Kaur, Ravinder
v.M.C.I. (F.C.T.D.,
no. IMM-4869-00), Pinard, September 19, 2001, 2001
FCT 875.
Return to note 103 referrer
- Note 104
Shi, Gui Lan
v.M.C.I. (F.C.,
no. IMM-3197-02), Dawson, September 23, 2003, 2003
FC 1088. The use of related
PIFs in these circumstances gives rise to issues under
s. 17 of the
RPD Rules and the
Privacy Act.
Return to note 104 referrer
- Note 105
Arunasalam, Sivakumar
v.M.C.I. (F.C.T.D.,
no. IMM-6620-00), Blais, September 28, 2001, 2001
FCT 997.
Return to note 105 referrer
- Note 106
Lara, Nilda Guadalupe
v.M.C.I. (F.C.T.D.,
no. IMM-919-01), Simpson, December 17, 2001, 2001
FCT 1391. In that case the claimant was represented by counsel, and it was counsel's responsibility to adduce the claimant's evidence.
Return to note 106 referrer
- Note 107
Lai
v. Canada (Minister of Employment and Immigration) (1989), 8
Imm. L.R. (2d) 245 (F.C.A.);
Ahmed
v. Canada (Minister of Employment and Immigration) (1990), 12
Imm. L.R. (2d) 212 (F.C.A.);
Batra, Gurmeet Singh
v.M.E.I. (F.C.A., no. A-564-89), Hugessen, Desjardins, Dcary, September 9, 1991;
Rajaratnam
v. Canada (Minister of Employment and Immigration) (1991), 135
N.R. 300 (F.C.A.);
Giron
v. Canada (Minister of Employment and Immigration) (1992), 143
N.R. 238 (F.C.A.);
Membreno-Garcia
v. Canada (Minister of Employment and Immigration), [1992] 3
F.C. 306 (T.D.);
Fuentes-Valoy, Ruben Dario
v.M.E.I. (F.C.A.,
no. A-709-90), Mahoney, MacGuigan, Holland, February 9, 1993;
Mohamed, Haweya Abdi
v.M.E.I. (F.C.A.,
no. A-43-91), Mahoney, MacGuigan, Linden, February 11, 1993;
Fahiye, Mohamed Osman
v.M.E.I. (F.C.A.,
no. A-1321-91), Heald, MacGuigan, Linden, March 17, 1993.
Return to note 107 referrer
- Note 108
Attakora
v. Canada (Minister of Employment and Immigration) (1989), 99
N.R. 168 (F.C.A.);
Frimpong
v. Canada (Minister of Employment and Immigration) (1989), 8
Imm. L.R. (2d) 183 (F.C.A.);
Lai
v. Canada (Minister of Employment and Immigration) (1989), 8
Imm. L.R. (2d) 245 (F.C.A.);
Siddique, Ashadur Rahman
v.M.E.I. (F.C.A.,
no. A-1137-88), Pratte, Hugessen, Desjardins, November 23, 1989;
Giron
v. Canada (Minister of Employment and Immigration) (1992), 143
N.R. 238 (F.C.A.);
Grewal, Kala Singh
v.M.E.I. (F.C.A.,
no. A-532-91), Mahoney, Robertson, Gray, January 27, 1993;
Fuentes-Valoy, Ruben Dario
v.M.E.I. (F.C.A.,
no. A-709-90), Mahoney, MacGuigan, Holland, February 9, 1993;
Fahiye, Mohamed Osman
v.M.E.I. (F.C.A.,
no. A-1321-91), Heald, MacGuigan, Linden, March 17, 1993;
Bains
v. Canada (Minister of Employment and Immigration) (1993), 20
Imm. L.R. (2d) 296 (F.C.T.D.);
Guevara, Melida de Jesus Valle
v.M.E.I. (F.C.T.D.,
no. A-58-93), Nadon, December 17, 1993.
Return to note 108 referrer
- Note 109
Mahathmasseelan
v. Canada (Minister of Employment and Immigration) (1991), 15
Imm. L.R. (2d) 29 (F.C.A.);
Serrano, Jose Antonio Rodriguez
v.M.E.I. (F.C.A.,
no. A-646-91), Hugessen, Pratte, Desjardins, January 30, 1992. See also
Virk
v. Canada (Minister of Employment and Immigration) (1992), 140
N.R. 290 (F.C.A.);
Vallejo, Juan Ernesto
v.M.E.I. (F.C.A.,
no. A-799-90), Mahoney, Stone, Linden, March 26, 1993.
Return to note 109 referrer
- Note 110
Amaniampong, Kofi
v.M.E.I. (F.C.A.,
no. A-1326-87), Heald (dissenting), Mahoney, Hugessen, May 19, 1989;
Aden, Ibrahim Ali
v.M.E.I. (F.C.A.,
no. A-813-91), Hugessen, MacGuigan, Dcary, April 28, 1993.
Return to note 110 referrer
- Note 111
Simba, Ayonda
v.M.C.I. (F.C.T.D.,
no. IMM-102-99), Lemieux, January 24, 2001 (the central element was claimant's imprisonment because of her father's activities and not the sexual assault while in prison).
Return to note 111 referrer
- Note 112
Owusu-Ansah
v. Canada (Minister of Employment and Immigration) (1989), 8
Imm. L.R. (2d) 106 (F.C.A.) (escape from detention and destruction of false travel documents);
Armson
v. Canada (Minister of Employment and Immigration) (1989), 9
Imm. L.R. (2d) 150 (F.C.A.) (details of escape from jail and one's country and travel itinerary abroad were not consequential given the uncontradicted evidence of arrest, detention and mistreatment);
Ahangaran, Behzad
v.M.C.I. (F.C.T.D.,
no. IMM-301-98), McGillis, May 19, 1999 (the credibility findings were based solely on matters pertaining to travel following his departure from his country, including use of false documents and identities). But see
Farah, Kalthoum Abdirahman
v.M.E.I. (F.C.T.D.,
no. 92-A-6032), Reed, May 26, 1993, where the alleged destruction of a false passport was part of a larger identity concern.
Return to note 112 referrer
- Note 113
Rajaratnam
v. Canada (Minister of Employment and Immigration) (1991), 135
N.R. 300 (F.C.A.);
Njeme, Ali
v.M.C.I. (F.C.T.D.,
no. A-1614-92), Pinard, November 28, 1994.
Return to note 113 referrer
- Note 114
Alizadeh, Satar
v.M.E.I. (F.C.A.,
no. A-26-90), Stone, Desjardins, Dcary, January 11, 1993;
Aguebor, Clement
v.M.E.I. (F.C.A.,
no. A-1116-11), Marceau, Desjardins, Dcary, July 16, 1993, Reported:
Aguebor
v. Canada (Minister of Employment and Immigration) (1993), 160
N.R. 315 (F.C.A.); and
Shahamati, Hasan
v.M.E.I. (F.C.A.,
no. A-388-92), Pratte, Hugessen, McDonald, March 24, 1994, where the Court stated that "the Board is entitled, in assessing credibility, to rely on criteria such as rationality and common sense." See also
Oduro, Prince
v.M.E.I. (F.C.T.D.,
no. 92-A-7171), Nol, June 2, 1993 (claimant escaped from prison with the assistance of a guard and did not encounter any checkpoints when leaving the country);
Chand, Saroop
v.M.E.I. (F.C.T.D.,
no. 92-T-2035), Gibson, January 26, 1994.
Return to note 114 referrer
- Note 115
Faryna
v. Chorny, [1952] 2
D.L.R. 354 (B.C. C.A.), at 357, per O'Halloran
J.A.
Return to note 115 referrer
- Note 116
Arumugam, Kandasamy
v.M.E.I. (F.C.T.D.,
no. IMM-1406-93), Reed, January 20, 1994.
Return to note 116 referrer
- Note 117
Kong, Win Kee
v.M.E.I. (F.C.T.D.,
no. IMM-471-93), Reed, January 27, 1994, Reported:
Kong
v. Canada (Minister of Employment and Immigration) (1994), 23
Imm. L.R. (2d) 179 (F.C.T.D.)
Return to note 117 referrer
- Note 118
Miral, Stefnie Dinisha
v.M.C.I. (F.C.T.D.,
no. IMM-3392-97), Muldoon, February 12, 1999.
Return to note 118 referrer
- Note 119
The formulation found in
Faryna
v. Chorny —that "a practical and informed person would
readily recognize as reasonable in that place and in those conditions"—seems to suggest that, in order to find something to be implausible, it must be clearly out of line with known facts or norms of behaviour. In
Valtchev, Rousko
v.M.C.I. (F.C.T.D.,
no. IMM-4497-99), Muldoon, July 6, 2001, 2001
FCT 776, the Court held that plausibility findings should be made only in the clearest of cases,
i.e., if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the maner asserted by the claimant. In
Ye, Xue Bi
v.M.C.I. (F.C.T.D.,
no. IMM-5860-00), Blanchard, November 2, 2001, 2001
FCT 1196, the Court upheld the
CRDD's conclusion that while certain events are possible (though they occur rarely), they are not probable and therefore implausible. In
Valre, Nixon
v.M.C.I. (F.C.T.D.,
no. IMM-3747-00), Hansen, November 2, 2001, 2001
FCT 1200, the Court held:
Although harm stems from opportunity and motive, it does not necessarily follow that an absence of harm in circumstances where opportunity exists equates to an absence of motive. While a lack of motive in these circumstances may be plausible, the fact the [claimant] remained unharmed for a period of three weeks is insufficient by itself to take the finding beyond mere conjecture.
Return to note 119 referrer
- Note 120
Badri, Soudabeh Varasteh
v.M.C.I. (F.C.T.D.,
no. IMM-4971-99), Gibson, November 30, 2000.
Return to note 120 referrer
- Note 121
Dumitru, Nicolae
v.M.E.I. (F.C.T.D.,
no. IMM-911-93), Nol, February 25, 1994, Reported:
Dumitru
v. Canada (Minister of Employment and Immigration) (1994), 27
Imm. L.R. (2d) 62 (F.C.T.D.).
Return to note 121 referrer
- Note 122
Giron
v. Canada (Minister of Employment and Immigration) (1992), 143
N.R. 238 (F.C.A.);
Ye, Zhi Bing
v.M.E.I. (F.C.A.,
no. A-711-90), Stone, MacGuigan, Henry, June 24, 1992;
Xu, Zhe Ru
v.M.E.I. (F.C.A.,
no. A-666-90), Mahoney, Stone, Robertson, September 8, 1992;
Ankrah, Bismark
v.M.E.I. (F.C.T.D.,
no. T-1986-92), Nol, March 16, 1993;
Ibrahim, Mohamed Abdisalam Hagi
v.M.E.I. (F.C.A.,
no. A-382-91), Heald, MacGuigan, Linden, March 17, 1993;
Aden, Ibrahim Ali
v.M.E.I. (F.C.A.,
no. A-813-91), Hugessen, MacGuigan, Dcary, April 28, 1993;
Pathmanathan, Ambika
v.M.E.I. (F.C.T.D.,
no. 93-A-67), McKeown, June 24, 1993;
Karikari, Kwame
v.M.E.I. (F.C.A.,
no. A-275-92), Heald, Stone, McDonald, April 25, 1994, Reported:
Karikari
v. Canada (Minister of Employment and Immigration) (1994), 169
N.R. 131 (F.C.A.);
Gyimah, Joycelyn
v.M.C.I. (F.C.T.D.,
no. IMM-1011-93), Gibson, November 10, 1995. In
Singh, Narinder
v.M.C.I. (F.C.T.D.,
no. IMM-3882-00), Blanchard, May 14, 2001, the Court found that the
CRDD did not base its decision on the behaviour of the agent of persecution in finding that the claimant's testimony was not plausible, but rather on the credibility of the testimony and the facts relied on to support the claimant's story.
Return to note 122 referrer
- Note 123
In a number of cases, the Court has alerted the
CRDD not to impose "Western concepts", "Canadian paradigms" or "North American logic and experience", without regard to the socio-political and cultural context before it and the particular circumstances of the claimant. See, respectively:
Ye, Zhi Bing
v.M.E.I. (F.C.A.,
no. A-711-90), Stone, MacGuigan, Henry, June 24, 1992;
Bains
v. Canada (Minister of Employment and Immigration) (1993), 20
Imm. L.R. (2d) 296 (F.C.T.D.); and
Rahnema, Massoud
v.S.G.C. (F.C.T.D.,
no. IMM-1740-93), Gibson, October 15, 1993, Reported:
Rahnema
v. Canada (Solicitor General) (1993), 22
Imm. L.R. (2d) 127 (F.C.T.D.). In
Rahnema, the Iranian claimant had explained that on the advice of a smuggling agent, he destroyed a false Iranian passport after passing through Philippine emigration controls on his way to Japan for his trip to Canada. The Court found that the panel's conclusion that the claimant's explanation was implausible amounted to an error of law because the panel had applied its own standard of analysis and judgment "rather than a reasonable standard of one similarly situated" to the claimant. See also
Sun, Yun Yau
v.M.E.I. (F.C.T.D.,
no. IMM-604-93), Gibson, August 5, 1993, Reported:
Sun
v. Canada (Minister of Employment and Immigration) (1993), 24
Imm. L.R. (2d) 226 (F.C.T.D.).
Return to note 123 referrer
- Note 124
Giron
v. Canada (Minister of Employment and Immigration) (1992), 143
N.R. 238 (F.C.A.);
Callejas
v. Canada (Minister of Employment and Immigration) (1994), 23
Imm. L.R. (2d) 253 (F.C.T.D.). In
Samani, Hassan
v.M.C.I. (F.C.T.D.,
no. IMM-4271-97), Hugessen, August 19, 1998, the Court commented that a finding of implausibility is rarely convincing when it is based on behaviour the
CRDD finds dangerous: politically committed persons often take risks. See also
Bukaka-Mabiala, Aime
v.M.C.I. (F.C.T.D.,
no. IMM-4296-98), Rouleau, June 18, 1999, to that effect.
Return to note 124 referrer
- Note 125
Ponce-Yon, Carlos Roberto
v.M.E.I. (F.C.T.D.,
no. A-770-92), Jerome, February 17, 1994.
Return to note 125 referrer
- Note 126
In
Najeebdeen, Mohamed Saly
v.M.C.I. (F.C.T.D.,
no. IMM-5438-98), Lutfy, July 30, 1999, the Court held that it was wrong to extrapolate that a specific incident alleged by a claimant is implausible because it runs counter to the general political relationship between groups (the Tamil Muslim community and the Sri Lankan government). See also
Ponniah, Ganeshalingam
v.M.C.I. (F.C.,
no. IMM-4620-02), Russell, September 2, 2003, 2003
FC 1016;
Ali, Ahmed
v.M.C.I. (F.C.T.D.,
no. IMM-3981-02), Russell, September 2, 2003, 2003
FC 982.
Return to note 126 referrer
- Note 127
Tubacos, Zoltan
v.M.C.I. (F.C.T.D.,
no. IMM-1373-01), Kelen, February 28, 2002, 2002
FCT 225;
Cazak, Liliana
v.M.C.I. (F.C.T.D.,
no. IMM-1110-01), Blanchard, April 9, 2002, 2002
FCT 390;
Trembliuk, Yuriy
v.M.C.I. (F.C.,
no. IMM-5873-02), Gibson, October 30, 2003, 2003
FC 1264.
Return to note 127 referrer
- Note 128
In
Pluhar, Lubomir
v.M.C.I. (F.C.T.D.,
no. IMM-5334-98), Evans, August 27, 1999, and in
Mitac, Josef
v.M.C.I. (F.C.T.D.,
no. IMM-5988-98), Lutfy, September 13, 1999, the Court stated that reliance on a tribunal member's observations concerning a claimant's "physical appearance" is, in the absence of expert evidence, "inherently dangerous." But see
Bartonik, Daniel
v.M.C.I. (F.C.T.D.,
no. IMM-304-00), Muldoon, July 26, 2000, where the Court upheld the
CRDD's finding that the claimant was not a Roma and would not be perceived as one after considering factors such as appearance, language, cultural practices and friends. See also, to the same effect,
Tugambayev, Azamat
v.M.C.I. (F.C.T.D.,
no. IMM-3806-99), Reed, June 30, 2000. In
Mikhailov, Alexandr
v.M.C.I. (F.C.T.D.,
no. IMM-4265-99), Denault, August 24, 2000, the
CRDD disbelieved the attacks suffered by the claimant were of an anti-Semitic nature because, as confirmed by the claimant himself, he "does not have a Jewish name, is not a practising Jew, and his physical appearance does not lead you to believe he is Jewish." On the other hand, in
Szostak, Pawel
v.M.C.I. (F.C.T.D.,
no. IMM-3161-00), Lemieux, August 23, 2001, 2001
FCT 938, the
CRDD's finding, based on the claimant's appearance, education and friends and a language test, was held to constitute stereotyping for which there was no evidentiary foundation.
Return to note 128 referrer
- Note 129
See
Leung, Shuk-Shuen
v.M.E.I. (F.C.T.D.,
no. A-1162-92), Jerome, May 20, 1994, where the Court pointed out that findings of implausibility are inherently subjective assessments which are largely dependant on the individual Board member's perceptions of what constitutes rational behaviour. The appropriateness of a particular finding can therefore only be assessed if the Board's decision clearly identifies all of the facts which form the basis for its conclusions. In
Alza, Julian Ulises
v.M.C.I. (F.C.T.D.,
no. IMM-3657-94), MacKay, March 26, 1996, the Court noted that while findings based on implausibilities may not be readily documented by specific reasons, the general factors in the claimant's evidence or the surrounding circumstances which make the allegations implausible should be referred to in the
CRDD's decision. In
Shoka, Sabri
v.M.C.I. (F.C.T.D.,
no. IMM-5055-01), Campbell, June 26, 2002, 2002
FCT 720, the Court suggests that the knowledge that is required to make plausibility findings must be known to the claimant and must be on the record to determine if the plausibility conclusions can be justified. See, however,
Zakaria, Mirza
v.M.C.I. (F.C.T.D.,
no. IMM-3363-98), Pinard, August 13, 1999, which suggests that the duty to state in clear and unmistakable terms why the panel disbelieves the claimant does not apply when the claimant's evidence is implausible ("inherently suspect or improbable").
Return to note 129 referrer
- Note 130
Xu, Zhe Ru
v.M.E.I. (F.C.A.,
no. A-666-90), Mahoney, Stone, Robertson, September 8, 1992;
Bains
v. Canada (Minister of Employment and Immigration) (1993), 20
Imm. L.R. (2d) 296 (F.C.T.D.).
Return to note 130 referrer
- Note 131
Leung, Shuk-Shuen
v.M.E.I. (F.C.T.D.,
no. A-1162-92), Jerome, May 20, 1994;
Rodriguez, Maria Angelica Magan
v.M.C.I. (F.C.T.D.,
no. IMM-4790-94), MacKay, March 1, 1996.
Return to note 131 referrer
- Note 132
In
Giron
v. Canada (Minister of Employment and Immigration) (1992), 143
N.R. 238 (F.C.A.), the Court stated at 239:
The Convention Refugee Determination Division of the Immigration and Refugee Board "the Board") chose to base its finding of lack of credibility here for the most part, not on internal contradictions, inconsistencies, and evasions, which is the heartland of the discretion of triers of fact, but rather on the implausibility of the claimant's account in light of extrinsic criteria such as rationality, common sense, and judicial knowledge, all of which involve the drawing of inferences, which triers of fact are in little, if any, better position than others to draw.
See also
Attakora
v. Canada (Minister of Employment and Immigration) (1989), 99
N.R. 168 (F.C.A.);
Ansong
v. Canada (Minister of Employment and Immigration) (1989), 9
Imm. L.R. (2d) 94 (F.C.A.);
Salamat
v. Canada (Immigration Appeal Board) (1989), 8
Imm. L.R. (2d) 58 (F.C.A.);
Ye, Zhi Bing
v.M.E.I. (F.C.A.,
no. A-711-90), Stone, MacGuigan, Henry, June 24, 1992;
Bains
v. Canada (Minister of Employment and Immigration) (1993), 20
Imm. L.R. (2d) 296 (F.C.T.D.);
Ayimadu-Antwi, Yaw
v.M.E.I. (F.C.T.D.,
no. A-1086-92), McKeown, October 29, 1993.
Return to note 132 referrer
- Note 133
The Court clarified the case law on this point in
Aguebor, Clement
v.M.E.I. (F.C.A.,
no. A-1116-11), Marceau, Desjardins, Dcary, July 16, 1993, Reported:
Aguebor
v. Canada (Minister of Employment and Immigration) (1993), 160
N.R. 315 (F.C.A.), at 316-17:
It is correct, as the court said in
Giron, that it may be easier to have a finding of implausibility review[ed] where it results from inferences than to have a finding of non-credibility review[ed] where it results from the conduct of the witness and from inconsistencies in the testimony. The court did not, in saying this, exclude the issue of the plausibility of an account from the Board's field of expertise, nor did it lay down a different test for intervention depending on whether the issue is "plausibility" or "credibility".
There is no longer any doubt that the Refugee Division, which is a specialized tribunal, has complete jurisdiction to determine the plausibility of testimony As long as the inferences drawn by the tribunal are not so unreasonable as to warrant our intervention, its findings are not open to judicial review.
Subsequent decisions have held this to mean that the same standard of judicialence that applies to findings of credibility also applies to findings of implausibility. See
Babchine, Igor
v.M.C.I. (F.C.T.D.,
no. IMM-768-95), Cullen, February 15, 1996; and
Ayodele, Abiodun
v.M.C.I. (F.C.T.D.,
no. IMM-4812-96), Gibson, December 30, 1997, which reaffirmed
Aguebor as the central authority on the review of implausibility findings.
Return to note 133 referrer
- Note 134
In
Chen, Xing Kang
v.M.C.I. (F.C.T.D.,
no. IMM-808-00), Gibson, November 29, 2000, the claimant was unable to describe coherently the sterilization process he allegedly underwent. In
Akindele, James Olanusi
v.M.C.I. (F.C.T.D.,
no. IMM-6617-00), Pinard, January 18, 2002, 2002
FCT 37, the Court upheld the
CRDD's finding that the claimant's oral testimony was vague and confusing and that his written testimony lacked coherence.
Return to note 134 referrer
- Note 135
Rokni, Mohammad Mehdi
v.M.C.I. (F.C.T.D.,
no. IMM-6068-93), Muldoon, January 27, 1995. In
Rahmaty, Parviz
v.M.C.I. (F.C.T.D.,
no. IMM-1221-95), Jerome, May 13, 1996, in upholding the
CRDD's decision the Court noted: "The essence of the Board's decision was that it was implausible for a person in [the claimant's] position to be able to supply only the vague and general responses which he provided at the hearing." In
Hidri, Ylber
v.M.C.I. (F.C.T.D.,
no. IMM-554-00), MacKay, August 24, 2001, 2001
FCT 949, the Court uheld the
CRDD's finding of lack of credibility based, in part, on the claimant's lack of knowledge regarding basic information on which the claim was based. See also
He, Lian Sai
v.M.C.I. (F.C.T.D.,
no. IMM-5957-00), Blanchard, November 15, 2001, 2001
FCT 1256. In
Baines, Manjit Kaur
v.M.C.I. (F.C.T.D.,
no. IMM-1146-01), Nadon, May 28, 2002, 2002
FCT 60, the Court held that knowing little about a very close friend of the family or any other piece of information that should be in a claimant's knowledge has nothing to do with cultural differences, and that proof of alleged cultural differences should be presented.
Return to note 135 referrer
- Note 136
Ullah, Khan Asad
v.M.C.I. (F.C.T.D.,
no. IMM-5639-99), Heneghan, November 22, 2000, where the Court had the impression that the
CRDD member erroneously expected the claimant's answers about his religion to be equivalent to the member's own knowledge of that religion. In
Yilmaz, Metin
v.M.C.I. (F.C.,
no. IMM-3952-02), Pinard, July 11, 2003, 2003
FC 2004, the Court found that the
RPD required a level of political knowledge usually demanded of an active member rather than a party supporter and inappropriately compared the claimant to a well-informed person in the free world. See also
Mushtaq, Tasaddaq
v.M.C.I. (F.C.,
no. IMM-4324-02), Pinard, September 23, 2003, 2003
FC 1066. One line of cases holds that it is incumbent on the Board to state the expectation of knowledge and evidentiary basis against which the claimant and his or her evidence is compared. See
Yu, Xiao Ling
v.M.C.I. (F.C.T.D.,
no. IMM-5531-01), Campbell, October 23, 2002, 2002
FCT 1107;
Shah, Syed Fayyaz Ahmed
v.M.C.I. (F.C.T.D.,
no. IMM-2015-02), Campbell, February 7, 2003, 2003
FCT 137.
Return to note 136 referrer
- Note 137
Leung, Tak On
v.M.E.I. (F.C.A.,
no. A-756-91), Stone, Linden, McDonald, July 8, 1993;
Wen, Li Xia
v.M.E.I. (F.C.A.,
no. A-397-91), Stone, Linden, McDonald, June 10, 1994;
Mostajelin, Mohammad
v.M.E.I. (F.C.A.,
no. A-122-90), Stone, Desjardins, Dcary, January 15, 1993.
Return to note 137 referrer
- Note 138
King-Adjei, Augustine
v.M.E.I. (F.C.T.D.,
no. T-1584-91), Jerome, March 16, 1992.
Return to note 138 referrer
- Note 139
In
Liu, Zhi Gan
v.M.C.I. (F.C.T.D.,
no. IMM-3143-96), Gibson, August 29, 1997, Reported:
Liu
v. Canada (Minister of Citizenship and Immigration) (1997), 40
Imm. L.R. (2d) 168 (F.C.T.D.), the Court questioned how, without further explanation, the claimant's occupation (as a fisherman) could be determined from his demeanour. In
Chowdhury, Wahid
v.M.C.I. (F.C.T.D.,
no. IMM-2896-02), Blanchard, April 9, 2003, 2003
FCT 416, the Court pointed out that there is no universal standard for the demeanour of a political activist.
Return to note 139 referrer
- Note 140
See
Par
v. Goulet, [1959]
Que. S.C. 348, at 354, per Marquis
J. In
Sun, Yuerong
v.M.E.I. (F.C.T.D.,
no. 92-A-7176), Nol, June 23, 1993, the claimant's testimony "went from being crystal clear to nebulous when confronted with questions by the members." In
Arumugam, Kandasamy
v.M.E.I. (F.C.T.D.,
no. IMM-1406-93), Reed, January 20, 1994, the claimant's demeanour when reciting answers concerning facts set out in the
PIF differed from that when giving evidence about matters outside his narrative. In
Sandhu, Jasbir Singh
v.M.E.I. (F.C.T.D.,
no. 93-T-46), MacKay, March 3, 1994, the claimant was found not to be spontaneous, answered with hesitation and evasiveness, and did not answer in some areas in a direct and precise manner. In
Gao, Zhen
v.M.C.I. (F.C.T.D.,
no. IMM-5989-00), Nadon, August 31, 2001, 2001
FCT 978, the claimant's testimony "sounded wooden and rehearsed."
Return to note 140 referrer
- Note 141
Bains
v. Canada (Minister of Employment and Immigration) (1993), 20
Imm. L.R. (2d) 296 (F.C.T.D.), at 298-299. In
Ankrah, Bismark
v.M.E.I. (F.C.T.D.,
no. T-1986-92), Nol, March 16, 1993, the claimant's testimony was found to be "totally devoid of any emotion or personal involvement" to be believed. However, the appropriateness of drawing adverse conclusions from the claimant's lack of emotion when recalling traumatic events, without further elaboration, has been questioned. In
Shaker, Tahereh
v.M.C.I. (F.C.T.D.,
no. IMM-3449-98), Reed, June 30, 1999, the Court commented that, in the circumstances, it was not apparent why one should have expected the claimant to become emotional when describing a beating, so long after the event. See also
London, Luz Dary Aguedo
v.M.C.I. (F.C.T.D.,
no. IMM-1830-02), Blanchard, March 31, 2003, 2003
FCT 376;
Kathirkamu, Saththiyathasan
v.M.C.I. (F.C.T.D.,
no. IMM-3430-02), Russell, April 8, 2003, 2003
FCT 409;
Ahmad, Nawaz
v.M.C.I. (F.C.T.D.,
no. IMM-944-02), Rouleau, April 23, 2003, 2003
FCT 471. In
Mitac, Josef
v.M.C.I. (F.C.T.D.,
no. IMM-5988-98), Lutfy, September 13, 1999, the Court held that there was no rational connection, in this case, between the claimants' comportment ("smiling and laughing" and "facial expressions") and the panel's conclusion that they were not Roma.
Return to note 141 referrer
- Note 142
Khawaja, Mohammad Rehan
v.M.C.I. (F.C.T.D.,
no. IMM-5385-98), Denault, July 28, 1999. See also
2.4.10. Medical Reports.
Return to note 142 referrer
- Note 143
In
Plumb
v. W.C. MacDonald
Regd.;
Latimer
v. Foster Tobacco
Co., [1926] 1
D.L.R. 899 (Ont. C.A.) (reversed on other grounds
sub nom. W.C. MacDonald Regd.
v. Latimer; Jasperson
v. Plumb, [1928] 3
D.L.R. 870 (P.C.)), Smith
J. stated at 918-19:
There are fortunately few cases in which the credibility of witnesses has to be determined by a trial Judge on conclusions drawn alone from the appearance and demeanour of these witnesses in the box. This may be an element of more or less weight according to circumstances, but at best it is a very uncertain guide Conduct and demeanour are at all events of minor importance where the whole evidence and surrounding circumstances furnish guides of a more reliable nature.
Return to note 143 referrer
- Note 144
In
Bains
v. Canada (Minister of Employment and Immigration) (1993), 20
Imm. L.R. (2d) 296 (F.C.T.D.), the Court stated at 299:
The respondent suggested that the [claimant] wasevasive in answering questions. However, the only suggested evasiveness occurred when the [claimant] clearly did not understand the question and when that was straightened out he answered the question. In my view, it is not evasion to misunderstand a question and grope for answers.
In
Aden, Ibrahim Ali
v.M.E.I. (F.C.A.,
no. A-813-91), Hugessen, MacGuigan, Dcary, April 28, 1993, the Court noted:
The Refugee Division gave three reasons why they said they did not believe the [claimant]. The second reason given was that the [claimant] had been "vague" because he could not specify whether the attacking forces had used bombs or artillery in the raid on Hargeisa in May 1988: that, in our view, was both unfair and unreasonable. The victims of military attacks on civilian populations cannot be expected to appreciate the niceties of the various systems employed to deliver explosive charges against them.
In
Shakir, Hani Thabit
v.M.C.I. (F.C.T.D.,
no. IMM-2671-95), Reed, April 3, 1996, the Court recognized that a transcript "does not show pauses between questions and answers, or within an answer. It does not show[a claimant's] 'body language'."
Return to note 144 referrer
- Note 145
In
Fouladi, Esmaeil
v.M.C.I. (F.C.T.D.,
no. IMM-1405-94), Reed, December 9, 1994, the claimant had been convicted of a fairly serious charge of fraud committed in Canada. The Court stated that the
CRDD "may discount much of the [claimant's] story if they conclude that he is not a person who concerns himself about whether or not he tells the truth."
Return to note 145 referrer
- Note 146
Tvauri, Omar
v.M.C.I. (F.C.T.D.,
no. IMM-4873-99), Dawson, July 20, 2000.
Return to note 146 referrer
- Note 147
James, Olabisi
v.M.C.I. (F.C.T.D.,
no. IMM-5480-99), Heneghan, April 25, 2001, 2001
FCT 385. The Court distinguished the case of
Olutu, Charles
v.M.C.I. (F.C.T.D.,
no. IMM-834-99), Dub, December 31, 1996, where the claimant had used three different names to obtain welfare assistance and had been charged in that connection. The Court held that such misrepresentations in other matters do not constitute misrepresentations for the purposes of Convention refugee status under
s. 69.2(2) of the
Immigration Act (now
s. 109(1) of
IRPA). Both these cases were decided in the context of vacation applications.
Return to note 147 referrer
- Note 148
Gavryushenko, Petr
v.M.C.I. (F.C.T.D.,
no. IMM-5912-99), Lutfy, July 26, 2000, the Court pointed out that while the fact that a person does not seize the first opportunity of claiming refugee status in a signatory country may be a relevant factor in assessing credibility, it does not thereby constitute a waiver of his or her right to claim that status in another country. The Court cited James C. Hathaway,
The Law of Refugee Status (Toronto: Butterworths, 1991), at page 46: "There is no requirement in the Convention that a refugee seek protection in the country nearest her home, or even in the first state to which she flees. Nor is it requisite that a claimant travel directly from her country of first asylum to the state in which she intends to seek durable protection."
Return to note 148 referrer
- Note 149
Heer, Karnail Singh
v.M.E.I. (F.C.A.,
no. A-474-87), Heald, Marceau, Lacombe, April 13, 1988.
Return to note 149 referrer
- Note 150
M.C.I.v. Sivalingam-Yogarajah, Subajiny (F.C.T.D.,
no. IMM-2649-00), Pelletier, September 13, 2001, 2001
FCT 1018.
Return to note 150 referrer
- Note 151
See
Castillejos, Joaquin Torres
v.M.C.I. (F.C.T.D.,
no. IMM-1950-94), Cullen, December 20, 1994, where the Court stated that delay points to a lack of subjective fear and does not relate to the objective basis of the claim.
Return to note 151 referrer
- Note 152
See, for example,
Espinosa, Roberto Pablo Hernandez
v.M.C.I. (F.C.,
no. IMM-5667-02), Rouleau, November 12, 2003, 2003
FC 1324. As pointed out in James C. Hathaway,
The Law of Refugee Status (Toronto: Butterworths, 1991), at page 53, "the Convention establishes [in Article 31(1)] an obligation on refugees to 'present themselves without delay to the authorities and show good cause for their illegal entry or presence.' It seems right, therefore, to inquire into the circumstances of any protracted postponement of a refugee claim as a means of evaluating the sincerity of the claimant's need for protection. Where there is no reasonable excuse for the delay, an inference of evasion going to credibility is often warranted."
Return to note 152 referrer
- Note 153
There are numerous cases where the Federal Court has upheld Board decisions that considered the issue of delay as a factor in assessing a claimant's overall credibility. In
Bello, Salihou
v.M.C.I. (F.C.T.D.,
no. IMM-1771-96), Pinard, April 11, 1997, noted below, the Court found the Board's finding of subjective fear was integrally related to the credibility of a claimant's evidence. In
Molnar, Elekne
v.M.C.I. (F.C.T.D.,
no. IMM-1736-01), Nadon, March 26, 2002, 2002
FCT 343, the Court questioned whether the Board could conclude there was no subjective fear and at the same time draw no conclusion as to the claimants' credibility. However, in
Ibrahimov, Fikrat
v.M.C.I. (F.C.,
no. IMM-4258-02), Heneghan, October 10, 2003, 2003
FC 1185, the Court found that, in the circumstances of that case, where the claim was based on the cumulative effect of incidents of discrimination, reliance on delay to doubt credibility dis not seem logical.
Return to note 153 referrer
- Note 154
Hue, Marcel Simon Chang Tak
v.M.E.I. (F.C.A.,
no. A-196-87), Marceau, Teitelbaum, Walsh, March 18, 1988;
Huerta
v. Canada and Immigration) (1993), 157
N.R. 225 (F.C.A.). In
Papsouev, Vitali
v.M.C.I. (F.C.T.D.,
no. IMM-4619-97), Rouleau, May 19, 1999, Reported:
Papsouev
v. Canada (Minister of Citizenship and Immigration) (1999), 49
Imm. L.R. (2d) 48 (F.C.T.D.), the Court commented that delay "is usually a corollary reason to what is considered to be more central for refusing a claimant." See also
Dcruze, Jacob Ranjit
v.M.C.I. (F.C.T.D.,
no. IMM-2910-98), Rouleau, June 17, 1999, where the Court held that "[e]ven if the explanations for the delay lack credibility, such a finding is generally not determinative of the claim."
Return to note 154 referrer
- Note 155
Huerta
v. Canada (Minister of Employment and Immigration) (1993), 157
N.R. 225 (F.C.A.), at 227.
Return to note 155 referrer
- Note 156
Papsouev, Vitali
v.M.C.I. (F.C.T.D.,
no. IMM-4619-97), Rouleau, May 19, 1999, Reported:
Papsouev
v. Canada (Minister of Citizenship and Immigration) (1999), 49
Imm. L.R. (2d) 48 (F.C.T.D.) (claimants were Jews from Russia);
Sinko, Jozsef
v.M.C.I. (F.C.T.D.,
no. IMM-569-01), Blanchard, August 23, 2002, 2002
FCT 903;
Dink, Bekir Adnan
v.M.C.I. (F.C.T.D.,
no. IMM-2051-02), Heneghan, March 20, 2003, 2003
FCT 334 (psychological report stated the claimant's disorder was as a result of his fear of returning to his country);
Ahmed, Rafat Mohamed
v.M.C.I. (F.C.,
no. IMM-6333-02), Tremblay-Lamer, October 1, 2003, 2003
FC 1135 (letters stating that the claimant's family has been the target of pressure and threats from the Djibouti government).
Return to note 156 referrer
- Note 157
In
Cruz, Fernando Rodriguez
v.M.C.I. (F.C.T.D.,
no. IMM-3848-93), Simpson, June 16, 1994, the claimant did not make his claim until 7 years after his departure from his native Colombia, and more than 2 years after arriving in Canada. See also
Nimour, Zoubida Bougherara
v.M.C.I. (F.C.T.D.,
no. IMM-6254-98), Denault, September 7, 1999;
Kamana, Jimmy
v.M.C.I. (F.C.T.D.,
no. IMM-5998-98), Tremblay-Lamer, September 24, 1999;
Gamassi, Hichem
v.M.C.I. (F.C.T.D.,
no. IMM-5488-99), Pinard, November 10, 2000;
Riadinskaia, Ekaterina
v.M.C.I. (F.C.T.D.,
no. IMM-4881-99), Nadon, January 12, 2001. In
Bello, Salihou
v.M.C.I. (F.C.T.D.,
no. IMM-1771-96), Pinard, April 11, 1997, where the claimant had returned to his native Cameroon on two occasions and had failed to claim refugee status in the 7 years preceding his claim in Canada, the Court found it was not unreasonable for the
CRDD to conclude that the claimant's actions were not consistent with those of a person with a subjective fear of persecution and to make the further finding that the claimant's evidence was not credible.
Return to note 157 referrer
- Note 158
In
Ilie, Lucian Ioan
v.M.C.I. (F.C.T.D.,
no. IMM-462-94), MacKay, November 22, 1994, a decision rendered without reference to
Huerta, the Court upheld the
CRDD's conclusion that the claimant's failure to make a claim in any of the countries through which he travelled for six months before arriving in Canada negated a well-founded fear of persecution in his native Romania. See also
Hankali, Levent
v.M.C.I. (F.C.T.D.,
no. IMM-2575-94), MacKay, March 14, 1996;
Al-Kahtani, Naser Shafi Mohammad
v.M.C.I. (F.C.T.D.,
no. IMM-2879-94), MacKay, March 13, 1996 (claimant's leaving and returning to Saudi Arabia several times indicated he was not at risk and was inconsistent with his alleged difficulties with the government).
Return to note 158 referrer
- Note 159
The following Federal Court decisions, among others, have upheld
RPD decisions rejecting claims under both
s. 96 and 97 of
IRPA because of inordinate delays in claiming refugee protection or return to the country of alleged persecution such as to negate a subjective fear:
Duarte, Augustina Castelanos
v.M.C.I. (F.C.T.D.,
no. IMM-6616-02), Kelen, August 21, 2003, 2003
FCT 988;
Rivera, Jesus Vargas
v.M.C.I. (F.C.,
no. IMM-5826-02), Beaudry, November 5, 2003, 2003
FC 1292;
Espinosa, Roberto Pablo Hernandez
v.M.C.I. (F.C.,
no. IMM-5667-02), Rouleau, November 12, 2003, 2003
FC 1324 (14-month delay in claiming in Canada; the Board stated that the importance one gives to the element of delay depends on the circumstances of each case, and the more inexplicable the delay, the greater the probability that subjective fear is absent);
Sangha, Ajit Singh
v.M.C.I. (F.C.,
no. IMM-1597-03), Pinard, December 19, 2003, 2003
FC 1488;
Akacha, Kamel
v.M.C.I. (F.C.,
no. IMM-548-03), Pinard, December 19, 2003, 2003
FC 1489;
Emerance, Pembe Yodi
v.M.C.I. (F.C.,
no. IMM-5546-02), Beaudry, January 19, 2004, 2004
FC 36. However, some judges of the Federal Court have held that the Board cannot dismiss a claim under
s. 97 based on a lack of subjective fear or behaviour inconsistent with a well-founded fear of persecution, as evidenced by a delay in leaving the country of alleged persecution or a delay in claiming protection abroad, because the test under
s. 97 does not require a determination of subjective fear of persecution. See
Shah, Mahmood Ali
v.M.C.I. (F.C.,
no. IMM-4425-02), Blanchard, September 30, 2003, 2003
FC 1121;
Ghasemian, Marjan
v.M.C.I. (F.C.,
no. IMM-5462-02), Gauthier, October 30, 2003, 2003
FC 1266 (the Court accepted that the absence of a subjective fear, as evidenced by the claimant's delay in claiming protection, is fatal to a claim under
s. 96).
Return to note 159 referrer
- Note 160
In
Singh, Ajay
v.M.C.I. (F.C.T.D.,
no. IMM-1997-00), Nadon, March 21, 2001, 2001
FCT 215, the Court held that the
CRDD ought to have questioned the claimant in order to determine whether there were reasons which justified the delay in leaving two regions in India.
Return to note 160 referrer
- Note 161
In
Mejia, Maria Esperanza Martinez
v.M.C.I. (F.C.T.D.,
no. IMM-1040-95), Simpson, July 29, 1996, the Court held that the
CRDD erred by not squarely addressing whether it doubted the claimant's subjective fear (and by not mentioning that the claimant had been in hiding). In
Beltran, Luis Fernando Berrio
v.M.C.I. (F.C.T.D.,
no. IMM-829-96), Dub, October 29, 1996, the Court held that since the
CRDD did not question the claimant's credibility and had accepted as truthful his allegations regarding his problems in Colombia, it should explain why it did not accept the reasons he provided for not seeking police assistance and for the delay in presenting his claim in Canada. In
Lelo, Emmanuel Bernard
v.M.C.I. (F.C.T.D.,
no. IMM-865-98), Teitelbaum, December 22, 1998, the Court held that it was not sufficient to simply say, after noting a delay of four months, "That is not the attitude of someone who fears persecution." However, failure to determine the reason for the delay in leaving was not a sufficient basis to overturn the
CRDD decision in
Ahmed, Leaquat
v.M.C.I. (F.C.T.D.,
no. IMM-3912-96), Richard, May 8, 1997, where the
CRDD's remaining five conclusions relating to credibility were reasonably open to it and were central to the claim. In
Gnana-Easwary, Rudrasigamany
v.M.C.I. (F.C.T.D.,
no. IMM-3823-97), Gibson, September 8, 1998, the Court took the
CRDD to task for its circular conclusions regarding credibility and lack of a well-founded fear: "It is an error of law to conclude that the applicant's evidence is not credible because she has not established a well-founded fear by reason of reavailment and delay and at the same time to conclude that her explanations for reavailment and delay are to be rejected because her evidence is not to be believed."
Return to note 161 referrer
- Note 162
Hue, Marcel Simon Chang Tak
v.M.E.I. (F.C.A.,
no. A-196-87), Marceau, Teitelbaum, Walsh, March 18, 1988;
Yoganathan, Kandasamy
v.M.C.I. (F.C.T.D.,
no. IMM-3588-97), Gibson, April 20, 1998;
Gyawali, Nirmal
v.M.C.I. (F.C.,
no. IMM-926-03), Tremblay-Lamer, September 24, 2003, 2003
FC 1099.
Return to note 162 referrer
- Note 163
In
Diluna
v. Canada (Minister of Employment and Immigration) (1995), 29
Imm. L.R. (2d) 156 (F.C.T.D.), the Court held, in
Obiter, that the
CRDD should have considered a psychiatric assessment that supported the claimant's assertion that she delayed seeking refugee status due to post-traumatic stress syndrome. In
Griffith, Marion
v.M.C.I. (F.C.T.D.,
no. IMM-4543-98), Campbell, July 14, 1999, the Court held that in assessing the claimant's delay, being a victim of domestic violence, in leaving her country and making a claim in Canada, the
CRDD should not have used the "objective" standard of the "reasonable man". See also
Begum, Sultana Nur Niger
v.M.C.I. (F.C.T.D.,
no. IMM-1774-00), Blais, February 13, 2001, 2001
FCT 59;
Ignatova, Anna (Ganna)
v.M.C.I. (F.C.T.D.,
no. IMM-5771-01), Kelen, December 11, 2002, 2002
FCT 1287 ("refugee claims based on spousal abuse are often delayed due to the nature of spousal abuse,
i.e. the embarrassment for the victim which the victim will suppress"). In
Stoica, Valentin
v.M.C.I. (F.C.T.D.,
no. IMM-1388-99), Pelletier, September 12, 2000, where the
CRDD rejected the possibility of a subjective fear stemming from the claimant's mental illness, the Court held: "The assumption that an individual with a genuine fear of persecution would take the first opportunity to claim refugee status does not depend on the validity or source of the fear."
Return to note 163 referrer
- Note 164
In the following cases, the
CRDD concerns were upheld:
Huerta
v. Canada (Minister of Employment and Immigration) (1993), 157
N.R. 225 (F.C.A.), where the claimant continued to work and attend classes;
Radulescu, Petrisor
v.M.E.I. (F.C.T.D.,
no. 92-A-7164), McKeown, June 16, 1993, where there was a two-year delay in leaving Romania after police beatings and telephone threats;
Rosales
v. Canada (Minister of Employment and Immigration) (1993), 23
Imm. L.R. (2d) 100 (F.C.T.D.), where the claimant delayed leaving for 9 months despite the disappearance of a political colleague;
De Beltran
v. Canada (Secretary of State) (1994), 28
Imm. L.R. (2d) 157 (F.C.T.D.), where there was a five-month delay in leaving El Salvador after receiving a threat;
Hristov, Hristo
v.M.E.I. (F.C.T.D.,
no. IMM-2090-94), Cullen, January 5, 1995, where the claimants delayed leaving Bulgaria, despite earlier opportunities to do so, even though they experienced physical attacks, break-ins at their home, and a fire-bombing of their car.
But see
Ezi-Ashi, James Chike
v.S.S.C. (F.C.T.D.,
no. IMM-1257-93), Wetston, February 28, 1994;
Zuniga, Alexis Ramon Garcia
v.S.G.C. (F.C.T.D.,
no. IMM-118-94), Teitelbaum, July 4, 1994. In
Farahmandpour, Tahereh
v.M.C.I. (F.C.T.D.,
no. IMM-92-97), Dub, December 15, 1997, the
CRDD erred in not considering the tragic situation the 78-year-old claimant found herself after the death of her husband and that the delays (en route and in Canada) were explained by illness. In
Lakicevic, Predrag
v.M.C.I. (F.C.T.D.,
no. IMM-6231-99), Hansen, September 7, 2001, 2001
FCT 1003, the
CRDD erred in failing to address the claimant's explanation that he would go into hiding, moving from town to town, to avoid arrest. The Federal Court has held that, when a claim is based on a number of discriminatory or harassing incidents which culminate in an event which forces a person to leave his country, the issue of delay cannot be used as a significant factor to doubt that person's subjective fear of persecution. See
Shah, Mahmood Ali
v.M.C.I. (F.C.,
no. IMM-4425-02), Blanchard, September 30, 2003, 2003
FC 1121;
Ibrahimov, Fikrat
v.M.C.I. (F.C.,
no. IMM-4258-02), Heneghan, October 10, 2003, 2003
FC 1185.
Return to note 164 referrer
- Note 165
The Board's decisions were upheld in the following cases:
Ramirez, Jose
v.M.E.I. (F.C.T.D.,
no. 92-A-7114), Nol, June 2, 1993, where the
CRDD did not find it credible that the claimant would have returned to the family farm after two alleged death threats;
Tao, Zhen
v.M.E.I. (F.C.T.D.,
no. 92-A-7164), Nol, June 22, 1993, where the
CRDD did not believe the claimant spent a year in hiding while, at the same time, procuring official government documents. But see, however,
Wong, Siu Ying
v.M.E.I. (F.C.A.,
no. A-804-90), Heald, Marceau, Linden, April 8, 1992, Reported:
Wong
v. Canada (Minister of Employment and Immigration) (1992), 141
N.R. 236 (F.C.A.), where the
CRDD erroneously concluded that the claim lacked the required subjective component because the claimant had not gone into hiding immediately after hearing she was under surveillance;
Giron
v. Canada (Minister of Employment and Immigration) (1992), 143
N.R. 238 (F.C.A.), where the
CRDD erroneously drew an adverse inference from the fact that the claimant did not go into hiding, though testifying that he withdrew from some activities for a time and took precautions in public (the Court found these actions to be reasonable in the circumstances). In
Sabaratnam, Thavakaran
v.M.E.I. (F.C.A.,
no. A-536-90), Mahoney, Stone, Robertson, October 2, 1992, the Court commented that a person "successfully hiding from his persecutor can scarcely be said to be experiencing no problems," and went on to say that "[s]uch a finding is perverse." In a similar vein, in
Tung
v. Canada (Minister of Employment and Immigration) (1991), 124
N.R. 388 (F.C.A.), at 393, the Court held that the
CRDD's finding that the claimant was able to remain in China for about a month following the abandonment of his job "without any adverse incident," ignored "totally the [claimant's] testimony that he was in hiding for a large part of this period."
Return to note 165 referrer
- Note 166
See, for example:
Saez, Maritza Elizabeth Lagos
v.M.E.I. (F.C.T.D.,
no. 92-A-6908), Dub, June 23, 1993;
Bogus, Mehmet
v.M.E.I. (F.C.T.D.,
no. T-153-93), Rothstein, November 26, 1993;
Thandi, Ajaib Singh
v.S.S.C. (F.C.T.D.,
no. IMM-4547-93), Nadon, May 27, 1994;
Lameen, Ibrahim
v.S.S.C. (F.C.T.D.,
no. A-1626-92), Cullen, June 7, 1994;
Ilie, Lucian Ioan
v.M.C.I. (F.C.T.D.,
no. IMM-462-94), MacKay, November 22, 1994;
Wey, Edward Kolawole
v.S.S.C. (F.C.T.D.,
no. IMM-2758-94), Gibson, February 21, 1995;
Memarpour, Mahdi
v.M.C.I. (F.C.T.D.,
no. IMM-3113-94), Simpson, May 25, 1995;
Hristov, Hristo
v.M.E.I. (F.C.T.D.,
no. IMM-2090-94), Cullen, January 5, 1995;
Hankal, Levent
v.M.C.I. (F.C.T.D.,
no. IMM-2575-94), MacKay, March 14, 1996;
Ali, Salah Mohamed
v.M.C.I. (F.C.T.D.,
no. IMM-2402-95), Tremblay-Lamer, April 25, 1996. In
Sabapathy, Thevi
v.M.C.I. (F.C.T.D.,
no. IMM-1507-96), Campbell, March 27, 1997, the claimant abandoned protection in the
U.K. and delayed making a claim in Canada. In
Madoui, Nidhal Abderrah
v.M.C.I. (F.C.T.D.,
no. IMM-660-96), Denault, October 25, 1996, the claimant relied, unsuccessfully, on statistics showing that the country where he had sojourned (Italy) rarely granted refugee status to claimants like him, to argue that he had no obligation to seek refugee status there. In
Bains, Gurmukh Singh
v.M.C.I. (F.C.T.D.,
no. IMM-3698-98), Blais, April 21, 1999, the claimant relied, unsuccessfully, on the fact that he had been waiting five to six years for a decision on his claim in England before deciding to come to Canada. In the context of repeat claims, in
Vairamuthu, Rajanayagam
v.M.C.I. (F.C.T.D.,
no. IMM-5407-97), Nadon, December 1, 1998, the Court held that, if the claimants had feared for their lives, they would have made claims in the
U.S. where they stayed for four months after their claims were rejected in Canada. See also, to the same effect,
Sellathamby, Saroginidevi
v.M.C.I. (F.C.T.D.,
no. IMM-1854-99), Dawson, June 8, 2000. In
Gilbert, Jean-Baptiste
v.M.C.I. (F.C.T.D.,
no. IMM-3033-01), Lemieux, June 26, 2002, 2002
FCT 709, the Court upheld the Board's finding that country-shopping undermined the claimants' credibitlity, having attempted to enter the
U.S. illegally but opting to return to Canada and apply for refugee status.
But note the following cases where the Court found that a short stopover was inconsequential or that the claimant had provided plausible and uncontradicted explanations for not seeking to remain or claim refugee status in various countries en route to Canada. In
Hue, Marcel Simon Chang Tak
v.M.E.I. (F.C.A.,
no. A-196-87), Marceau, Teitelbaum, Walsh, March 8, 1988, the Court held that the
IAB erred by overlooking that the claimant did not need to seek protection as long as he was a sailor on a ship. In
Owusu-Ansah
v. Canada (Minister of Employment and Immigration) (1989), 8
Imm. L.R. (2d) 106 (F.C.A.), the Ghanaian claimant provided reasons why he could not have safely stayed in neighbouring Togo or Nigeria. In
Tung
v. Canada (Minister of Employment and Immigration) (1991), 124
N.R. 388 (F.C.A.), the claimant, who was at all times in transit, provided reasons which led him to select Canada as a safe haven over other countries he had considered with the assistance of his agent. In
Ahani, Roozbeh
v.M.C.I. (F.C.T.D.,
no. IMM-4985-93), MacKay, January 4, 1995, the claimant was in transit only for 9 days. In
El-Naem, Faisal
v.M.C.I. (F.C.T.D.,
no. IMM-1723-98), Gibson, February 17, 1997, Reported:
El-Naem
v. Canada (Minister of Citizenship and Immigration) (1997), 37
Imm. L.R. (2d) 304 (F.C.T.D.), the Court held that the claimant's one-year sojourn in Greece without claiming refugee status there was reasonable given his age (19), his lack of funds and family support there, and his desire to come to Canada where his brother had made a successful refugee claim, and the fact that refugee protection in Greece was problematic. In
Soueidan, Mohamad Abdallah
v.M.C.I. (F.C.T.D.,
no. IMM-5770-00), Blais, August 28, 2001, 2001
FCT 956, the Court considered the panel's having raised the failure of the claimants to make claims in the
U.S. was to be somewhat exaggerated given their 8-day stay and their explanation that the family had always intended to go to Canada because the principal claimant could speak French. In
Raveendran, Premela
v.M.C.I. (F.C.T.D.,
no. IMM-657-02), Beaudry, January 21, 2002, 2003
FCT 49, where the claimant resided in the
U.S. between repeat claims made in Canada, the Court faulted the
CRDD for not taking into account the claimant's fear of being sent back to Sri Lanka if he made a claim for asylum in the
U.S. In
Molay, Boimu Felly
v.M.C.I. (F.C.T.D.,
no. IMM-2406-02), Pinard, September 24, 2003, 2003
FC 1069, the Court held that the
CRDD erred when it stated that the claimant should have claimed refugee status in Belgium or France since the claimant was just in transit and had no duty to do so. See also, to the same effect,
Musharraf, Suhaib Rao
v.M.C.I. (F.C.T.D.,
no. IMM-3149-02), Lemieux, May 28, 2003, 2003
FCT 662. However, in
Kapinga-Mukenia, Bernadette
v.M.C.I. (F.C.T.D.,
no. IMM-6391-00), Nadon, January 24, 2002, 2002
FCT 83, the Court held that, while the failure to claim in the
U.S., and waiting 3 days before claiming in Canada, could not in themselves justify a negative finding regarding the claimant's credibility, these facts, when examined in light of all the evidence, could be considered by the panel in its assessment of credibility. Similarly, in
Breucop, Victor Manuel Duran
v.M.C.I. (F.C.,
no. IMM-2713-03), Rouleau, January 27, 2004, 2004
FC 117, the Court upheld the Board's adverse inference from a failure to claim in the
U.S. despite a stay of only two days where one of the claimant had a brother already living there.
In
Basmenji, Aiyoub Choubdari
v.M.C.I. (F.C.T.D.,
no. IMM-4811-96), Wetston, January 16, 1998, the Court rejected the proposition that the claimant, an Iranian married to a Japanese national, should have attempted to claim some form of status while in Japan, prior to making a claim for refugee status in Canada. A similar position was taken in
Priadkina, Yioubov
v.M.C.I. (F.C.T.D.,
no. IMM-2034-96), Nadon, December 16, 1997, where the Court stated that the claimants (Russian Jews from Kazakhstan) had no duty to seek refugee status in Russia or Israel before claiming in Canada. However, in
Moudrak, Vanda
v.M.C.I. (F.C.T.D.,
no. IMM-1480-97), Teitelbaum, April 1, 1998, the Court held that the
CRDD did not err by taking into account the failure of the claimants, nationals of Ukraine, to investigate the possibility of Polish citizenship (which was not guaranteed) when she travelled to Poland: "the Board was perfectly entitled to find that this was inconsistent with a well-founded fear of persecution." In
Osman, Abdalla Abdelkarim
v.M.C.I. (F.C.T.D.,
no. IMM-527-00), Blanchard, March 22, 2001, 2001
FCT 229, the Court found that the
CRDD's emphasis on the claimant's failure to return to the Philippines, where he had married and had two children, was in the context of his subjective fear and credibility and was not unreasonable. A similar finding was made in
Kombo, Muhammad Ali
v.M.C.I. (F.C.T.D.,
no. IMM-4181-00), McKeown, May 7, 2001, 2001
FCT 439, where the
CRDD challenged the claimant's credibility and subjective fear because he had taken no action to secure international protection by registering with the
UNHCR in Kenya, where he had resided for eleven years as refugee from Somalia and had married a Kenyan citizen and had two Kenyan children. On the other hand, in
Pavlov, Igor
v.M.C.I. (F.C.T.D.,
no. IMM-4401-00), Heneghan, June 7, 2001, 2001
FCT 602, the Court held that the
CRDD's conclusion about the lack of credibility of the Russian Jewish claimants, who "could have gone to Israel as full citizens In the panel's view, their failure to take advantage of this option is indicative of a lack of subjective fear," was related to a misapprehension of the law: the
CRDD mistakenly assumed that the claimants were required to seek protection in Israel, which was not as of right and which the claimants did not wish to do, before applying for Convention refugee status in Canada. The Court cited
Basmenji, supra, but did not refer to
Moudrak and
Osman, supra.
Return to note 166 referrer
- Note 167
In
Ilie, Lucian Ioan
v.M.C.I. (F.C.T.D.,
no. IMM-462-94), MacKay, November 22, 1994, the Court stated that the
CRDD is entitled to take notice of the status of countries that are signatories to the Convention and may also assume that such countries will meet their obligation to implement the Convention within their own territory, unless evidence to the contrary is adduced. For a list of signatories to the Refugee Convention and Protocol see Annex IV of the
UNHCRHandbook on Procedures and Criteria for Determining Refugee Status; for a more up-to-date list see:
http://www.unhcr.fr/cgi-bin/texis/vtx/search?page=search&comid=4b66a9846&cid=4acb455f18&keywords=RSDguidelines. But see
Tung
v. Canada (Minister of Employment and Immigration) (1991), 124
N.R. 388 (F.C.A.), at 394, where Justice Stone noted: "There is no evidence that any of these countries in question had ratified the 1951
UN Convention and the 1967
Protocol or that they had adopted laws implementing those instruments."
Return to note 167 referrer
- Note 168
See for example:
Caballero, Fausto Ramon Reyes
v.M.E.I. (F.C.A.,
no. A-266-91), Marceau (dissenting), Desjardins, Ltourneau, May 13, 1993;
Larue, Jacqueline Anne
v.M.E.I. (F.C.T.D.,
no. 92-A-6666), Nol, May 13, 1993;
Tejani, Abdulkarim
v.M.E.I. (F.C.T.D.,
no. 92-T-1306), Reed, June 2, 1993;
Abou El Joud, Mohamad Ali
v.M.E.I. (F.C.T.D.,
no. A-21-93), Nadon, January 19, 1994;
Bogus, Mehmet
v.M.E.I. (F.C.T.D.,
no. T-153-93), Rothstein, November 26, 1993;
Zergani, Ahmad Jassemi
v.M.E.I. (F.C.A.,
no. A-311-92), Heald, Stone, McDonald, April 12, 1994;
Galdamez, Santo Peraza
v.M.E.I. (F.C.T.D.,
no. IMM-1544-94), McKeown, December 9, 1994;
Hoballah, Hassane
v.M.E.I. (F.C.T.D.,
no. IMM-3670-93), Joyal, January 10, 1995;
Gabeyehu, Bruck
v.M.C.I. (F.C.T.D.,
no. IMM-863-95), Reed, November 8, 1995;
Al-Kahtani, Naser Shafi Mohammad
v.M.C.I. (F.C.T.D.,
no. IMM-2879-94), MacKay, March 13, 1996;
Ali, Salah Mohamed
v.M.C.I. (F.C.T.D.,
no. IMM-2402-95), Tremblay-Lamer, April 25, 1996. In
Rodriguez, Carlos Alberto Servillon
v.M.C.I. (F.C.T.D.,
no. IMM-2815-01), Beaudry, March 20, 2002, 2002
FCT 292, the Court stated that, while a person who fears for his life may return to his country for pressing reasons, this was not the case here, where the claimant had done so because he wanted to live with his family.
But see
Maldonado
v. Canada (Minister of Employment and Immigration), [1980] 2
F.C. 302 (C.A.), where the Court pointed out that the former Immigration Appeal Board (IAB) ignored evidence that the claimant's brief return to his homeland was prompted by considerations for the safety of his family and he had obtained exit papers there enabling him to leave;
Aragon, Luis Roberto
v.M.E.I. (F.C.T.D.,
no. IMM-4632-93), Nadon, August 12, 1994, where the Court held that
CRDD had not properly considered the circumstances surrounding the claimant's visit to his country (he went to see his mother);
Parada, Felix Balmore
v.M.C.I. (F.C.T.D.,
no. A-38-92), Cullen, March 6, 1995, where the claimant alleged he had to return to obtain funds and his passport and remained in hiding until he left (CRDD made no adverse finding of credibility). In
Kanji, Mumtaz Badurali
v.M.C.I. (F.C.T.D.,
no. IMM-2451-96), Campbell, April 4, 1997, the Court held that since the
CRDD did not make an adverse finding of credibility, it erred in finding, on the basis of the purely circumstantial evidence of returns to India, that the claimant had reavailed herself of protection and did not have a subjective fear. In
Yoganathan, Kandasamy
v.M.C.I. (F.C.T.D.,
no. IMM-3588-97), Gibson, April 20, 1998, the Court noted that as long as the claimant had his "sailor's papers" and a "ship to sail on," he was safe from persecution in Sri Lanka (to which he returned from time to time) and did not have to seek protection elsewhere; at the first opportunity following notification that his employment contract would not be renewed, he made his claim to refugee status. In
Camargo, Camillo Ponce
v.M.C.I. (F.C.,
no. IMM-3361-02), O'Keefe, December 9, 2003, 2003
FC 1434, where the claimant had returned to his native Colombia for 4 days prior to his departure to the
U.S., during which time he testified he was in hiding, the Court cited paragraph 134 of the
UNHCRHandbook, namely, that a temporary visit, without an intention to permanently reside in the country of alleged persecution, should not result in the loss of refugee status. The Federal Court has held that the Board erred in finding a lack of subjective fear when the claimant was removed to his or her country, and thus did not return voluntarily:
Kurtkapan, Osman
v.M.C.I. (F.C.T.D.,
no. IMM-5290-01), October 25, 2002, 2002
FCT 1114 (claimant was deported to Turkey from the
U.K. and Holland);
Milaskics, Eva
v.M.C.I. (F.C.T.D.,
no. IMM-623-02), Campbell, January 23, 2003, 2003
FCT 71 (claimant was sent to Hungary from Canada under a deemed departure order).
Return to note 168 referrer
- Note 169
Tsafack, David
v.M.C.I. (F.C.T.D.,
no. IMM-1979-95), Pinard, April 10, 1996;
Panta, Paul Acuna
v.M.C.I.;
Choque, Juan Jose Orozco
v.M.C.I. (F.C.T.D.,
no. IMM-1076-96), Jerome, July 24, 1997. See, however,
Maldonado
v. Canada (Minister of Employment and Immigration), [1980] 2
F.C. 302 (C.A.), where the Court pointed out that the
IAB ignored the fact that the claimant was able to obtain his passport (and exit papers) through his brother's contacts with the government;
Jbel, Bouazza
v.M.E.I. (F.C.T.D.,
no. A-1058-92), Gibson, September 10, 1993, where the fact that claimant already had obtained a passport before the occurrence that motivated him to leave his country was found not to be inconsistent with his decision to leave for the reason he stated;
Yada, Rosa Emilia Cardoza
v.M.C.I. (F.C.T.D.,
no. IMM-4912-96), MacKay, January 16, 1998, where the claimant applied for a new El Salvadoran passport after coming to Canada on the instruction of a Canadian Immigration officer. In
Chandrakumar, Thurairajah
v.M.E.I. (F.C.T.D.,
no. A-1649-92), Pinard, May 16, 1997, the Court held that the
CRDD erred in asuming that the simple action of renewing one's passport outside the country of nationality, without more, was sufficient to establish re-availment of protection.
Return to note 169 referrer
- Note 170
Orelien
v. Canada (Minister of Employment and Immigration), [1992] 1
F.C. 592 (C.A.);
Choque, Juan Jose Orozco
v.M.C.I. (F.C.T.D.,
no. IMM-1076-96), Jerome, July 24, 1997;
Mejia, Erdulfo
v.M.C.I. (F.C.T.D.,
no. IMM-4548-96), Heald, September 26, 1997.
Return to note 170 referrer
- Note 171
Huerta
v. Canada (Minister of Employment and Immigration) (1993), 157
N.R. 225 (F.C.A.);
Hanna, Nwora Kiriakos
v.M.E.I. (F.C.T.D.,
no. IMM-220-93), Cullen, February 3, 1994;
Ezi-Ashi, James Chike
v.S.S.C. (F.C.T.D.,
no. IMM-1257-93), Wetston, February 28, 1994;
Thandi, Ajaib Singh
v.S.S.C. (F.C.T.D.,
no. IMM-4547-93), Nadon, May 27, 1994;
Marquez, Ricardo
v.M.E.I. (F.C.T.D.,
no. IMM-3166-93), Simpson, June 1, 1994;
Lameen, Ibrahim
v.S.S.C. (F.C.T.D.,
no. A-1626-92), Cullen, June 7, 1994;
Carranza-Gonzalez, Salomon Osmar
v.M.C.I. (F.C.T.D.,
no. IMM-6078-93), Teitelbaum, November 1, 1994, Reported:
Carranza-Gonzalez
v. Canada (Minister of Employment and Immigration) (1994), 26
Imm. L.R. (2d) 118 (F.C.T.D.);
Kaur, Harbans
v.M.C.I. (F.C.T.D.,
no. IMM-1990-94), MacKay, April 6, 1995;
Hankali, Levent
v.M.C.I. (F.C.T.D.,
no. IMM-2575-94), MacKay, March 14, 1996;
Panta, Paul Acuna
v.M.C.I. (F.C.T.D.,
no. T-2217-93), Simpson, July 26, 1996.
Return to note 171 referrer
- Note 172
In
Singh, Ajay
v.M.C.I. (F.C.T.D.,
no. IMM-1997-00), Nadon, March 21, 2001, 2001
FCT 215, the Court found that the three-day delay in filing the refugee claim appears to be "insignificant."
Return to note 172 referrer
- Note 173
Surujpal
v. Canada (Minister of Employment and Immigration) (1985), 60
N.R. 73 (F.C.A.).
Return to note 173 referrer
- Note 174
In
Williams, Debby
v.S.S.C. (F.C.T.D.,
no. IMM-4244-94), Reed, June 30, 1995, the Court accepted as "entirely credible"
at that time (i.e., shortly after the introduction of the Gender Guidelines), the claimant's explanation that she did not know she was entitled to claim refugee status on the ground of spousal abuse until after she had contacted a lawyer.
Return to note 174 referrer
- Note 175
In
M.C.I.v. Sivalingam-Yogarajah, Subajiny (F.C.T.D.,
no. IMM-2649-00), Pelletier, September 13, 2001, 2001
FCT 1018, the claim was made only after a fiance sponsorship broke down.
Return to note 175 referrer
- Note 176
De La Torre, Mario Guillermo Fernandez
v.M.C.I. (F.C.T.D.,
no. IMM-3787-00), McKeown, May 9, 2001, 2001
FCT 452;
Gyawali, Nirmal
v.M.C.I. (F.C.,
no. IMM-926-03), Tremblay-Lamer, September 24, 2003, 2003
FC 1099 (claimant had a student visa and had applied for permanent residency). Note, however, that in
Ahmad, Mahmood
v.M.C.I. (F.C.T.D.,
no. IMM-1012-01), Tremblay-Lamer, February 14, 2002, 2002
FCT 171, the Court upheld the Board's rejection of a claim based largely on a 2-year delay in claiming refugee status, while the claimant was on a student visa in Canada and then applied for permanent residency.
Return to note 176 referrer
- Note 177
In
Papsouev, Vitali
v.M.C.I. (F.C.T.D.,
no. IMM-4619-97), Rouleau, May 19, 1999, Reported:
Papsouev
v. Canada (Minister of Citizenship and Immigration) (1999), 49
Imm. L.R. (2d) 48 (F.C.T.D.), the Court noted: "It is perfectly conceivable that a lawyer would advise a claimant who fits both criteria to file an application for permanent residence as opposed to a refugee claim."
Return to note 177 referrer
- Note 178
Gabeyehu, Bruck
v.M.C.I. (F.C.T.D.,
no. IMM-863-95), Reed, November 8, 1995.
Return to note 178 referrer
- Note 179
Tang, Xiaoming
v.M.C.I. (F.C.T.D.,
no. IMM-3650-99), Reed, June 21, 2000.
Return to note 179 referrer
- Note 180
Fajardo, Mercedes
v.M.E.I. (F.C.A.,
no. A-1238-91), Mahoney, Robertson, McDonald, September 15, 1993, Reported:
Fajardo
v. Canada (Minister of Employment and Immigration) (1994), 21
Imm. L.R. (2d) 113 (F.C.A.);
Leitch, Roger Rodney
v.M.C.I. (F.C.T.D.,
no. IMM-2910-94), Gibson, February 6, 1995;
Quinteros, Carolina Elizabeth Lovato
v.M.C.I. (F.C.T.D.,
no. IMM-4030-97), Campbell, September 22, 1998.
Return to note 180 referrer
- Note 181
Salamat
v. Canada (Immigration Appeal Board) (1989), 8
Imm. L.R. (2d) 58 (F.C.A.);
Siddique, Ashadur Rahman
v.M.E.I. (F.C.A.,
no. A-1137-88), Pratte, Hugessen, Desjardins, November 23, 1989;
Boucher
v. Canada (Minister of Employment and Immigration) (1989), 105
N.R. 66 (F.C.A.);
Frimpong
v. Canada (Minister of Employment and Immigration) (1989), 8
Imm. L.R. (2d) 183 (F.C.A.);
Sathanandan
v. Canada (Minister of Employment and Immigration) (1991), 15
Imm. L.R. (2d) 310 (F.C.A.).
Return to note 181 referrer
- Note 182
Ansong
v. Canada (Minister of Employment and Immigration) (1989), 9
Imm. L.R. (2d) 94 (F.C.A.).
Return to note 182 referrer
- Note 183
Armson
v. Canada (Minister of Employment and Immigration) (1989), 9
Imm. L.R. (2d) 150 (F.C.A.);
Leung
v. Canada (Minister of Employment and Immigration) (1990), 12
Imm. L.R. (2d) 43 (F.C.A.).
Return to note 183 referrer
- Note 184
Okyere-Akosah, Kwame
v.M.E.I. (F.C.A.,
no. A-92-91), Marceau, Desjardins, Dcary, May 6, 1992.
Return to note 184 referrer
- Note 185
Orelien
v. Canada (Minister of Employment and Immigration), [1992] 1
F.C. 592 (C.A.), at 605.
Return to note 185 referrer
- Note 186
Maldonado
v. Canada (Minister of Employment and Immigration), [1980] 2
F.C. 302 (C.A.), at 305, where the Court said: "When [a claimant] swears to the truth of certain allegations, this creates a presumption that those allegations are true unless there be reason to doubt their truthfulness."
Return to note 186 referrer
- Note 187
Thind, Ranjit Singh
v.M.E.I. (F.C.A.,
no. A-538-83), Heald, Mahoney, Lalande, October 27, 1983;
Villarroel
v. Canada (Minister of Employment and Immigration) (1979), 31
N.R. 50 (F.C.A.), also reported as
Re Salvatierra and Canada (Minister of Employment and Immigration) (1979), 99
D.L.R. (3d) 525 (F.C.A.);
Permaul
v. Canada (Minister of Employment and Immigration) (1983), 53
N.R. 323 (F.C.A.);
Attakora
v. Canada (Minister of Employment and Immigration) (1989), 99
N.R. 168 (F.C.A.);
Sathanandan
v. Canada (Minister of Employment and Immigration) (1991), 15
Imm. L.R. (2d) 310 (F.C.A.);
Okyere-Akosah, Kwame
v.M.E.I. (F.C.A.,
no. A-92-91), Marceau, Desjardins, Dcary, May 6, 1992;
Lachowski
v. Canada (Minister of Employment and Immigration) (1992), 18
Imm. L.R. (2d) 134 (F.C.T.D.);
Bains
v. Canada (Minister of Employment and Immigration) (1993), 20
Imm. L.R. (2d) 296 (F.C.T.D.);
Owusu, Anthony
v.M.C.I. (F.C.T.D.,
no. IMM-2422-94), Wetston, May 4, 1995. This principle appears to apply also to statutory declarations by the claimant. See
Liang, Xiao Dong
v.M.C.I. (F.C.T.D.,
no. IMM-3668-00), Pinard, April 19, 2001, 2001
FCT 341.
Return to note 187 referrer
- Note 188
Hernandez, Ileana Araceli
v.M.E.I. (F.C.T.D.,
no. IMM-1511-93), Denault, May 9, 1994.
Return to note 188 referrer
- Note 189
Derbas, Ahmad Issa
v.S.G.C. (F.C.T.D.,
no. A-1128-92), Pinard, August 18, 1993.
Return to note 189 referrer
- Note 190
Prasad, Mahendra
v.S.S.C. (F.C.T.D.,
no. A-1109-92), Jerome, October 13, 1994. In
Hercules, Pedro Monge
v.M.C.I. (F.C.T.D.,
no. IMM-1196-93), Gibson, August 25, 1993, the Court stated: "I find that there did not exist an obligation on the part of the
CRDD in this case to accept sworn allegations as true, even though credibility is not in question, where those allegations are in the nature of a speculative conclusion, and whether or not that speculation is well-founded."
Return to note 190 referrer
- Note 191
Kong, Win Kee
v.M.E.I. (F.C.T.D.,
no. IMM-471-93), Reed, January 27, 1994, Reported:
Kong
v. Canada (Minister of Employment and Immigration) (1994), 23
Imm. L.R. (2d) 179 (F.C.T.D.);
Matharu, Maninder Singh
v.M.C.I. (F.C.T.D.,
no. IMM-868-00), Pelletier, January 9, 2002, 2002
FCT 19.
Return to note 191 referrer
- Note 192
Ovakimoglu
v. Canada (Minister of Employment and Immigration) (1983), 52
N.R. 67 (F.C.A.);
Attakora
v. Canada (Minister of Employment and Immigration) (1989), 99
N.R. 168 (F.C.A.) (claimant did not provide a medical report to substantiate his claim of injury);
Lachowski
v. Canada (Minister of Employment and Immigration) (1992), 18
Imm. L.R. (2d) 134 (F.C.T.D.);
Ahortor
v. Canada (Minister of Employment and Immigration) (1993), 21
Imm. L.R. (2d) 39 (F.C.T.D.) (claimant failed to offer documentation of his arrest).
The rationale for this general principle appears to be found in the
UNHCRHandbook on Procedures and Criteria for Determining Refugee Status, which states:
196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. In most cases a person fleeing from persecution will have arrived with the barest necessities and very frequently even without personal documents.
197. The requirement of evidence should not thus be too strictly applied in view of the difficulty of proof inherent in the special situation in which an applicant for refugee status finds himself.
However, paragraph 197 of the
Handbook adds that
Allowance for such possible lack of evidence does not, however, mean that unsupported statements must necessarily be accepted as true if they are inconsistent with the general account put forward by the applicant.
Return to note 192 referrer
- Note 193
Selvarajah, Rajkumar
v.M.E.I. (F.C.A.,
no. A-342-91), Heald, Stone, McDonald, April 14, 1994;
Oblitas, Jorge
v.M.C.I. (F.C.T.D.,
no. IMM-2489-94), Muldoon, February 2, 1995. In
Miral, Stefnie Dinisha
v.M.C.I. (F.C.T.D.,
no. IMM-3392-97), Muldoon, February 12, 1999, the Court commented that it is unrealistic to require a refugee claimant to have with her paperwork and documents detailing her arrest history in the country from which she just fled. However, in
Syed, Naqeeb-Ur-Rehman
v.M.C.I. (F.C.T.D.,
no. IMM-1613-97), MacKay, March 13, 1998, the Court held that, given that the
CRDD found the claimant's story to be implausible, the lack of corroboration in the form of newspaper stories or even a letter from his wife (the claimant alleged he had received some) was a valid consideration. In
Herrera, Endigo Guiller Caceres
v.M.C.I. (F.C.T.D.,
no. IMM-27-37-97), Muldoon, September 28, 1998, the Court found, in the circumstances of that case, that since it was not presented, the
CRDD was entitled to conclude the arrest warrant did not exist. In
Sinnathamby, Nageswararajah
v.M.C.I. (F.C.T.D.,
no. IMM-4086-00), Blanchard, May 14, 2001, 2001
FCT 473, the Court held that given the credibility concerns explicitly put to the claimants, the
CRDD did not err in drawing a negative inference by reason of the claimants' failure to adduce corroborating evidence.
Return to note 193 referrer
- Note 194
Kaur, Diljeet
v.M.E.I. (F.C.T.D.,
no. 93-A-377), Nol, June 2, 1993, Reported:
Kaur
v. Canada (Minister of Employment and Immigration) (1993), 21
Imm. L.R. (2d) 301 (F.C.T.D.).
Return to note 194 referrer
- Note 195
Adu, Peter
v.M.E.I. (F.C.A.,
no. A-194-92), Hugessen, Strayer, Robertson, January 24, 1995, per Hugessen
J.
Return to note 195 referrer
- Note 196
In
Boateng, Ewurama
v.M.E.I. (F.C.T.D.,
no. 92-A-6524), McKeown, June 1, 1993, the Court upheld the panel's finding, characterized as one "based on implausibility not lack of corroboration," that the claimant's alleged confrontation with Chairman Rawlings' wife was not credible because the consequent arrest of eight leading executive members of a large and important organization would have been reported on by one of the human rights monitoring agencies. See also
Osei, Gyane Nana
v.M.E.I. (F.C.T.D.,
no. T-2992-92), Reed, November 17, 1993;
Farahani, Fariborz Jalali
v.M.E.I. (F.C.T.D.,
no. IMM-3079-93), Simpson, June 1, 1994;
Mama, Salissou
v.M.E.I. (F.C.T.D., A-1454-92), Teitelbaum, October 17, 1994, upheld by the Court of Appeal, (F.C.A.,
no. A-596-94), Stone, Dcary, McDonald, May 26, 1997;
Owusu, Anthony
v.M.C.I. (F.C.T.D.,
no. IMM-2422-94), Wetston, May 4, 1995 (given the volume of documentary evidence, it was reasonable for the
CRDD to expect corroborating reports);
Oppong, Lawrence
v.M.C.I. (F.C.T.D.,
no. IMM-387-95), Richard, September 6, 1995 (CRDD noted that there was a free and vocal press).
Return to note 196 referrer
- Note 197
Gutierrez, Efren Alejandro Martinez
v.M.C.I. (F.C.T.D.,
no. IMM-3291-99), Campbell, April 6, 2000. But see
Gomez-Carrillo, Alex Fabricio
v.M.C.I. (F.C.T.D.,
no. IMM-918-97), Teitelbaum, April 10, 1997 (absence of specific reference to the targeting of deserters in El Salvador);
Bodokia, Nikoloz
v.M.C.I. (F.C.T.D.,
no. IMM-325-00), Blais, March 22, 2001, 2001
FCT 227 (it was reasonable for the
CRDD to conclude that the silence of the recent reports monitoring human rights abuses in Georgia was an indication that there were no current serious problems for Abkhazians).
Return to note 197 referrer
- Note 198
Ogbomo, Perpertual Aiwanfo
v.M.C.I. (F.C.T.D.,
no. IMM-5217-93), MacKay, November 22, 1994;
Osarogiagbon, Helen Iyekeoretin
v.M.C.I. (F.C.T.D.,
no. IMM-1326-98), Reed, June 23, 1999.
Return to note 198 referrer
- Note 199
Lachowski
v. Canada (Minister of Employment and Immigration) (1992), 18
Imm. L.R. (2d) 134 (F.C.T.D.);
Ahortor
v. Canada (Minister of Employment and Immigration) (1993), 21
Imm. L.R. (2d) 39 (F.C.T.D.);
Selvarajah, Rajkumar
v.M.E.I. (F.C.A.,
no. A-342-91), Heald, Stone, McDonald, April 14, 1994 (since the situation in question was of a local nature, it was not reasonable to expect specific mention thereof in the documentary evidence concerning the general situation in Sri Lanka);
Nebea, Idah Kaari
v.M.C.I. (F.C.T.D.,
no. IMM-5055-97), Strayer, August 17, 1998, Reported:
Nebea
v. Canada (Minister of Citizenship and Immigration) (1998), 45
Imm. L.R. (2d) 61 (F.C.T.D.) (the fact that some Kenyan newspapers were allowed to publish some articles critical of the government did not lead to the conclusion that the press would probably have published a story on persons persecuted for supplying information about a particular event).
Return to note 199 referrer
- Note 200
The following decisions of the Trial Division have held that documents such as letters and medical reports must be considered for what they say, and not for what they do not say:
Mahmud, Sultan
v.M.C.I. (IMM-5070-98), Campbell, May 12, 1999;
Bagri, Davinder Singh
v.M.C.I. (F.C.T.D.,
no. IMM-2908-98), Campbell, May 25, 1999 (medical report);
Solis, Anastacio Roberto Vera
v.M.C.I. (F.C.T.D.,
no. IMM-1094-98), Evans, March 17, 1999;
Khandaker, Jahangir, Alam
v.M.C.I. (F.C.T.D.,
no. IMM-1703-01), Pinard, January 10, 2003, 2003
FCT 7. In
Tameh, Ali Farrokhi
v.M.C.I. (F.C.,
no. IMM-6266-02), Blanchard, December 15, 2003, 2003
FC 1468, the Court distinguished
Mahmud, because the Board's decision was not merely based on the fact that the letter failed to corroborate the claimant's claims, but on the fact that the substance of the letter was inconsistent with the claimant's explanation of the source of the letter. According to
Tameh, the case of
Mahmud stands for the proposition that letters cannot be relied upon to
contradict a claimant's story merely because they
do not corroborate his story. See also
Dzey, Oksana Olesy
v.M.C.I. (F.C.,
no. IMM-1-03), Mactavish, January 30, 2004, 2004
FC 167, where the Court upheld the
RPD's decision to give little weight to a hospital report that did not mention that the claimant's husband was the attacker since it did not go far in corroborating the claimant's story. For a different conclusion, see
Ignatova, Anna (Ganna)
v.M.C.I. (F.C.T.D.,
no. IMM-5771-01), Kelen, December 11, 2002, 2002
FCT 1287.
Return to note 200 referrer
- Note 201
Paragraph 196 of the
UNHCR Handbook provides as follows:
196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule.
Return to note 201 referrer
- Note 202
The following key points made in the Commentary continue to be relevant:
Members may expect claimants to be fully prepared to testify as to their identity at the outset of the hearing and to provide a reasonable explanation for their lack of proper documentation. The absence of a reasonable explanation for the lack of proper documentation may lead members to draw a negative inference when assessing a claimant's credibility or when determining the substantive basis of the claim. [Subsection IV. C, lines 353, 409 and 414]
If the evidence presented at the hearing in support of identity and other elements does not demonstrate reasonable diligence before the hearing in trying to overcome or address the lack of proper documentation, a panel may draw a negative inference from the lack of diligence at the time when it assesses a claimant's credibility. [Subsection IV. B, line 280]
In the absence of proper documents proving identity and other elements of the claim, the claimant must be able to offer sufficient credible or trustworthy evidence regarding these elements, in order to be able to discharge the burden of proving the claim. [Subsection IV. C, line 506]
Where a claimant is able to arrange for independent corroboration of identity or other elements of the claim but fails to do so without reasonable explanation, panels may draw a negative inference from the failure to act when assessing the claimant's credibility. [Subsection IV. C, line 546]
A negative inference as to credibility cannot be drawn from the simple fact of having destroyed or disposed of documents. The fact that a claimant may be able to offer a reasonable explanation for the destruction or disposal of personal documents means that panels may not automatically infer bad faith from the simple fact of having destroyed or disposed of such documents. [Subsection IV. D, lines 431 and 705]
Where, after considering the reasonableness of the explanation offered, members conclude that a claimant has destroyed or disposed of documents in bad faith, members may in most cases correctly draw a negative inference as to the credibility of the claim as a whole, although in some cases members may correctly draw such an inference only with respect to a particular aspect of credibility. [Subsection IV. D, line 711]
The Commentary applies to identity documents and other forms of "personal information documents". The notion of "identity" was interpreted broadly:
"identity" most commonly refers to the name(s) by which the claimant presently identifies, or in the past has identified, himself or herself. "Identity" also includes but is not limited to one or more of the following indications of personal status: country of nationality; country of former habitual residence; citizenship; race; ethnicity; linguistic background; and political, religious, or social affiliation.
Return to note 202 referrer
- Note 203
Singh, Nardeep
v.M.C.I. (F.C.T.D.,
no. IMM-2217-02), O'Reilly, May 6, 2003, 2003
FCT 556. The claimant was notified before the hearing of the requirement to provide identification documents. He asked for an adjournment of his hearing to make efforts to obtain documents he allegedly left in India. The request was denied as he had not been diligent in trying to obtain documentation. The
CRDD rejected the claim as there was no documentary evidence to establish his identity. No other credibility concerns were raised in the
RPD's decision.
Return to note 203 referrer
- Note 204
M.C.I.v. Gill, Randheer Singh (F.C.,
no. IMM-4191-02), Lemieux, November 28, 2003, 2003
FC 1398.
Return to note 204 referrer
- Note 205
As illustrated in
Elazi, Iseikeye Simon
v.M.C.I. (F.C.T.D.,
no. IMM-1038-99), Nadon, February 17, 2000.
Return to note 205 referrer
- Note 206
Amarapala, Priyanga Udayantha
v.M.C.I. (F.C.,
no. IMM-5034-03), Kelen, January 7, 2004, 2004
FC 12. The
RPD rejected the claim on grounds of credibility because the claimant was unable to produce any documentation to corroborate his involvement with the
UNP, the alleged agents of persecution. In its decision, the panel took into account
s. 7 of the
RPD Rules and the Commentary to that rule. No other credibility concerns were raised in the
RPD's decision.
Return to note 206 referrer
- Note 207
Singh, Nardeep
v.M.C.I. (F.C.T.D.,
no. IMM-2217-02), O'Reilly, May 6, 2003, 2003
FCT 556. The claimant was notified before the hearing of the requirement to provide identification documents. He asked for an adjournment of his hearing to make efforts to obtain documents he allegedly left in India. The request was denied as he had not been diligent in trying to obtain documentation. The
CRDD rejected the claim as there was no documentary evidence to establish his identity. No other credibility concerns were raised in the
RPD's decision.
Return to note 207 referrer
- Note 208
See
Ignacio, Jaime Dela Cruz
v.M.C.I. (F.C.,
no. IMM-5765-02), Simpson, September 24, 2003 (claimant did not provide documents of business dealings at the heart of the claim);
Matanga, Alice Baygwaka
v.M.C.I. (F.C.,
no. IMM-6271-02), Pinard, December 4, 2003, 2003
FC 1410 (claimant did not provide any serious explanation for the loss of her false French passport and the lack of official identification establishing her identity);
Kilic, Deniz
v.M.C.I. (F.C.,
no. IMM-612-03), Mosley, January 21, 2004, 2004
FC 84 (claimant did not have an acceptable explanation for his failure to produce documentary proof of his enrolment at the four universities mentioned in his
PIF and requested by the Board before the hearing;
RPD did not interpret
s. 106 in a manner that only a passport could establish identity). In
Umba, Laetitia Masial
v.M.C.I. (F.C.,
no. IMM-6318-02), Martineau, January 9, 2004, 2004
FC 25, the Court held that, if on their face, it is apparent that documents contain various irregularities, and are for that reason discounted, the
RPD can, in the absence of a satisfactory explanation, make a negative finding as to the credibility of a claimant. The Court stated that this is what is envisaged by
s. 106 of
IRPA.
Return to note 208 referrer
- Note 209
In
Umba, Laetitia Masial
v.M.C.I. (F.C.,
no. IMM-6318-02), Martineau, January 9, 2004, 2004
FC 25, the Court noted that the rules of natural justice were respected, as it was clear from the comments made that the panel had serious doubts with respect to the genuineness of the documents submitted and that the claimant's identity was at issue. Moreover, the claimant was given an opportunity to present her story completely and the panel considered and examined it carefully.
Return to note 209 referrer
- Note 210
See
Ibnmogdad, Moustapha Ould Ould
v.M.C.I. (F.C.,
no. IMM-332-03), Tremblay-Lamer, February 25, 2004, 2004
FC 321, where the Court held that such a conclusion was consistent with
s. 106 of
IRPA. See also
Umba, Laetitia Masial
v.M.C.I. (F.C.,
no. IMM-6318-02), Martineau, January 9, 2004, 2004
FC 25.
Return to note 210 referrer
- Note 211
Yip, Fu On
v.M.E.I. (F.C.T.D.,
no. A-921-92), Nadon, October 27, 1993.
Return to note 211 referrer
- Note 212
Kante, Abdoulaye
v.M.E.I. (F.C.T.D.,
no. IMM-2585-93), Nadon, March 23, 1994;
Tchiegang, Charlotte
v.M.C.I. (F.C.T.D.,
no. IMM-1621-02), Snider, February 27, 2003, 2003
FCT 249. In
Matarage, Lal Kumara Chandragupta
v.M.C.I. (F.C.T.D.,
no. IMM-1987-97), Lutfy, April 9, 1998, the Court upheld the
CRDD's finding that the claimant's evidence was also lacking in that he failed to submit supporting evidence that he could have obtained. In
Rajasegaram, Arulmalar
v.M.C.I. (F.C.T.D.,
no. IMM-2440-99), Reed, June 19, 2000, the Court held that the
CRDD was not required to accept uncorroborated evidence of a claimant where objective evidence is usually available. The
CRDD rejected the claim of a mother and two young children for whom there was no reliable evidence establishing identity, but accepted the claim of another child for whom there was a birth registration. In
Fuseini, Habiba
v.M.C.I. (F.C.T.D.,
no. IMM-5747-99), Simpson, November 6, 2000, the Court upheld the
CRDD finding that the claimant had not converted to Christianity. The claimant had not provided a letter from the church in Nigeria, had not been baptized and had no plans for baptism, and did not know the meaning of Easter or Christmas. In
Chen, Xing Kang
v.M.C.I. (F.C.T.D.,
no. IMM-808-00), Gibson, November 29, 2000, the upheld
CRDD relied on the following factors: there was no reference to forced sterilization in the notes of two interviews conducted by immigration officers shortly after the claimant's arrival in Canada; the claimant was unable to describe coherently the alleged sterilization process he underwent; the claimant provided no documentation to corroborate his sterilization, such documentation being normally provided to persons who underwent the procedure. In
Francis, David
v.M.C.I. (F.C.T.D.,
no. IMM-2114-00), Heneghan, February 16, 2001, 2001
FCT 93, among other credibility concerns, the
CRDD did not believe that the claimant resided in the northern part of Sri Lanka, having regard to the absence of any formal identification linking him to that part of the country. The Court upheld that decision, as well as the decision in
Balkhi, Sayed
v.M.C.I. (F.C.T.D.,
no. IMM-3398-00), McKeown, May 1, 2001, 2001
FCT 419, where the
CRDD found, in the context of credibility, the claimants not to be nationals of Afghanistan, having regard to the lack of any identity documents or corroborative witnesses.
Return to note 212 referrer
- Note 213
Abubakar, Suadh
v.M.C.I. (F.C.T.D.,
no. IMM-422-98), Campbell, July 31, 1998, Reported:
Abubakar
v. Canada (Minister of Citizenship and Immigration) (1998), 45
Imm. L.R. (2d) 186 (F.C.T.D.);
Lembagusala, Sungi Chantal
v.M.C.I. (F.C.T.D.,
no. IMM-3593-99), Campbell, April 20, 2000. In
Olojo, Omolara Abimbola
v.M.C.I. (F.C.T.D.,
no. IMM-3918-96), Lutfy, November 6, 1997, the Court held that it was speculative for the
CRDD to state that the claimant's counsel could have made the claimant aware of the importance of corroborating documentation. In
Tchiegang, Charlotte
v.M.C.I. (F.C.T.D.,
no. IMM-1621-02), Snider, February 27, 2003, 2003
FCT 249, the Court held the panel did indicate its concern regarding the lack of documentary evidence on the problems of
HIV positive persons in Cameroon, thus fulfilling its obligation to inform the claimant of the case she had to meet.
Return to note 213 referrer
- Note 214
Thurairajah, Uthayasankar
v.M.E.I. (F.C.T.D.,
no. IMM-2339-93), Tremblay-Lamer, March 11, 1994;
Veres, Gavril
v.M.C.I. (F.C.T.D.,
no. IMM-2227-00), Pelletier, November 24, 2000;
Bastos, Neusa Margarida Ferrao
v.M.C.I. (F.C.T.D.,
no. IMM-4255-00), O'Keefe, June 15, 2001, 2001
FCT 662. See also
2.6.2. Special Circumstances of the Case, which underscores the importance of taking into account gender and other considerations that may have an impact on the claimant's ability to obtain documentary evidence.
Return to note 214 referrer
- Note 215
Owusu-Ansah
v. Canada (Minister of Employment and Immigration) (1989), 8
Imm. L.R. (2d) 106 (F.C.A.).
Return to note 215 referrer
- Note 216
In
Takhar, Sukhjeevan Singh
v.M.C.I. (F.C.T.D.,
no. IMM-1961-98), Evans, February 19, 1999, the Court pointed out that it is not unusual for persons who are fleeing not to have all of their documents. In
Yimal, Mehmet
v.M.C.I. (F.C.,
no. IMM-5313-02), Russell, December 18, 2003, 2003
FC 1498, the Court stated: "It is clearly not reasonable to expect a refugee claimant from a war-torn country to arrive in Canada with all the requisite documentation needed to confirm every aspect of his or her claim." In
Farah, Kalthoum Abdirahman
v.M.E.I. (F.C.T.D.,
no. 92-A-6032), Reed, May 26, 1993, the Court upheld the
CRDD's decision rejecting as not credible the Somali claimant's explanation as to why she carried a Somali birth certificate but neither her original Somali passport nor the false Ethiopian passport which she used to enter the United States and only destroyed before coming to Canada. In
Balayah, Khadar Yusuf
v.M.C.I. (F.C.T.D.,
no. A-1395-92), Simpson, July 29, 1996, the Court upheld the
CRDD decision that it was implausible for the claimant to have left his only identity documents behind in a country torn by civil war given that he had a week to prepare for his departure. In
Oriakhi, Godwin
v.M.C.I. (F.C.T.D.,
no. IMM-2497-99), Lemieux, June 16, 2000, among other implausibilities, the
CRDD cited the fact that the claimant produced only one newspaper clipping of his alleged activism in Nigeria after testifying that such newspaper reports existed and his associate was still in Nigeria and could have sent them. See also
Osman, Abdirizak Said
v.M.E.I. (F.C.T.D.,
no. IMM-261-93), Nadon, December 22, 1993;
Achour, Lyes
v.M.C.I. (F.C.T.D.,
no. IMM-4040-99), Pinard, July 7, 2000;
Kular, Bakhshish Kaur
v.M.C.I. (F.C.T.D.,
no. IMM-1893-00), Rouleau, November 1, 2000;
Muthiyansa, Siriyalatha Herath
v.M.C.I. (F.C.T.D.,
no. IMM-3994-99), Hansen, February 2, 2001, 2001
FCT 17;
Kombo, Muhammad Ali
v.M.C.I. (F.C.T.D.,
no. IMM-4181-00), McKeown, May 7, 2001, 2001
FCT 439. On the other hand, in
Chouljenko, Vladimirv.M.C.I. (F.C.T.D.,
no. IMM-3879-98), Denault, August 9, 1999, the Court held that the
CRDD did not have reasonable grounds, in light of the evidence on file of the claimant's nationality, to require him to make "sufficient effort to obtain documents proving" his Armenian nationality. See also
Ourazmetov, Damir
v.M.C.I. (F.C.T.D.,
no. IMM-3247-99), Denault, May 16, 2000. In
Manoharan, Sharmalee Rajmohan
v.M.C.I. (F.C.T.D.,
no. IMM-4465-01), Tremblay-Lamer, October 2, 2002, 2002
FCT 1033, the Court held that the Board imposed too onerous a burden on the claimant with regard to the production of documentary evidence, and that if it needed additional documents from more official sources, it should not have refused her request for an extension of time to inquire about such documents.
Return to note 216 referrer
- Note 217
D'Rozario, Jerome
v.M.C.I. (F.C.T.D.,
no. IMM-2189-99), Dawson, May 24, 2000;
Daniel, Sara
v.M.C.I. (F.C.T.D.,
no. IMM-6100-99), Tremblay-Lamer, August 11, 2000.
Return to note 217 referrer
- Note 218
Salamat
v. Canada (Immigration Appeal Board) (1989), 8
Imm. L.R. (2d) 58 (F.C.A.) (destruction of a false passport before arriving in Canada was irrelevant to the
CRDD's credibility assessment);
Attakora
v. Canada (Minister of Employment and Immigration) (1989), 99
N.R. 168 (F.C.A.) (there is nothing inherently incredible in a refugee saying that he has destroyed false travel documents in order to avoid detection and arrest once they have served their purpose). In
Takhar, Sukhjeevan Singh
v.M.C.I. (F.C.T.D.,
no. IMM-1961-98), Evans, February 19, 1999, the Court stated: "it is not uncommon for those who are fleeing from persecution not to have regular travel documents and, as a result of their fears and vulnerability, simply to act in accordance with the instructions of the agent who organized their escape. whether a person has told the truth about her or his travel documents has little direct bearing on whether the person is indeed a refugee. See also
Thurairajah, Uthayasankar
v.M.E.I. (F.C.T.D.,
no. IMM-2339-93), Tremblay-Lamer, March 11, 1994;
Nishanthan, Ramachandran
v.M.C.I. (F.C.T.D.,
no. IMM-1940-98), Lemieux, November 2, 1999 (claimant turned over his Sri Lankan passport to his agent).
Return to note 218 referrer
- Note 219
Farah, Kalthoum Abdirahman
v.M.E.I. (F.C.T.D.,
no. 92-A-6032), Reed, May 26, 1993;
Elazi, Iseikeye Simon
v.M.C.I. (F.C.T.D.,
no. IMM-1038-99), Nadon, February 17, 2000 (the Court stated: "these documents are essential to establish the claimant's identity and his journey to come to Canada. it seems unreasonable to me to ignore the loss of these documents without a valid explanation.");
Museghe, Gikotshi Patric
v.M.C.I. (F.C.T.D.,
no. IMM-1551-01), Blais, October 16, 2001, 2001
FCT 1117;
Alexibich, Mogamed
v.M.C.I. (F.C.T.D.,
no. IMM-3178-00), Pelletier, January 17, 2002, 2002
FCT 53;
Kandot, Serge Patrick
v.M.C.I. (F.C.,
no. IMM-5858-02), Beaudry, October 31, 2003, 2003
FC 1275;
Matanga, Alice Baygwaka
v.M.C.I. (F.C.,
no. IMM-6271-02), Pinard, December 4, 2003, 2003
FC 1410 (referring to
s. 106 of
IRPA. the Court stated that it was essential for a claimant to be able to submit acceptable documentation to establish his or her identity and journey to come to Canada).
Return to note 219 referrer
- Note 220
Farah, Kalthoum Abdirahman
v.M.E.I. (F.C.T.D.,
no. 92-A-6032), Reed, May 26, 1993;
Mohammad, Abul Hashim
v.M.C.I. (F.C.T.D.,
no. IMM-3095-96), Gibson, July 30, 1997.
Return to note 220 referrer
- Note 221
In
Abebe, Hanna
v.M.C.I. (F.C.T.D.,
no. IMM-2174-96), Teitelbaum, March 25, 1997, the
CRDD erred in finding the claimant not to be a citizen of Ethiopia, simply because she had presented no identity documents from Ethiopia; there were other indications, including a witness, that she was from Ethiopia. See also
Chaudhry, Zia Khawar
v.M.C.I. (F.C.T.D.,
no. IMM-5938-99), MacKay, August 25, 2000.
Return to note 221 referrer
- Note 222
Shanmuganathan, Kanagasabai
v.M.C.I. (F.C.T.D.,
no. IMM-2019-94), Muldoon, May 2, 1995;
Singh, Sajan
v.M.C.I. (F.C.T.D.,
no. IMM-733-97), Pinard, January 14, 1998;
Matarage, Lal Kumara Chandragupta
v.M.C.I. (F.C.T.D.,
no. IMM-1987-97), Lutfy, April 9, 1998;
Nallanathan, Lina Radhiha
v.M.C.I. (F.C.T.D.,
no. IMM-606-00), Lemieux, April 17, 2001, 2001
FCT 326;
Nadarajalingam, Rajah
v.M.C.I. (F.C.T.D.,
no. IMM-3238-00), Gibson, May 8, 2001, 2001
FC 444.
Return to note 222 referrer
- Note 223
Syed, Naqeeb-Ur-Rehman
v.M.C.I. (F.C.T.D.,
no. IMM-1613-97), MacKay, March 13, 1998;
Herrera, Endigo Guiller Caceres
v.M.C.I. (F.C.T.D.,
no. IMM-27-37-97), Muldoon, September 28, 1998;
Bin, Qio Jian
v.M.C.I. (F.C.T.D.,
no. IMM-6307-99), Pelletier, November 14, 2001, 2001
FCT 1246.
Return to note 223 referrer
- Note 224
Quichindo, Esperanca Rocha
v.M.C.I. (F.C.T.D.,
no. IMM-3225-01), Lemieux, March 28, 2002, 2002
FCT 350.
Return to note 224 referrer
- Note 225
Tameh, Ali Farrokhi
v.M.C.I. (F.C.,
no. IMM-6266-02), Blanchard, December 15, 2003, 2003
FC 1468.
Return to note 225 referrer
- Note 226
Chowdhury, Shahala
v.M.C.I. (F.C.T.D.,
no. IMM-2897-02), Tremblay-Lamer, April 8, 2003, 2003
FCT 407;
Amarapala, Priyanga Udayantha
v.M.C.I. (F.C.,
no. IMM-5034-03), Kelen, January 7, 2004, 2004
FC 12.
Return to note 226 referrer
- Note 227
Subsection 69(10.1) of the former
Immigration Act provided:
69.(10.1) Where, with respect to any person who claims to be a Convention refugee, both members of the Refugee Division hearing the claim are satisfied
(a) that there are reasonable grounds to believe that the person, without valid reason, has destroyed or disposed of identity documents that were in the person's possession,
then, in the event of a split decision on the claim, the decision not favorable to the person shall be deemed to be the decision of the Refugee Division.
The Trial Division held that notice must be provided to the claimant of the panel's intention to consider applying this provision:
Sebastiampillai, Mary Jenita
v.M.C.I. (F.C.T.D.,
no. IMM-866-94), Reed, December 5, 1994.
Return to note 227 referrer
- Note 228
Sebastiampillai, Mary Jenita
v.M.C.I. (F.C.T.D.,
no. IMM-866-94), Reed, December 5, 1994 (in
Obiter);
Gebremariam, Himanot Tefera
v.M.C.I. (F.C.T.D.,
no. IMM-62-94), Muldoon, March 8, 1995.
Return to note 228 referrer
- Note 229
In
Gebremariam, Himanot Tefera
v.M.C.I. (F.C.T.D.,
no. IMM-62-94), Muldoon, March 8, 1995, the 14-year-old Somali claimant handed over her passport (in someone else's name), when requested, to the agent's contact person in the United States. The Court held that "valid reason" demands a much lower standard for someone like the claimant than for a more worldly-wise or self-assured adult. In
Jradj, Khalil Alib
v.M.E.I. (F.C.T.D.,
no. IMM-1680-94), Gibson, March 16, 1995, the Court upheld the
CRDD's application of
s. 69.1(10.1) with respect to a Lebanese claimant who left his passport with a friend in Germany, where he had stayed for four months. The claimant was found not credible because of the unsatisfactory explanation for his inability to get his valid passport, other implausibilities and his failure to make a refugee claim in Germany.
Return to note 229 referrer
- Note 230
Kimbudi
v. Canada (Minister of Employment and Immigration) (1982), 40
N.R. 566 (F.C.A.).
Return to note 230 referrer
- Note 231
In
Cardenas, Harry Edward Prahl
v.M.C.I. (F.C.T.D.,
no. IMM-1960-98), Campbell, February 20, 1998, the Court held that the fact that corroborating letters from the claimant's family postdated the claim was not sufficient reason to dismiss them as self-serving. In
Kaburia, Colin Wagombe
v.M.C.I. (F.C.T.D.,
no. IMM-230-01), Dawson, May 7, 2002, 2002
FCT 516, the Court stated: "solicitation does not
per se invalidate the contents of the letter, nor does the fact that the letter was written by a relative." In
Razzaq, Abdul
v.M.C.I. (F.C.,
no. IMM-4139-02), Snider, July 10, 2003, 2003
FC 864, the Court held that the
RPD did not err in not giving weight to "self-serving" letters as the Board relied on documentary evidence regarding forgeries in Pakistan and its own adverse credibility findings for its conclusion that these letters were not sufficient to offset its credibility concerns.
Return to note 231 referrer
- Note 232
Konadu, Yaa
v.M.C.I. (F.C.T.D.,
no. A-985-92), Heald, November 20, 1996.
Return to note 232 referrer
- Note 233
In
Vallejo, Juan Ernesto
v.M.E.I. (F.C.A.,
no. A-799-90), Mahoney, Stone, Linden, March 26, 1993, the Court rejected the
CRDD's implicit finding that the claimant was not a credible witness for the reason, among others, that, in testifying about the content of letters received from home, he stated that they did not mention that the authorities were still looking for him. The Court commented: "That is exactly the sort of evidence that the Board routinely gives little or no weight because it finds it self-serving."
Return to note 233 referrer
- Note 234
Zhou, Ting Yu
v.M.E.I. (F.C.A.,
no. A-492-91), Heald, Desjardins, Linden, July 18, 1994;
Victorov, Alexey
v.M.C.I. (F.C.T.D.,
no. IMM-5170-94), Nol, June 14, 1995;
Andrade, Pedro Aleksei Marchant
v.M.C.I. (F.C.T.D., IMM-2361-96), Nol, May 5, 1997.
Return to note 234 referrer
- Note 235
Dolinovsky, Yaroslav
v.M.C.I. (F.C.T.D.,
no. IMM-1559-98), Pinard, November 5, 1999. But note the caution in
Kandasamy, Thirunavukarasu
v.M.C.I. (F.C.T.D.,
no. IMM-4730-96), Reed, November 5, 1997: "The danger in preferring documentary evidence over [a claimant's] direct evidence, is that documentary evidence is usually general in nature. [A claimant's] recitation of what occurred to him, or her, is particular and personal. Thus, without some clear explanation as to why the general is preferred over the particular one may doubt a conclusion that is based on a preference for the former over the latter." See also
Parada, Felix Balmore
v.M.C.I. (F.C.T.D.,
no. A-38-92), Cullen, March 6, 1995, where the Court held that if the claimant "testified that he feared for his life and there is evidence to reasonably support those fears, it is improper for the Board to reject that testimony out of hand without making a negative credibility finding." In
Khan, Himmotur Rahman
v.M.C.I. (F.C.T.D.,
no. IMM-3428-97), Denault, August 21, 1998, the Court held that the
CRDD erred by finding that the claimant was not credible about her identity in the face of numerous unchallenged documents such as birth and school certificates, and newspaper articles containing her pen name as well her photograph. In
Singh, Karamjit
v.M.C.I. (F.C.T.D.,
no. IMM-2613-00), Pinard, April 20, 2001, 2001
FCT 344, the Court had some difficulty accepting that the
CRDD should be allowed to discount the claimant's personal account of persecution (in which no contradiction or inconsistency was noted) on the basis of more general documentary evidence.
Return to note 235 referrer
- Note 236
Okyere-Akosah, Kwame
v.M.E.I. (F.C.A.,
no. A-92-91), Marceau, Desjardins, Dcary, May 6, 1992. See, for example,
Kandasamy, Thirunavukarasu
v.M.C.I. (F.C.T.D.,
no. IMM-4730-96), Reed, November 5, 1997, where the
CRDD preferred the documentary evidence over the claimant's oral evidence concerning the treatment received at the hands of the police. See also
Levtchenko, Segueiv.M.C.I. (F.C.T.D.,
no. IMM-3289-97), Pinard, August 18, 1998.
Return to note 236 referrer
- Note 237
Zvonov, Sergei
v.M.E.I. (F.C.T.D.,
no. IMM-3030-93), Rouleau, July 18, 1994, Reported:
Zvonov
v. Canada (Minister of Employment and Immigration) (1994), 28
Imm. L.R. (2d) 23 (F.C.T.D.);
Villalba, Juan Francisco Massaffero
v.M.E.I. (F.C.T.D.,
no. IMM-7172-93), Rothstein, October 19, 1994;
Chkliar, Ekaterina
v.M.C.I. (F.C.T.D.,
no. IMM-2991-94), Wetston, January 21, 1995;
Mihelcic, Nicola
v.M.E.I. (F.C.T.D.,
no. IMM-1010-94), Gibson, March 16, 1995;
Varga, Sava
v.M.E.I. (F.C.T.D.,
no. IMM-790-94), Heald, June 8, 1995. In
Munkoh, Frank
v.M.E.I. (F.C.T.D.,
no. IMM-4056-93), Gibson, June 3, 1994, the Court questioned the foregoing rationale as a sufficient basis for preferring the documentary evidence to the evidence of the claimant.
Return to note 237 referrer
- Note 238
In
Veres, Gavril
v.M.C.I. (F.C.T.D.,
no. IMM-2227-00), Pelletier, November 24, 2000, the
CRDD erred in saying that it had "no reason" to doubt the report of an unidentified party official in Romania referred to in a Response to Information Request from the
IRB's Documentation Centre, when the claimant had adduced an article from a Romanian newspaper that contradicted that information.
Return to note 238 referrer
- Note 239
Ramalingam, Govindasamy Sellathurai
v.M.C.I. (F.C.T.D.,
no. IMM-1298-97), Dub, January 8, 1998.
Return to note 239 referrer
- Note 240
In
Owusu, Kweku
v.M.E.I. (F.C.A.,
no. A-1146-87), Heald, Hugessen, Desjardins, January 31, 1989, the Court held that the
CRDD did not err in failing to require expert evidence to support its finding in respect of handwriting. In
Culinescu, Rodica-Luciana
v.M.C.I. (F.C.T.D.,
no. IMM-3395-96), Joyal, September 17, 1997, the Court held that there was no duty on the Board to have impugned documents (an order to stand trial) authenticated. In
Yogeswaran, Kulamanidevi
v.M.C.I. (F.C.T.D.,
no. IMM-1291-99), MacKay, February 9, 2001, 2001
FCT 48, the Court agreed that sending out the documents for authentication would not have explained the discrepancies in dates and names. In
Allouche, Sofiane
v.M.C.I. (F.C.T.D.,
no. IMM-973-99), Pinard, March 17, 2000, the Court held that the
CRDD's refusal to have certain documents assessed by an expert was not unreasonable, especially since the panel had no legal obligation to do so. Note, however,
Pachkov, Stanislav
v.M.C.I. (F.C.T.D.,
no. IMM-5449-99), Denault, June 28, 2000, where the panel undertook to have the
RCO send an information request to the Latvian embassy concerning the status of stateless persons holding a passport of the former
USSR, but did not follow through (the request was sent to the
IRB Documentation Centre instead) and did not inform the claimant. According to the doctrine of legitimate expectation, an administrative authority must abide by the procedural undertakings it has freely made, provided that this authority is not acting contrary to its legal obligations.
Return to note 240 referrer
- Note 241
See, for example:
Grozdev, Kostadin Nikolov
v.M.C.I. (F.C.T.D.,
no. A-1332-91), Richard, July 16, 1996 (letter and summons);
Parvez, Mohammed
v.M.C.I. (F.C.T.D.,
no. A-1341-92), Gibson, October 18, 1996 (arrest warrant);
Adar, Mohamoud Omar
v.M.C.I. (F.C.T.D.,
no. IMM-3623-96), Cullen, May 26, 1997 (passports and other identity documents);
Culinescu, Rodica-Luciana
v.M.C.I. (F.C.T.D.,
no. IMM-3395-96), Joyal, September 17, 1997 (order to stand trial);
Hossain, Md Iqbal
v.M.C.I. (F.C.T.D.,
no. IMM-1600-99), Tremblay-Lamer, February 4, 2000 (letter);
Islam, Arif
v.M.C.I. (F.C.T.D.,
no. IMM-5745-99), Tremblay-Lamer, February 2, 2001, 2001
FCT 10 (CRDD compared the content and form of two medical certificates);
Riveros, Maximo Andres Febres
v.M.C.I. (F.C.T.D.,
no. IMM-6517-00), Blais, September 11, 2001, 2001
FCT 1009 (the photograph in the military service book seemed to be recent, and not one dating from 1972);
Uddin, Nizam
v.M.C.I. (F.C.T.D.,
no. IMM-895-01), Gibson, April 26, 2002, 2002
FCT 451 (CRDD noted discrepancies between the claimant's documents and the general evidence regarding the form and content of such documentation). In
Ahmed, Shakeel
v.M.C.I. (F.C.T.D.,
no. IMM-1006-97), Nadon, April 9, 1998, the Court upheld the
CRDD's finding that the arrest warrant was invalid because it contained handwritten words in English and because the claimant failed to produce the First Information Report listing the actual charges, despite being given time to do so; also the lawyer's letter from Pakistan had the word "legal" misspelled in the letterhead. In
Yakub, Omar Imhammed
v.M.C.I. (F.C.T.D.,
no. IMM-5361-00), McKeown, October 2, 2001, 2001
FCT 1082, the Court held that the
CRDD did not err in refusing the documentation from Executive Committee members of the Libyan League for Human Rights after the Board's Special Information Research Unit (SIRU) wrote to the league to verify the authenticity of the statement and received no response. In
Umba, Laetitia Masial
v.M.C.I. (F.C.,
no. IMM-6318-02), Martineau, January 9, 2004, 2004
FC 25, the Court stated that it did not believe that the Board must be rigorous to the point that the acceptance of evidence produced by a claimant must depend on North American logic and reasoning. In
Dzey, Oksana Olesy
v.M.C.I. (F.C.,
no. IMM-1-03), Mactavish, January 30, 2004, 2004
FC 167, the Court upheld the
RPD's finding that it was implausible for the claimant to have obtained a police report detailing events, after the fact, given her testimony that the police had refused to record her complaint when she attempted to report the assault and their alleged protection of the assailant in the past. In
Mohanarajan, Sriahilandtharanathan
v.M.C.I. (F.C.T.D.,
no. IMM-5482-00), Simpson, November 6, 2000, the Court held that given all the problems which were identified in connection with the documents, the
CRDD was entitled, given its expertise, to reach conclusions about the reliability of an identity document even though the
RCMP could not determine whether it was or was not authentic. See also
Aboubacar, Habib Rashad
v.M.C.I. (F.C.T.D.,
no. IMM-5925), Dawson, February 13, 2002, 2002
FCT 162, where the claimant's explanation as to how he obtained his birth certificate to be highly dubious. Moreover, while the
RCMP forensic report on the Niger identity card was inconclusive regarding authenticity and alteration, it stated that it had the characteristics of a counterfeit document.
Return to note 241 referrer
- Note 242
In
Mandar, Kashmeer Singh
v.M.C.I. (F.C.T.D.,
no. IMM-4605-96), Reed, October 3, 1997, the Court cautioned the
CRDD to seek and take into account explanations offered by the claimant regarding impugned documents.
Return to note 242 referrer
- Note 243
Gyimah, Joycelyn
v.M.C.I. (F.C.T.D.,
no. IMM-1011-93), Gibson, November 10, 1995;
Kashif, Zakria Mohammed
v.M.C.I. (F.C.T.D.,
no. IMM-760-02), Pinard, February 18, 2003, 2003
FCT 179. In
Hadjalaran, Zyulhan Ismail
v.M.C.I. (F.C.T.D.,
no. IMM-6134-99), Campbell, July 18, 2000, the Court held that the
CRDD should first rule on the authenticity of a summons before deciding on the weight to be given it. In
Ourazmetov, Damir
v.M.C.I. (F.C.T.D.,
no. IMM-3247-99), Denault, May 16, 2000, the
CRDD found that the claimant failed to prove his Jewish origin despite his birth certificate establishing that his father and mother were Jewish. The Court held it was unreasonable not to assign any probative value to this document on the basis that his father had declared in his own internal passport that he was also of Tartar nationality. There being no doubt expressed as to the validity of the birth certificate, this document was proof of its contents and it established, at the very least, that his parents were Jewish. In
Taire, Queen
v.M.C.I. (F.C.T.D.,
no. IMM-3883-00), Hansen, October 11, 2001, 2001
FCT 1109, the Court held that it was erroneous for the panel to conclude that it was implausible for the claimant's father to sign her application for a birth certificate without questioning the authenticity of the document; however, it was contradictory that the claimant's passport had been issued before her birth certificate.
Return to note 243 referrer
- Note 244
In
Warsame, Mohamed Dirie
v.M.E.I. (F.C.T.D.,
no. A-758-92), Nadon, November 15, 1993, the Court stated: "The certificate is either genuine or false, and therefore it is not possible to attach 'little probative value'. It is all or nothing. At the very least, the Board should have stated why it believed that the document in question was not genuine as, on its face, it does appear to be genuine." See also
Olojo, Omolara Abimbola
v.M.C.I. (F.C.T.D.,
no. IMM-3918-96), Lutfy, November 6, 1997. In
Kabashi, Sokol
v.M.C.I. (F.C.T.D.,
no. IMM-3489-97), Gibson, April 20, 1998, the Court held that the
CRDD could not conclude that a military call-up notice and a school letter were not genuine in the absence of expert examination. In
Ramalingam, Govindasamy Sellathurai
v.M.C.I. (F.C.T.D.,
no. IMM-1298-97), Dub, January 8, 1998, the Court held that an identity document issued by a foreign government is presumed valid unless evidence is produced to prove otherwise. In
Deci, Edmond
v.M.C.I. (F.C.T.D.,
no. IMM-664-00), Gibson, February 5, 2001, 2001
FCT 21, the Court held that if the claimant's birth certificate, family certificate and certificate from the European Union were originals, it is difficult to understand how the
CRDD could justify not giving "much weight" to these documents, despite the fact that they were issued after the claimant left Albania, without impugning the reputation of state authorities in Albania who issued the duplicate originals. In
Nika, Mimoza
v.M.C.I. (F.C.T.D.,
no. IMM-5209-00), Hansen, June 14, 2001, 2001
FCT 656, the Court held that the
CRDD erred in its finding with respect to a family certificate from Albania in the absence of any evidence with respect to this type of document.
Return to note 244 referrer
- Note 245
Mpoli, Noellie Ngoya
v.M.C.I. (F.C.T.D.,
no. IMM-2098-02), Nol, April 3, 2003, 2003
FCT 398. The Court also held that in failing to inform the claimants of its concerns regarding the birth certificates, it did not give them an opportunity to respond to them.
Return to note 245 referrer
- Note 246
Ismaylov, Anar Ibrahim
v.M.C.I. (F.C.T.D.,
no. IMM-1232-01), Gibson, January 11, 2002, 2002
FCT 30;
Papaskiri, George
v.M.C.I. (F.C.,
no. IMM-6179-02), O'Keefe, January 16, 2004, 2004
FC 69 (RPD made no reference to any particular problem with the documents tendered by the claimant);
Cheema, Munawar Ahmad
v.M.C.I. (F.C.T.D.,
no. IMM-615-03), von Finckenstein, February 11, 2004, 2004
FC 224 (RPD did not otherwise support its findings of forgery).
Return to note 246 referrer
- Note 247
Uddin, Nizam
v.M.C.I. (F.C.T.D.,
no. IMM-895-01), Gibson, April 26, 2002, 2002
FCT 451. In
Nasim, Babar
v.M.C.I. (F.C.T.D.,
no. IMM-6455-00), Tremblay-Lamer, November 2, 2001, 2001
FCT 1199, the Court upheld the
CRDD's decision where the claimant's lack of credibility combined with the
CRDD's knowledge that it is easy to produce forged Pakistani documents led it to give no probative value to the claimant's documents. See also, to the same effect,
Petrova, Olga
v.M.C.I. (F.C.T.D.,
no. IMM-4743-00), Dawson, March 14, 2002, 2002
FCT 286. In
Gasparyan, Sos
v.M.C.I. (F.C.,
no. IMM-3496-02), Kelen, July 10, 2003, 2003
FC 863, the
CRDD found difficulties with the authenticity of identity documents issued in the former republics of the Soviet Union around 2001, and drew a negative inference from the claimant's failure to produce his original 1972 birth certificate. The Court held that a panel is entitled to rely upon its knowledge regarding the availability of forged documents in a particular region to question their probative value.
Return to note 247 referrer
- Note 248
Ganiyu-Giwa, Abdulfatai
v.M.C.I. (F.C.T.D.,
no. IMM-3526-94), Wetston, March 28, 1995;
Gnanapragasam, Daniel
v.M.C.I. (F.C.T.D.,
no. IMM-573-99), Heneghan, May 31, 2000;
Polgari, Imre
v.M.C.I. (F.C.T.D.,
no. IMM-502-00), Hansen, June 8, 2001, 2001
FCT 626.
Return to note 248 referrer
- Note 249
Songue, Andr Marie
v.M.C.I. (F.C.T.D.,
no. IMM-3391-95), Rouleau, July 26, 1996. In
Hamid, Iqbal
v.M.E.I. (F.C.T.D.,
no. IMM-2829-94), Nadon, September 20, 1995, the Court agreed that, while it is correct that, even if the Board finds the claimant to be bereft of credibility, it must analyze the documentation to determine whether it can give support to the claim, nonetheless, the documents will not be assigned much probative value unless they are proven to be genuine: "where the Board is of the view that the [claimant] is not credible, it will not be sufficient for the [claimant] to file a document and affirm it is genuine and that the information contained therein is true. Some form of corroboration or independent proof will be required to 'offset' the Board's negative conclusion on credibility." See also
Kanyai, Mugwagwa Brian
v.M.C.I. (F.C.T.D.,
no. IMM-315-02), Martineau, August 9, 2002, 2002
FCT 850;
Garcha, Jaswant Singh
v.M.C.I. (F.C.T.D.,
no. IMM-5526-01), Blais, September 27, 2002, 2002
FCT 1012 (CRDD gave no probative value to an affidavit and medical certificate);
Taire, Queen
v.M.C.I. (F.C.,
no. IMM-2948-02), Blanchard, July 15, 2003, 2003
FC 877. In
Shergill, Gurpeet Singh
v.M.C.I. (F.C.T.D.,
no. IMM-5942-00), Nadon, October 19, 2001, 2001
FCT 1138, the Court held that the
CRDD had not erred in faulting the claimant, who had testified in an evasive manner, for having introduced an incomplete newspaper article and in not attaching probative value to the affidavit of the village sarpanch. In
Ahmad, Jameel
v.M.C.I. (F.C.T.D.,
no. IMM-5537-01), Blais, August 15, 2002, 2002
FCT 873, the Court held that it was an error to reject all the documentary evidence presented by the claimant given that the finding of a lack of credibility was based on one event.
Return to note 249 referrer
- Note 250
Uddin, Nizam
v.M.C.I. (F.C.T.D.,
no. IMM-895-01), Gibson, April 26, 2002, 2002
FCT 451. In
Bhuiyan, Abdul Bashar
v.M.C.I. (F.C.T.D.,
no. IMM-53-02), Nol, March 10, 2003, 2003
FCT 290, the Court held that once the
CRDD concluded that identity had not been established (after discounting the claimant's birth certificate), it was not necessary for it to analyze the other documentary evidence (medical report and two letters). However, in
Geng, Xin
v.M.C.I. (F.C.T.D.,
no. IMM-300-00), Blanchard, April 2, 2001, 2001
FCT 257, the Court held the
CRDD erred in dismissing all of the documentary evidence simply because it provided good reasons to believe that some of the documents had been fabricated. In
Al-Shammari, Mossed
v.M.C.I. (F.C.T.D.,
no. IMM-33-01), Blanchard, April 2, 2002, 2002
FCT 364, the Court held that the panel erred in attaching no probative value to the document from Kuwait because the documents from Iraq were forgeries.
Return to note 250 referrer
- Note 251
Husein, Anab Ali
v.M.C.I. (F.C.T.D.,
no. IMM-2044-97), Joyal, May 27, 1998;
Yogeswaran, Kulamanidevi
v.M.C.I. (F.C.T.D.,
no. IMM-1291-99), MacKay, February 9, 2001, 2001
FCT 48;
Osayande, Maxwell
v.M.C.I. (F.C.T.D.,
no. IMM-3780-01), Kelen, April 3, 2002, 2002
FCT 368. In
Umba, Laetitia Masial
v.M.C.I. (F.C.,
no. IMM-6318-02), Martineau, January 9, 2004, 2004
FC 25, the Court stated that, if on their face it is apparent that documents contain various irregularities, the
RPD can, in the absence of a satisfactory explanation, make a negative finding as to the credibility of a claimant. See also
Neethinesan, Parameswary
v.M.C.I. (F.C.T.D.,
no. IMM-724-03), Kelen, January 29, 2004, 2004
FC 138;
Ibnmogdad, Moustapha Ould Ould
v.M.C.I. (F.C.,
no. IMM-332-03), Tremblay-Lamer, February 25, 2004, 2004
FC 321.
Return to note 251 referrer
- Note 252
Gochez, Julio Cesar
v.M.C.I. (F.C.T.D.,
no. IMM-3545-99), Dub, September 7, 2000 (claimant's job description differed from that in his employer's letter; there was an error in the date of an assault mentioned in a medical certificate). In
Ngoyi, Badibanga
v.M.C.I. (F.C.T.D.,
no. IMM-1827-99), Tremblay-Lamer, February 15, 2000, the Court held that the
CRDD gave exaggerated weight to an error of syntax found in a newspaper article submitted by the claimant.
Return to note 252 referrer
- Note 253
Khan, Kanak
v.M.C.I. (F.C.T.D.,
no. IMM-2483-01), Beaudry, April 15, 2002, 2002
FCT 431.
Return to note 253 referrer
- Note 254
Danailov (Danailoff), Vasco (Vassil) Vladimirov
v.M.E.I. (F.C.T.D.,
no. T-273-93), Reed, October 6, 1993;
Al-Kahtani, Naser Shafi Mohammad
v.M.C.I. (F.C.T.D.,
no. IMM-2879-94), MacKay, March 13, 1996.
Return to note 254 referrer
- Note 255
Zapata, Carlos Alberto Ruiz
v.M.E.I. (F.C.T.D.,
no. IMM-4876-93), Gibson, June 29, 1994.
Return to note 255 referrer
- Note 256
See also
Attigah, Risch Mirabel
v.M.E.I. (F.C.T.D.,
no. 92-T-1795), Nol, June 3, 1993, Reported:
Attigah
v. Canada (Minister of Employment and Immigration) (1993), 19
Imm. L.R. (2d) 288 (F.C.T.D.);
Appiah, Charles
v.M.C.I. (F.C.T.D.,
no. IMM-3009-96), Teitelbaum, August 19, 1997. But note, however,
Sulaiman, Hussaine Hassan
v.M.C.I. (F.C.T.D.,
no. IMM-525-94), MacKay, March 22, 1996, where the Court upheld the
CRDD's conclusion that the claimant's condition, as described in the medical report, did not account for all the inconsistencies and vagueness in her testimony.
Return to note 256 referrer
- Note 257
Gill, Ram Singh
v.M.E.I. (F.C.T.D.,
no. 92-T-1624), Gibson, March 31, 1994.
Return to note 257 referrer
- Note 258
Thurairajah, Uthayasankar
v.M.E.I. (F.C.T.D.,
no. IMM-2339-93), Tremblay-Lamer, March 11, 1994.
Return to note 258 referrer
- Note 259
In
Sanghera, Bhajan Singh
v.M.E.I. (F.C.T.D.,
no. T-194-93), Gibson, January 26, 1994, Reported:
Sanghera
v. Canada (Minister of Employment and Immigration) (1994), 23
Imm. L.R. (2d) 194 (F.C.T.D.), the
CRDD ignored a psychiatric report stating that the claimant suffered from post-traumatic stress disorder causing him to become forgetful, lost in his train of thought and afraid, especially when the past was discussed. In
Ngombo, Sunda
v.M.C.I. (F.C.T.D.,
no. IMM-1874-96), Gibson, January 31, 1997, Reported:
Ngombo
v. Canada (Minister of Citizenship and Immigration) (1997), 40
Imm. L.R. (2d) 321 (F.C.T.D.), the Court held that the
CRDD erred in ignoring medical evidence that might explain problems with the claimant's testimony. See also
Chen, Ze Yung
v.M.C.I. (F.C.T.D.,
no. IMM-4381-94), Cullen, July 19, 1995;
Sanchez, Rosa
v.M.C.I. (F.C.T.D.,
no. IMM-270-97), Heald, January 18, 1998;
Hassan, Ali Abdi
v.M.C.I. (F.C.T.D.,
no. IMM-5440-98), Evans, September 7, 1999. In
Vijayarajah, Sasitharan
v.M.C.I. (F.C.T.D.,
no. IMM-4538-98), Tremblay-Lamer, May 12, 1999, Reported:
Vijayarajah
v. Canada (Minister of Citizenship and Immigration) (1999), 50
Imm. L.R. (2d) 113 (F.C.T.D.), the Court faulted the
CRDD's reasoning in finding the claimant not credible due to inconsistencies in his testimony, and then relying on this negative credibility finding to dismiss medical and documentary evidence which explains that torture victims may contradict themselves as a result of the confusion caused by their experiences. In
Yilmaz, Mehmet
v.M.C.I. (F.C.,
no. IMM-5313-02), Russell, December 18, 2003, 2003
FC 1498, the panel rejected the medical report because it did not believe that the events actually took place, thus closing its mind to the "cognitive difficulties" referred to in the assessment and whether they could account for obvious problems that the claimant had in testifying.
Return to note 259 referrer
- Note 260
In
Muhammad, Azhar
v.M.C.I. (F.C.T.D.,
no. IMM-3276-99), Reed, June 30, 2000, the
CRDD accepted that the claimant may have had memory problems, as confirmed by a psychologist's report, but it did not accept that he would not recall central and obviously easy-to-remember matters. In
Syed, Najmi
v.M.C.I. (F.C.T.D.,
no. IMM-2785-99), Blais, May 3, 2000, the
CRDD did not find the claimant to be credible based on inconsistencies and implausibilities in his story; hence it gave little weight to a report prepared by a general practitioner attesting to the claimant's veracity. In
Acheampong, Sadic
v.M.C.I. (F.C.T.D.,
no. IMM-4763-99), Teitelbaum, August 25, 2000, the Court held that the
CRDD was entitled to assign little or no weight to opinions expressed in a psychological report regarding the claimant's credibility and fear of persecution: "the
CRDD cannot its decision-making function to, or allow it to be usurped by, the author of this assessment."
Return to note 260 referrer
- Note 261
In
Samatar, Asha Ali
v.M.C.I. (F.C.T.D.,
no. IMM-23-99), Reed, June 8, 2000, the
CRDD properly considered the failure to produce, as requested by the panel, a medical/psychological report with respect to the claimant's allegation that she had a poor memory.
Return to note 261 referrer
- Note 262
In
Gosal, Pardeep Singh
v.M.C.I. (F.C.T.D.,
no. IMM-2316-97), Reed, March 11, 1998, the Court held that the need for the panel to refer, in its reasons, to medical reports is not "will depend on the quality of that evidence and the extent to which it is central to the claim. When such reports are nothing more than a recitation of the [claimant's] story, which the Board does not believe, and a conclusion based on symptoms, which the [claimant] has told the psychiatrist are being experienced, then, Boards cannot be faulted for treating such reports with some degree of scepticism. When they are based on independent and objective testing by a psychiatrist, then, they deserve more consideration." In
Kouassi, Agbodoh-Falschau
v.M.C.I. (F.C.T.D.,
no. IMM-3871-97), Tremblay-Lamer, August 24, 1998, the Board ignored medical evidence that corroborate the claimant's allgation of torture. In
Voytik, Lyudmyla Vasylivna
v.M.C.I. (F.C.,
no. IMM-5023-02), O'Keefe, January 16, 2004, 2004
FC 66, the Court faulted the
RPD for dismissing the medical reports outright without determining whether they enhanced the credibility of the claimant's testimony regarding the alleged beatings or provided independent substantiation of the mistreatment she alleged. In
Singh, Ranjodh
v.M.C.I. (F.C.T.D.,
no. IMM-2382-94), Simpson, December 14, 1995, the Court held that although the
CRDD committed a reviewable error in failing to refer to a psychiatric report, the error was not material. Even had the
CRDD specifically referred to the report, it would have dismissed the report on the basis that it did not believe the underlying facts upon which it was based and would not have accepted the doctor's perception over its own on the issue of demeanour. See also, to the same effect,
Hernandez, Maria Trinidad Cortes
v.M.C.I. (F.C.T.D.,
no. IMM-2248-00), O'Keefe, June 13, 2001, 2001
FCT 643.
Return to note 262 referrer
- Note 263
In
Javaid, Taher
v.M.C.I. (F.C.T.D.,
no. IMM-265-98), Rothstein, November 25, 1998, the Court held that, since the psychological report was specific and important to the claimant's case and,
prima facie, credible and persuasive, it was not sufficient for the panel merely to state that it was considered. The panel had some obligation, even very briefly, to explain why it was not persuaded by that evidence. In
Fidan, Suleyman
v.M.C.I. (F.C.,
no. IMM-5968-02), von Finckenstein, October 14, 2003, 2003
FC 1190, the Court held that the Board was obliged to do more than merely state that it had "considered" the psychological report. It was obliged to provide some meaningful discussion as to how it had taken account of the claimant's serious medical condition (chronic post-traumatic stress disorder) before it made its negative credibility finding.
Return to note 263 referrer
- Note 264
In
Parameshvaran, Appudurai
v.M.C.I. (F.C.T.D.,
no. IMM-4131-94), Richard, June 26, 1995, the Court held that a tribunal does not have an obligation to point out those aspects of the claimant's testimony that it finds unconvincing. See also
Sarker, Jalal Uddin
v.M.C.I. (F.C.T.D.,
no. IMM-2597-97), MacKay, July 3, 1998, Reported:
Sarker
v. Canada (Minister of Citizenship and Immigration) (1998), 45
Imm. L.R. (2d) 209 (F.C.T.D.).
Return to note 264 referrer
- Note 265
Browne
v. Dunn (1993), 6
R. 67 (H.L.) holds that, in a civil context, where a tribunal is asked to disbelieve a witness, the witness should be cross-examined. In
Chehar, Kathirgamalingam
v.M.C.I. (F.C.T.D.,
no. IMM-4540-96), Wetston, October 20, 1997, the Court interpreted
Gracielome, infra, to stand for the proposition that the Board must afford the claimant an opportunity to address key issues upon which the
CRDD intends to rely.
Return to note 265 referrer
- Note 266
Gracielome
v. Canada (Minister of Employment and Immigration) (1989), 9
Imm. L.R. (2d) 237 (F.C.A.). See also
Virk
v. Canada (Minister of Employment and Immigration) (1992), 140
N.R. 290 (F.C.A.);
Grewal, Kala Singh
v.M.E.I. (F.C.A.,
no. A-532-91), Mahoney, Robertson, Gray, January 27, 1993;
Nti, Kofi
v.M.E.I. (F.C.T.D.,
no. 92-T-1592), McKeown, May 19, 1993;
Vorobieva, Svetlana
v.S.G.C. (F.C.T.D.,
no. IMM-4863-93), Rouleau, August 15, 1994;
Nadesu, Balaranjani
v.M.C.I. (F.C.T.D.,
no. IMM-4606-96), Wetston, October 21, 1997. In
Malala, Kalwalwa
v.M.C.I. (F.C.T.D.,
no. IMM-2461-00), Dub, February 19, 2001, 2001
FCT 94, the Court certified a question regarding the requirement to put alleged contradictions to the claimant.
Return to note 266 referrer
- Note 267
Rajaratnam
v. Canada (Minister of Employment and Immigration) (1991), 135
N.R. 300 (F.C.A). In
Li, Ta Wei
v.M.E.I. (F.C.T.D.,
no. A-1181-92), Jerome, February 28, 1996, the Court held that the
CRDD erred in not confronting the claimant with its doubts about the claimant's credibility arising from the omission in the
PIF of any reference to an arrest warrant which was the subject of his testimony. In
Bayrami, Javad Jamali
v.M.C.I. (F.C.T.D.,
no. IMM-3904-98), McKeown, July 22, 1999, the Court faulted the
CRDD for failing to offer the claimants an opportunity to explain discrepancies between their
PIF and the port of entry notes.
Return to note 267 referrer
- Note 268
In
Parameshvaran, Appudurai
v.M.C.I. (F.C.T.D.,
no. IMM-4131-94), Richard, June 26, 1995, the Court held that the principles of procedural fairness and natural justice were not offended when the claimant was not confronted with the inconsistencies in his testimony as he was made aware of the credibility issue and had ample opportunity to explain any inconsistencies in his testimony. In
Mendoza, Elizabeth Aurora Huayek
v.M.C.I. (F.C.T.D.,
no. IMM-2997-94), Muldoon, January 24, 1996, the Court found that the discrepancies within the claimant's own testimony and between her evidence and the documentary evidence were obvious, and the
CRDD had no duty to examine the claimant about them. In
Liu, Zhi Gan
v.M.C.I. (F.C.T.D.,
no. IMM-3143-96), Gibson, August 29, 1997, Reported:
Liu
v. Canada (Minister of Citizenship and Immigration) (1997), 40
Imm. L.R. (2d) 168 (F.C.T.D.), the Court held that, while it would have been preferable for the
CRDD to have drawn to the claimant's attention
all of the inconsistencies in his testimony, its failure to do so was not, in the circumstances of that case, a breach of the rules of natural justice or an error of law, since the claimant and his counsel had been put on notice that the
CRDD was concerned about inconsistencies and the panel had referred specifically to some of them. See also
Kahandani, Masoud
v.M.C.I. (F.C.T.D.,
no. IMM-2742-98), Pinard, November 17, 1999.
In
Ayodele, Abiodun
v.M.C.I. (F.C.T.D.,
no. IMM-4812-96), Gibson, December 30, 1997, the Court read the decision in
Gracielome narrowly to refer to contradictions that were uncovered by a "painstaking analysis of the transcripts of the evidence"; there, the contradictions in the testimony would have been as apparent to counsel as to the
CRDD members. In
Matarage, Lal Kumara Chandragupta
v.M.C.I. (F.C.T.D.,
no. IMM-1987-97), Lutfy, April 9, 1998, the Court revisited the
Gracielome decision at some length and stated by way of conclusion:
The Court of Appeal decisions relied upon by the [claimant] must be read in the context of the then existing legislative scheme, [which entailed a review of a transcript of the refugee claimant's examination under oath before a senior immigration officer]. While the specific problem being addressed by these decisions may no longer apply, there may still be circumstances, however, where a discrepancy should be brought to the attention of a refugee claimant. In this case, the tribunal's failure to confront the claimant with its concern with a direct response to a specific question is not a reviewable error. The parties were on notice that credibility was in issue.
Return to note 268 referrer
- Note 269
Tanase, Florenta
v.M.C.I. (F.C.T.D.,
no. IMM-2756-99), Muldoon, January 11, 2000.
Return to note 269 referrer
- Note 270
Ngongo, Ndjadi Denis
v.M.C.I. (F.C.T.D.,
no. IMM-6717-98), Tremblay-Lamer, October 25, 1999. In this case the contradiction was significant in nature, readily apparent and provided in response to a direct question of the tribunal. Moreover, the claimant was represented by counsel, who could have questioned his client about that matter. Thus the
CRDD did not err by failing to confront the claimant with the alleged contradiction. This case was followed in
Hossain, Iqbal
v.M.C.I. (F.C.T.D.,
no. IMM-474-99), Tremblay-Lamer, November 19, 1999. See also
Tekin, Arif
v.M.C.I. (F.C.T.D.,
no. IMM-1656-02), Snider, March 27, 2003, 2003
FCT 357 (PIF);
Yu, Zi Chang
v.M.C.I. (F.C.T.D.,
no. IMM-3239-02), Snider, June 9, 2003, 2003
FCT 720 (port of entry notes,
PIF). In
Estrada, William Dario Tamayo
v.M.C.I. (F.C.T.D.,
no. IMM-5118-00), Hansen, January 18, 2002, 2002
FCT 60, the Court found that the inconsistency noted there was not one that was so readily apparent that counsel should have been expected to address it, and therefore the panel should have put it to claimant if it intended to rely on it. In
Abdul, Gamel
v.M.C.I. (F.C.T.D.,
no. IMM-1796-02), Snider, February 28, 2003, 2003
FCT 260, the Court held that, while the Board is not required to put every inconsistency or implausibility to the claimant, when such findings are at the heart of the claim, the claimant must be given an opportunity to explain. See also
Deng, Xing Yi
v.M.C.I. (F.C.T.D.,
no. IMM-5250-02), Rouleau, May 30, 2003, 2003
FCT 682 (information in visa application).
Return to note 270 referrer
- Note 271
Veres, Gavril
v.M.C.I. (F.C.T.D.,
no. IMM-2227-00), Pelletier, November 24, 2000.
Return to note 271 referrer
- Note 272
Owusu-Ansah
v. Canada (Minister of Employment and Immigration) (1989), 8
Imm. L.R. (2d) 106 (F.C.A.).
Return to note 272 referrer
- Note 273
Owusu-Ansah
v. Canada (Minister of Employment and Immigration) (1989), 8
Imm. L.R. (2d) 106 (F.C.A.);
Hilo
v. Canada (Minister of Employment and Immigration) (1991), 15
Imm. L.R. (2d) 199 (F.C.A.);
Rajaratnam
v. Canada (Minister of Employment and Immigration) (1991), 135
N.R. 300 (F.C.A.).
Return to note 273 referrer
- Note 274
Danquah, Ama
v.S.S.C. (F.C.T.D.,
no. IMM-105-94), MacKay, November 17, 1994.
Return to note 274 referrer
- Note 275
Kutuk, Aydin
v.M.C.I. (F.C.T.D.,
no. IMM-2484-94), Simpson, April 18, 1995.
Return to note 275 referrer
- Note 276
M.E.I.v. Zhou, Ting Yu (F.C.A.,
no. A-492-91), Heald, Desjardins, Linden, July 18, 1994.
Return to note 276 referrer
- Note 277
Osei, Gyane Nana
v.M.E.I. (F.C.T.D.,
no. T-2992-92), Reed, November 17, 1993.
Return to note 277 referrer
- Note 278
In
Belhadj, Rachid
v.M.E.I. (F.C.T.D.,
no. A-779-92), Tremblay-Lamer, February 17, 1995, the Court found that there was no duty on the
CRDD to confront the claimant with contradictions between his testimony and the documentary evidence. In
Gutkovski, Alexander
v.S.S.C. (F.C.T.D.,
no. IMM-746-94), Teitelbaum, April 6, 1995, the Court held that the
CRDD was not obliged to advise the claimants of its concerns relating to foreign language press articles (which were not translated in their entirety and not accompanied by a translator's certificate or signature). In
Victorov, Alexey
v.M.C.I. (F.C.T.D.,
no. IMM-5170-94), Nol, June 14, 1995, the Court held that there was no requirement on the
CRDD to confront the claimants with the documentary evidence on country conditions used to diminish their credibility. See also
Ortiz, Hector Andres Gonzalez
v.M.C.I. (F.C.T.D.,
no. IMM-2485-96), Pinar, June 4, 1997. In
Ganagaratnam, Ravedasan
v.M.C.I. (F.C.T.D.,
no. IMM-3038-99), Dawson, June 26, 2000, the
CRDD did not confront the claimant with portions of the documentary evidence which gave rise to two of the panel's most significant concerns. The Court noted that the claimant was represented by counsel and had been advised that credibility was an issue. See also
Tekin, Arif
v.M.C.I. (F.C.T.D.,
no. IMM-1656-02), Snider, March 27, 2003, 2003
FCT 357. But see
Prapaharan, Sittampalam
v.M.C.I. (F.C.T.D.,
no. IMM-3667-00), McKeown, March 30, 2001, 2001
FCT 272, where the
CRDD's decision was overturned because the panel failed to question the claimant on documentary evidence which did not specifically address the subject of bribery, but which was believed to contradict the claimant's testimony that he obtained his National Identity Card by bribery.
Return to note 278 referrer
- Note 279
In
Apraku, Cecilia
v.M.E.I. (F.C.T.D.,
no. 92-T-1373), McKeown, June 23, 1993, the Court held that there was no requirement on the part of the credible basis tribunal to raise the question of the discrepancy between two medical reports filed by the claimant. In
Tshimanga, Pita
v.M.C.I. (F.C.T.D.,
no. IMM-3915-98), Rouleau, June 10, 1999, the Court held that there was no duty to confront the claimant with its doubts about a letter from his political organization which contradicted his testimony. However, in
Muthusamy, Lingam
v.M.E.I. (F.C.T.D.,
no. IMM-5801-93), Cullen, September 14, 1994, the Court held that the
CRDD erred by failing to give the claimant an opportunity to explain the contents of a videotape viewed by the
CRDD outside the hearing, and to answer concerns that arose from its viewing; furthermore, the
CRDD had a duty to alert the claimant about its concerns about the accuracy of the translation and the authenticity of identity documents. In
Chaudary, Imran Akram
v.M.C.I. (F.C.T.D.,
no. IMM-2048-94), Reed, May 4, 1995, the Court held that the Refugee Division erred in finding two letters not authentic without giving the claimant an opportunity to explain certain typography (the Court also raised a concern about imposing Canadian standards of typography). In
Guo, Yu Lan
v.M.C.I. (F.C.T.D.,
no. A-928-96), Heald, September 16, 1996, the Court held that the
CRDD erred in not confronting the claimant regarding inconsistencies between her testimony and her Chinese work unit card and a
PSB (Public Security Bureau) list of seized items attached to her
PIF. In
Gabor, Vasile
v.M.C.I. (F.C.T.D.,
no. IMM-1187-97), Muldoon, October 6, 1998, Reported:
Gabor
v. Canada (Minister of Citizenship and Immigration) (1998), 47
Imm. L.R. (2d) 201 (F.C.T.D.), the Court held that the
CRDD should have sought clarification from the claimant as to why the military call-up notice referred to at hearing, but submitted post hearing, was dated after the hearing. (The Court certified a question regarding that matter.)
Return to note 279 referrer
- Note 280
Canada (Minister of Employment and Immigration)
v. Salinas, [1992] 3
F.C. 247 (C.A.);
Kuslitsky, Igor
v.M.C.I. (F.C.T.D.,
no. IMM-4253-97), Dub, June 4, 1998 (a reply from the Israeli consulate);
Iyonmana, Teddyson Osaigbovo
v.M.C.I. (F.C.T.D.,
no. IMM-3389-99), Campbell, April 5, 2000 (Response to Information Request provided by the
CRDD);
Afzal, Amer
v.M.C.I. (F.C.T.D.,
no. IMM-6423-98), Lemieux, June 19, 2000 (Response to Information Request provided by the
CRDD);
Thamothampillai, Kathiresu
v.M.C.I. (F.C.T.D.,
no. IMM-2131-99), Dawson, July 19, 2000 (register of birth provided on behalf of the claimants). In
Sorogin, Yvacheslav
v.M.C.I. (F.C.T.D.,
no. IMM-1681-98), Tremblay-Lamer, March 8, 1999, which involved the receipt post-hearing of
RCMP lab results regarding the authenticity of a birth certificate provided by the claimant, the Court stated that "While reopening the hearing is always the most appropriate procedure," a departure from this procedure may be warranted "provided that the [claimant] consents to it and is not prejudiced by it in any way. However, should the [claimant] object to it, the panel should reopen the hearing." (A question was certified by the Court regarding this issue.)
In
Begum, Sultana Nur Niger
v.M.C.I. (F.C.T.D.,
no. IMM-1774-00), Blais, February 13, 2001, 2001
FCT 59, the Court dismissed the claimant's argument that the panel had based its decision on evidence filed after the hearing without her express consent. The information document on divorce procedures in Bangladesh had been discussed at the hearing and had been sent to the claimant's counsel after the hearing. The panel had not received any comments concerning this document, and the claimant had not objected to the filing of this exhibit or asked to have the inquiry reconvened. In
Orgona, Eva
v.M.C.I. (F.C.T.D.,
no. IMM-4517-99), MacKay, April 18, 2001, 2001
FCT 346, five months after the hearing, the panel disclosed to counsel information that it had recently received. There Court found there was no breach of natural justice where the claimant was given an opportunity to make submissions in writing, but chose not to. (The claimants submitted that they should have been allowed to respond orally to the evidence.)
Return to note 280 referrer
- Note 281
Danquah, Ama
v.S.S.C. (F.C.T.D.,
no. IMM-105-94), MacKay, November 17, 1994;
Appau, Samuel
v.M.E.I. (F.C.T.D.,
no. A-623-92), Gibson, February 24, 1995;
Akinremi, Oluwatosin Ololade
v.M.C.I. (F.C.T.D.,
no. IMM-726-94), Simpson, May 25, 1995;
Akinlolu, Grace Adefunke
v.M.C.I. (F.C.T.D.,
no. IMM-551-96), MacKay, March 14, 1997;
Tchaynikova, Olga
v.M.C.I. (F.C.T.D.,
no. IMM-4499-96), Richard, May 8, 1997;
Matarage, Lal Kumara Chandragupta
v.M.C.I. (F.C.T.D.,
no. IMM-1987-97), Lutfy, April 9, 1998;
Sarker, Jalal Uddin
v.M.C.I. (F.C.T.D.,
no. IMM-2597-97), MacKay, July 3, 1998, Reported:
Sarker
v. Canada (Minister of Citizenship and Immigration) (1998), 45
Imm. L.R. (2d) 209 (F.C.T.D.);
Zheng, Jian Hui
v.M.C.I. (F.C.T.D.,
no. IMM-1745-00), Lutfy, December 5, 2000.
Return to note 281 referrer
- Note 282
Torres, Alcibiades Marcelino Westres
v.M.C.I. (F.C.T.D.,
no. IMM-3184-01), Pinard, March 1, 2002, 2002
FCT 212;
Abdul, Gamel
v.M.C.I. (F.C.T.D.,
no. IMM-1796-02), Snider, February 28, 2003, 2003
FCT 260.
Return to note 282 referrer
- Note 283
Nkrumah, Afua
v.M.E.I. (F.C.T.D.,
no. 92-A-269), MacKay, July 9, 1993, Reported:
Nkrumah
v. Canada (Minister of Employment and Immigration) (1993), 20
Imm. L.R. (2d) 246 (F.C.T.D.), at 249.
Return to note 283 referrer
- Note 284
See
Aden, Ibrahim Ali
v.M.E.I. (F.C.A.,
no. A-813-91), Hugessen, MacGuigan, Dcary, April 28, 1993 (failure to obtain medical treatment);
Chand, Saroop
v.M.E.I. (F.C.T.D.,
no. 92-T-2035), Gibson, January 26, 1994;
Chehar, Kathirgamalingam
v.M.C.I. (F.C.T.D.,
no. IMM-4540-96), Wetston, October 20, 1997;
Espino, Cesar Pedro Guerra
v.M.C.I. (F.C.T.D.,
no. IMM-3958-97), Pinard, May 25, 1998;
Solis, Mario Rene Estrada
v.M.C.I. (F.C.T.D.,
no. IMM-3627-97), Wetston, September 17, 1998.
Return to note 284 referrer
- Note 285
Arumugam, Kandasamy
v.M.E.I. (F.C.T.D.,
no. IMM-1406-93), Reed, January 20, 1994.
Return to note 285 referrer
- Note 286
Owusu-Ansah
v. Canada (Minister of Employment and Immigration) (1989), 8
Imm. L.R. (2d) 106 (F.C.A.);
Rajaratnam
v. Canada (Minister of Employment and Immigration) (1991), 135
N.R. 300 (F.C.A.).
Return to note 286 referrer
- Note 287
Vallejo, Juan Ernesto
v.M.E.I. (F.C.A.,
no. A-799-90), Mahoney, Stone, Linden, March 26, 1993;
Epane, Florent
v.M.C.I. (F.C.T.D.,
no. IMM-974-98), Rouleau, June 17, 1999.
Return to note 287 referrer
- Note 288
Reyes, Hugo Hernan Cruz
v.M.E.I. (F.C.A.,
no. A-59-91), Mahoney, Stone, Linden, March 23, 1993;
Bains
v. Canada (Minister of Employment and Immigration) (1993), 20
Imm. L.R. (2d) 296 (F.C.T.D.). In
Miral, Stefnie Dinisha
v.M.C.I. (F.C.T.D.,
no. IMM-3392-97), Muldoon, February 12, 1999, the Court commented: "Although it is the function of the
CRDD to determine credibility, in this instance the panel appears to have imposed too high a standard regarding the amount of detail he [sic] required from her, forgetting, or perhaps overlooking, the fact that [police] interrogations such as those experienced by the [claimant] are designed to blur and blend together in the minds of those interrogated."
Return to note 288 referrer
- Note 289
Uthayakumar, Sivakumar
v.M.C.I. (F.C.T.D.,
no. IMM-2949-98), Blais, June 18, 1999;
Assalaarachchi, Sangitha Nadeeshani
v.M.C.I. (F.C.T.D.,
no. IMM-1924-99), Gibson, February 10, 2000. See also the guidelines on
Child Refugee Claimants: Procedural and Evidentiary Issues, Guidelines issued by the Chairperson pursuant to section 65(3) of the
Immigration Act,IRB, Ottawa, September 30, 1996, and continued under paragraph 159(1)(h) of
IRPA. While there is no requirement to refer specifically to these guidelines in the reasons for decision, the panel should be sensitive to the young age of a claimant when assessing credibility. See
Li, Yi Juan
v.M.C.I. (F.C.T.D.,
no. IMM-6299-99), Pelletier, November 14, 2001, 2001
FCT 1238, where the 15-year-old claimant could only provide very vague and general details about the meetings he attended. In
Ni, Le
v.M.C.I. (F.C.T.D.,
no. IMM-6301-99), Pelletier, November 14, 2001, 2001
FCT 1240, where the
CRDD found the 15-year-old claimant's testimony to be "confusing and incoherent" and "appeared to be rehearsed", the Court noted that "the Guidelines must be thought of as being a continuum. Clearly a twelve-year-old claimant must be given more latitude that a fifteen-year-old. The child's degree of maturity, as well as their age, must be taken into account in assessing their evidence." In
Bin, Qio Jian
v.M.C.I. (F.C.T.D.,
no. IMM-6307-99), Pelletier, November 14, 2001, 2001
FCT 1246, the Court noted that while the Guidelines admonish the
CRDD to be sensitive to the ability of child claimants to recall and present facts and details, it was not unreasonable for the
CRDD to expect a 17-year-old to say how many times the police came to his home prior to his father's arrest. In
Li, Tian Hua
v.M.C.I. (F.C.T.D.,
no. IMM-6306-99), Pelletier, November 14, 2001, 2001
FCT 1245, the Court noted, with apparent approval, the
CRDD's citing of paragragh 215 of the
UNHCRHandbook on Procedures and Criteria for Determining Refugee Status for the proposition that 16-year-olds are usually mature enough to have a well-founded fear of persecution and to have their cases determined as adults. In
Li, Feng Chai
v.M.C.I. (F.C.T.D.,
no. IMM-6303-99), Pelletier, November 14, 2001, 2001
FCT 1242, the Court observed that while it would be unreasonable to expect a minor to present evidence with same degree of precision as adults with respect to context, timing, importance and details, it is reasonable to expect a 15-year-old to know the difference between two months and two weeks.
Return to note 289 referrer
- Note 290
In
Navaratnam, Puvaneswary
v.M.C.I. (F.C.T.D.,
no. IMM-5645-01), O'Keefe, April 25, 2003, 2003
FCT 523, the Court found that the Board did take into consideration the effect of the passage of time and trauma on the memory of the elderly claimant before it. The Court noted that no psychological or psychiatric evidence was presented by the claimant to help put the inconsistences in the claimant's testimony into context. In
Ozturk, Erkan
v.M.C.I. (F.C.,
no. IMM-6343-02), Tremblay-Lamer, October 20, 2003, 2003
FC 1219, the Court stated that a claimant's mental health is of utmost importance in evaluating testimony and credibilty. Since the transcript confirmed that on many occasions the claimant was unable to understand the questions, it was unreasonable for the panel to refuse an adjournment request for a medical evaluation.
Return to note 290 referrer
- Note 291
In
Griffith, Marion
v.M.C.I. (F.C.T.D.,
no. IMM-4543-98), Campbell, July 14, 1999, the Court stated that in the case of credibility findings with respect to women suffering domestic violence, the reasons must be responsive to what is known about women in this condition (Battered Wife Syndrome), and cited with approval the
IRB's Gender Guidelines:
Women Refugee Claimants Fearing Gender-Related Persecution: Update, Guidelines Issued by the Chairperson Pursuant to Section 65(3) of the
Immigration Act,IRB, Ottawa, November 25, 1996, and continued under paragraph 159(1)(h) of
IRPA. In
Bennis, Fatima Zohra
v.M.C.I. (F.C.T.D.,
no. IMM-5825-00), Blais, August 29, 2001, 2001
FCT 968, the Court agreed with
Griffith, supra, that in assessing the credibility of someone who alleges mistreatment by a her spouse, the panel must not rely on the "objective" standard, but rather on the standard of a person who finds herself in the same situation, namely a mistreated person. See also
Begum, Sultana Nur Niger
v.M.C.I. (F.C.T.D.,
no. IMM-1774-00), Blais, February 13, 2001, 2001
FCT 59. In
Lubana, Rajwant Kaur
v.M.C.I. (F.C.T.D.,
no. IMM-2936-02), Martineau, February 3, 2003, 2003
FCT 116, the Court found that the panel had misunderstood that by being "insulted" and "humiliated" by the police, the claimant, a woman from rural India, meant that the police used rude language, whereas her use of euphemisms reflected the fact that her native culture discourages an open discussion of rape. In
Elezi, Astrit
v.M.C.I. (F.C.T.D.,
no. IMM-770-02), Campbell, February 20, 2003, 2003
FCT 210, the Court noted that, in assessing the evidence of a rape victim, the Board should demonstrate an awareness of what to expect from a rape victim generally, such as the symptoms of Rape Trauma Syndrome, as outlined in the Gender Guidelines.
In
Newton, Freda
v.M.C.I. (F.C.T.D.,
no. IMM-1159-99), Pelletier, May 25, 2000, the Court stated: "The Guidelines are an aid for the
CRDD panel in the assessment of the evidence of women who allege that they have been victims of gender-based persecution. The Guidelines do not create new grounds for finding a person to be a victim of persecution. To that extent, the grounds remain the same, but the question becomes whether the panel was sensitive to the factors which may influence the testimony of women who have been the victims of persecution." The Court further cautioned that "the Guidelines cannot be treated as corroborating any evidence of gender-based persecution so that the giving of the evidence becomes proof of the truth." In
Bennis, Fatima Zohra
v.M.C.I. (F.C.T.D.,
no. IMM-5825-00), Blais, August 29, 2001, 2001
FCT 968, the claimants' allegations of abuse at the hands of their spouse/father, which were not mentioned in the
PIF at all, were found not to be credible. The Court held that the
CRDD did not err in not taking into account the Gender Guidelines, since the panel had examined the actions of the husband, not those of the claimants, in making its finding of lack of credibility, and thus the guidelines were not relevant.
Return to note 291 referrer
- Note 292
Ngombo, Sunda
v.M.C.I. (F.C.T.D.,
no. IMM-1874-96), Gibson, January 31, 1997, Reported:
Ngombo
v. Canada (Minister of Citizenship and Immigration) (1997), 40
Imm. L.R. (2d) 321 (F.C.T.D.);
Kabengele, Mwana
v.M.C.I. (F.C.T.D.,
no. IMM-1422-99), Rouleau, November 16, 2000.
Return to note 292 referrer
- Note 293
In
Roble, Ubad Ahmed
v.M.E.I. (F.C.T.D.,
no. IMM-4004-93), McKeown, September 2, 1994, Reported:
Roble
v. Canada (Minister of Employment and Immigration) (1994), 25
Imm. L.R. (2d) 186 (F.C.T.D.), the Court noted that the
CRDD failed to consider the fact that the claimant was not a highly educated person and that in Somali culture, it is often the case that a wife is not privy to information concerning her husband's occupation. Furthermore, the panel's aggressive questions may have contributed to her evasiveness and hesitancy. In
Montenegro, Suleyama
v.M.C.I. (F.C.T.D.,
no. IMM-3173-94), MacKay, February 29, 1996, the Court faulted the
CRDD for ignoring the claimant's explanation that her knowledge of her father's political involvement in El Salvador was based entirely on what he had been willing to tell her, pointing out that "within their social order wives were not expected to question their husbands' activities."
Return to note 293 referrer
- Note 294
In
Miwa, Geoffrey
v.M.C.I. (F.C.T.D.,
no. IMM-3457-98), Rouleau, June 10, 1999, the Court believed that cultural differences and the use of an interpreter could colour the interpretation of allegedly conflicting identity documents. See also
Osarogiagbon, Helen Iyekeoretin
v.M.C.I. (F.C.T.D.,
no. IMM-1326-98), Reed, June 23, 1999;
Kpawirena-Biokeite, Barthel
v.M.C.I. (F.C.T.D.,
no. IMM-3910-00), Rouleau, May 15, 2001, 2001
FCT 478. However, in
Baines, Manjit Kaur
v.M.C.I. (F.C.T.D.,
no. IMM-1146-01), Nadon, May 28, 2002, 2002
FCT 603, the Court noted that problems with interpreters or problems of adaptation and understanding of other cultures have nothing to do with whether a claimant is telling the truth about events which occurred in his or her country.
Return to note 294 referrer
- Note 295
Attakora
v. Canada (Minister of Employment and Immigration) (1989), 99
N.R. 168 (F.C.A.);
Armson
v. Canada (Minister of Employment and Immigration) (1989), 9
Imm. L.R. (2d) 150 (F.C.A.);
Lai
v. Canada (Minister of Employment and Immigration) (1989), 8
Imm. L.R. (2d) 245 (F.C.A.);
Rajaratnam
v. Canada (Minister of Employment and Immigration) (1991), 135
N.R. 300 (F.C.A.). In
Assalaarachchi, Sangitha Nadeeshani
v.M.C.I. (F.C.T.D.,
no. IMM-1924-99), Gibson, February 10, 2000, the Court found that the
CRDD relied on "remarkably minute discrepancies" between the claimant's testimony, the
PIF narrative and the documentary evidence before it, and essentially disregarded documentary evidence capable of lending substantial weight to the claimant's story.
Return to note 295 referrer
- Note 296
Attakora
v. Canada (Minister of Employment and Immigration) (1989), 99
N.R. 168 (F.C.A.), at 169, per Hugessen
J.A.
Return to note 296 referrer
- Note 297
Mensah, George Akohene
v.M.E.I. (F.C.A.,
no. A-1173-88), Pratte, Hugessen, Desjardins, November 23, 1989.
Return to note 297 referrer
- Note 298
In
Sasan, Ahmadian
v.M.C.I. (F.C.T.D.,
no. IMM-1179-97), Rothstein, January 6, 1998, the
CRDD heard the claim in October 1995 and August 1996, and issued its decision in March 1997. (The
CRDD had made three significant factual errors in stating the evidence.) See also
Bukaka-Mabiala, Aime
v.M.C.I. (F.C.T.D.,
no. IMM-4296-98), Rouleau, June 18, 1999, where the Court noted that, in view of the six-month delay between the conclusion of the hearing and the issuance of the decision, a finding of "evasiveness" had to be based more on the Board members' notes than on their immediate impression of the claimant's demeanour and conduct when testifying, and thus subject to greater scrutiny.
Return to note 298 referrer
- Note 299
Paramo-Martinez, Jose Eduardo
v.M.C.I. (F.C.T.D.,
no. IMM-1321-99), Lutfy, February 28, 2000
; Neame, Nora Cathia
v.M.C.I. (F.C.T.D.,
no. IMM-847-99), Lemieux, March 23, 2000. Members may put questions to claimants during examination-in-chief on exclusion issues as well as in adverserial proceedings such as a vacation hearing, provided that the questioning is appropriate. See
Hundal, Manmohan Singh
v.M.C.I. (F.C.,
no. IMM-3914-02), Dawson, July 16, 2003, 2003
FC 884 (IAD hearing).
Return to note 299 referrer
- Note 300
In
Maksudur, Rahman
v.M.C.I. (F.C.T.D.,
no. IMM-5784-98), Nadon, September 8, 1999, the Court stated: "In most refugee claims, the prime issue, if not the only issue, is whether the story related by the [claimant] is true. Consequently, Board members have a duty to the [claimant] and to Canada to employ their best endeavours in the pursuit of that goalto discover the truth." In this case, the Court found that the Board members and counsel "did not appear to be interested in posing sufficient questions so as to enable them to determine whether, in fact, the [claimant] was telling a true story. The answers given by the [claimant], throughout his evidence, are vague and unresponsive. The answers provide 'generalities', but no specifics. Part of the reason for this is the inability of those questioning to pose proper questions to the [claimant]."
Return to note 300 referrer
- Note 301
Mahendran
v. Canada (Minister of Employment and Immigration) (1991), 14
Imm. L.R. (2d) 30 (F.C.A.), leave to appeal to
S.C.C. dismissed February 20, 1992;
Rajaratnam
v. Canada (Minister of Employment and Immigration) (1991), 135
N.R. 300 (F.C.A.);
Virk
v. Canada (Minister of Employment and Immigration) (1992), 140
N.R. 290 (F.C.A.);
Kanagasekarampillai, Kumaravelu
v.S.S.C. (F.C.A.,
no. A-171-91), Heald, Stone, McDonald, April 22, 1994 (the
CRDD erred, however, in not allowing claimant's counsel an opportunity to re-examine the claimant with respect to a new issue raised by the panel's questions);
Singh, Teja
v.M.E.I. (F.C.T.D.,
no. 92-T-1537), Joyal, January 10, 1994;
Peraza, Hector Manuel Umana
v.M.C.I. (F.C.T.D.,
no. IMM-145-94), Richard, October 19, 1994;
Carmona, Teresita Zepeda
v.M.E.I. (F.C.T.D.,
no. A-1333-92), Nadon, March 22, 1995;
Singh, Ranjit
v.M.C.I. (F.C.T.D.,
no. A-605-92), Reed, July 23, 1996;
Vijayarajah, Sasitharan
v.M.C.I. (F.C.T.D.,
no. IMM-4538-98), Tremblay-Lamer, May 12, 1999, Reported:
Vijayarajah
v. Canada (Minister of Citizenship and Immigration) (1999), 50
Imm. L.R. (2d) 113 (F.C.T.D.).
Return to note 301 referrer
- Note 302
In
Toth, Miklos
v.M.C.I. (F.C.T.D.,
no. IMM-2394-00), Dawson, March 6, 2001, 2001
FCT 149, the Court stated that there is a "duty imposed on each member of the
CRDD to conduct themselves according to the highest standards. Patience, respect and restraint are required at all times."
Return to note 302 referrer
- Note 303
Siba, Rosalie
v.M.C.I. (F.C.T.D.,
no. IMM-6327-00), Tremblay-Lamer, December 13, 2001, 2001
FCT 1380. The Court stressed that the panel's questioning must not be used to intimidate the claimant; the hearing must allow a calm dialogue between the claimant and the panel, in an atmosphere that encourages the search for the truth. In
Reginald
v. Canada (Mininster of Citizenship and Immigration), [2002] 4
F.C. 523 (T.D.), the Court chastised the panel for the insensitivity it demonstrated toward the claimant when she testified as to her alleged rape.
Return to note 303 referrer
- Note 304
Yusuf
v. Canada (Minister of Employment and Immigration), [1992] 1
F.C. 629 (C.A.), as summarized in
Mohammad, Selim
v.M.C.I. (F.C.T.D.,
no. IMM-2390-99), Lemieux, March 16, 2000.
Return to note 304 referrer
- Note 305
Mohammad, Selim
v.M.C.I. (F.C.T.D.,
no. IMM-2390-99), Lemieux, March 16, 2000 (claimant was represented by an immigration consultant who did not ask any questions flowing out of the
PIF and there was no
RCO).
Return to note 305 referrer
- Note 306
Kumar
v. Canada (Minister of Employment and Immigration), [1988] 2
F.C. 14 (C.A.) (the Court commented on the "intrusive and intimidating character of the Chairman's interventions" during examination-in-chief and the Chairman's "gross interference with the orderly presentation" of the claimant's case);
Yusuf
v. Canada (Minister of Employment and Immigration), [1992] 1
F.C. 629 (C.A.) (a member made "sexist, unwarranted and highly irrelevant observations");
Membreno-Garcia
v. Canada (Minister of Employment and Immigration), [1992] 3
F.C. 306 (T.D.) (the Court commented adversely on the "frequent interruptions" by the panel members);
Mark, Lazarus
v.M.E.I. (F.C.T.D.,
no. 92-T-1993), Reed, January 24, 1994 (both panel members approached the claim "with hostility" and entered into a "vigorous cross-examination of the claimant and his witnesses");
Castillo, Leonardo Patino del
v.M.E.I. (F.C.T.D.,
no. IMM-1431-93), Nadon, April 15, 1994;
Zheng, Xuan Chu
v.M.E.I. (F.C.T.D.,
no. A-701-91), Jerome, July 20, 1994, Reported:
Zheng
v. Canada (Minister of Employment and Immigration) (1994), 28
Imm. L.R. (2d) 191 (F.C.T.D.);
Mena, Roberto Antonio Polanco
v.M.C.I. (F.C.T.D.,
no. IMM-4506-94), Reed, May 12, 1995;
Ganji, Shalah Namdar
v.M.C.I. (F.C.T.D.,
no. IMM-3632-96), Gibson, August 29, 1997 (the panel had seized control of the claimant's case over the thwarted objection of the claimant's designated representative);
Chanda, Subodh Kumar
v.M.C.I. (F.C.T.D.,
no. IMM-3441-99), July 21, 2000 (the transcript revealed "an atmosphere of animosity" and thus raised a concern about a lack of objectivity by the panel);
Farkas, Szilvia
v.M.C.I. (F.C.T.D.,
no. IMM-5890-99), Heneghan, March 12, 2001, 2001
FCT 190 (the persistent and aggressive questioning by the panel member went too far; the member crossed the line from being an impartial adjudicator to becoming a participant in the arena);
Toth, Miklos
v.M.C.I. (F.C.T.D.,
no. IMM-2394-00), Dawson, March 6, 2001, 2001
FCT 149 (the transcript did not provide any apparent justification for the presiding member's interjection into what appeared to be an orderly direct examination conducted by counsel).
Return to note 306 referrer
- Note 307
In
Mohamed, Haweya Abdi
v.M.E.I. (F.C.A.,
no. A-43-91), Mahoney, MacGuigan, Linden, February 11, 1993, the Court stated: "The transcript of the hearing is a shambles, largely due to the aggressive intervention of the members of the panel throughout." In
Alam, Mohd Saeed
v.M.C.I. (F.C.T.D.,
no. IMM-4362-96), Rouleau, December 5, 1997, the persistent questioning of the claimant in the circumstances of this case could, in the Court's opinion, lead to confusion. In
Sawadogo, Salamata
v.M.C.I. (F.C.T.D.,
no. IMM-4162-00), Rouleau, May 17, 2001, 2001
FCT 497, the Court found that the panel cross-examined the claimant in order to confuse her and to cause her to make a mistake in her testimony.
Return to note 307 referrer
- Note 308
Neame, Nora Cathia
v.M.C.I. (F.C.T.D.,
no. IMM-847-99), Lemieux, March 23, 2000.
Return to note 308 referrer
- Note 309
Morante del Morral, Arturo Manuel
v.M.C.I. (F.C.T.D.,
no. IMM-2062-97), Dub, June 4, 1998;
Cruz, Alfredo Santiago
v.M.C.I. (F.C.T.D.,
no. IMM-3522-98), Teitelbaum, August 4, 1999.
Return to note 309 referrer
- Note 310
In
De Leon, Luis Francisco Estrada
v.M.C.I. (F.C.T.D.,
no. IMM-6251-98), Pelletier, July 9, 2000, the Court found that the
RCO embarked on a cross-examination worthy of a criminal trial: "It is also true that the refugee claims officer and the tribunal are entitled to cross-examine the [claimant] and, if circumstances require, that cross-examination may be hostile: but a search for the truth should not be confused with harassing the [claimant]."
Return to note 310 referrer
- Note 311
In
Bader, Erno
v.M.C.I. (F.C.T.D.,
no. IMM-5305-02), Phelan, February 10, 2004, 2004
FC 214, the Court stated: "The Applicant's contention, that the Officer overstepped his role and thereby biased the proceedings, cannot be made out. The Officer pointed out a number of inconsistencies between statements and documents. However, all the comments of the Officer were directed to alerting the Board as to issues of credibility. The Officer is not a decision maker. Whatever the conduct of the Officer, I cannot find that the Officer so influenced the Board that it did not reach its own conclusions or failed to make its own findings of credibility."
Return to note 311 referrer
- Note 312
Guideline 7:
Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division, Guidelines issued by the Chairperson Pursuant to Section 159(1)(h) of
IRPA.
IRB, Ottawa, effective December 1, 2003.
Return to note 312 referrer
- Note 313
Procedures for investigations of information are set out in the
Instructions for the Acquisition and Disclosure of Information for Proceedings in the Refugee Division (CRDD Instructions: 96-01).
Return to note 313 referrer
- Note 314
Sivaguru, Jegathas
v.M.E.I. (F.C.A.,
no. A-66-91), Heald, Hugessen, Stone, January 27, 1992, Reported:
Sivaguru
v. Canada (Minister of Employment and Immigration) (1992), 16
Imm. L.R. (2d) 85 (F.C.A.).
Return to note 314 referrer
- Note 315
Morante del Morral, Arturo Manuel
v.M.C.I. (F.C.T.D.,
no. IMM-2062-97), Dub, June 4, 1998.
Return to note 315 referrer
- Note 316
Attakora
v. Canada (Minister of Employment and Immigration) (1989), 99
N.R. 168 (F.C.A.);
Owusu-Ansah
v. Canada (Minister of Employment and Immigration) (1989), 8
Imm. L.R. (2d) 106 (F.C.A.);
Rajaratnam
v. Canada (Minister of Employment and Immigration) (1991), 135
N.R. 300 (F.C.A.).
Return to note 316 referrer
- Note 317
Benaissa, Karim
v.M.C.I. (F.C.T.D.,
no. IMM-1339-96), Jerome, April 18, 1997. See, however,
Bourouisa, Moussa
v.M.C.I. (F.C.T.D.,
no. IMM-1809-96), Nadon, May 23, 1997.
Return to note 317 referrer
- Note 318
Ming
v. Canada (Minister of Employment and Immigration), [1990] 2
F.C. 336 (C.A.), also reported as
Xie
v. Canada (Minister of Employment and Immigration) (1990), 10
Imm. L.R. (2d) 284 (F.C.A.);
Tung
v. Canada (Minister of Employment and Immigration) (1991), 124
N.R. 388 (F.C.A.). In
Lin, Zhen Shan
v.M.C.I. (F.C.T.D.,
no. IMM-5261-98), Evans, July 16, 1999, the Court held that the claimant was prejudiced when the Board did not try to obtain an interpreter who could understand the prayers, recited in an antiquated form of his dialect, that the claimant wanted the Board to hear, and which may have persuaded the Board about the claimant's knowledge of religious practice and overcome other credibility concerns.
Return to note 318 referrer
- Note 319
Chen, Bao Guo
v.M.C.I. (F.C.T.D.,
no. IMM-951-00), Lemieux, April 9, 2001, 2001
FCT 308.
Return to note 319 referrer
- Note 320
In
Rahaman
v. Canada (Minister of Citizenship and Immigration), [2002] 3
F.C. 537 (C.A.), at 556, the Court stated:
the existence of
some credible or trustworthy evidence will not preclude a 'no credible basis' finding if that evidence is insufficient in law to sustain a positive determination of the claim. Indeed, in the case in bar, Teitelbaum
J. upheld the 'no credible basis' finding, even though he concluded that, contrary to the Board's finding, the claimant's testimony concerning the intermittent availability of police protection was credible in light of the documentary evidence. However, the claimant's evidence on this issue was not central to the Board's rejection of his claim.
Return to note 320 referrer
- Note 321
Rahaman
v. Canada (Minister of Citizenship and Immigration), [2002] 3
F.C. 537 (C.A.). The Court noted, at
p. 563, that although "manifestly unfounded or clearly abusive" is the phrase used in international instruments, Parliament has retained the term "no credible basis" in the Act. Further, international law has not clearly defined what is a "manifestly unfounded or clearly abusive" application.
Return to note 321 referrer
- Note 322
M.C.I.v. Mathiyabaranam, Shiranjan (F.C.A.,
no. A-223-95), Stone, Linden, Gray, December 5, 1997, Reported:
Canada (Minister of Citizenship and Immigration)
v. Mathiyabaranam (1997), 41
Imm. L.R. (2d) 197 (F.C.A.);
Manimaran, Gayathiri
v.M.C.I. (F.C.A.,
no. A-414-95), Ltourneau, Rothstein, McDonald, May 22, 1999.
Return to note 322 referrer
- Note 323
Previously, under the
Immigration Act, when the claim was heard by a two-member panel of the
CRDD,
each member hearing the claim had to make a finding of "no credible basis" for the provision to apply.
Return to note 323 referrer
- Note 324
In
Gonzalez, Raul del Carmen Arredondo
v.M.C.I. (F.C.T.D.,
no. IMM-2719-97), Dub, June 25, 1998, the Court expressed surprise that the panel made a finding of "no credible basis" in these circumstances, but did not overturn the
CRDD decision and certified a question relating to this issue.
Return to note 324 referrer
- Note 325
Gomez, Jose Luis Torres
v.M.C.I. (F.C.T.D.,
no. IMM-1826-98), Pinard, April 29, 1999;
Manefo, Sidonie Lorince Donkeng
v.M.C.I. (F.C.T.D.,
no. IMM-3696-00), Teitelbaum, May 29, 2001, 2001
FCT 538.
Return to note 325 referrer
- Note 326
In
Stoica, Valentin
v.M.C.I. (F.C.T.D.,
no. IMM-1388-99), Pelletier, September 12, 2000, after rejecting the claimant's explanation regarding the failure to claim in a third country, the
CRDD concluded that the claimant did not have a subjective fear of persecution and that the claim did not have a credible basis. The Court held that if the claimant had a subjective fear without an objective basis, there would then be an element of credible proof or sufficient reason for supporting his claim. If there was not a subjective fear, the conclusion of an absence of credible basis would be justified.
Return to note 326 referrer
- Note 327
Singh, Prem
v.M.C.I. (F.C.T.D.,
no. IMM-1768-00), Pinard, March 16, 2001, 2001
FCT 184.
Return to note 327 referrer
- Note 328
Baker
v. Canada (Minister of Citizenship and Immigration), [1999] 2
S.C.R. 817.
Return to note 328 referrer
- Note 329
Foyet, ric Kennedy
v.M.C.I. (F.C.T.D.,
no. IMM-3004-99), Denault, October 3, 2000;
Geng, Xin
v.M.C.I. (F.C.T.D.,
no. IMM-300-00), Blanchard, April 2, 2001, 2001
FCT 257;
Siba, Rosalie
v.M.C.I. (F.C.T.D.,
no. IMM-6327-00), Tremblay-Lamer, December 13, 2001, 2001
FCT 1380.
Return to note 329 referrer
- Note 330
M.C.I.v. Mathiyabaranam, Shiranjan (F.C.A.,
no. A-223-95), Stone, Linden, Gray, December 5, 1997, Reported:
Canada (Minister of Citizenship and Immigration)
v. Mathiyabaranam (1997), 41
Imm. L.R. (2d) 197 (F.C.A.);
Gomez, Jose Luis Torres
v.M.C.I. (F.C.T.D.,
no. IMM-1826-98), Pinard, April 29, 1999;
Nizeyimana, Yasina
v.M.C.I. (F.C.T.D.,
no. IMM-1789-00), Pinard, March 30, 2001, 2001
FCT 259.
Return to note 330 referrer
- Note 331
Kanvathipillai, Yogaratnam
v.M.C.I. (F.C.T.D.,
no. IMM-4509-00), Pelletier, August 16, 2002, 2002
FCT 881. The Court noted that the Court of Appeal decision in
Rahaman did not specifically deal with the issue of whether reasons had to be given for a finding of "no credible basis". The Court reasoned that the Court of Appeal's opinion as to the signifiance of a "no credible basis" decision, as well as its decision as to the basis upon which the Board could come to such a conclusion militate against the provision of distinct reasons justifying a finding of "no credible basis".
Return to note 331 referrer
- Note 332
In
Kouril, Zdenek
v.M.C.I. (F.C.T.D.,
no. IMM-2627-02), Pinard, June 13, 2003, 2003
FCT 728, the Court noted that the Board correctly found a lack of nexus between the claimant's fear and the Convention grounds, but did not question the claimant's credibility, except for his assertion that he would be unable to obtain state protection, and seems to have accepted that he was the victim of organized crime. Thus, it was required to explain explicitly its "no credible basis" finding under
s. 69.1(9.1) of the
Immigration Act, apart from the finding of a lack of nexus.
Return to note 332 referrer
- Note 333
Foyet, ric Kennedy
v.M.C.I. (F.C.T.D.,
no. IMM-3004-99), Denault, October 3, 2000.
Return to note 333 referrer
- Note 334
Herve, Mwamba
v.M.C.I. (F.C.T.D.,
no. IMM-1028-98), Tremblay-Lamer, February 5, 1999;
Hernandez, Manuel Rolando Pineda
v.M.C.I. (F.C.T.D.,
no. IMM-3020-98), Pinard, April 30, 1999.
Return to note 334 referrer
- Note 335
Rahaman
v. Canada (Minister of Citizenship and Immigration), [2002] 3
F.C. 537 (C.A.). Having concluded that the claimant's credibility was lacking and that no documentary evidence existed to support the allegation of his personal situation in Bangladesh, the Trial Division held that
CRDD was not unreasonable in determining the claim had no credible basis. See
Rahaman, Minazur
v.M.C.I. (F.C.T.D.,
no. IMM-1112-99), Teitelbaum, November 2, 2000.
Return to note 335 referrer
- Note 336
Foyet, ric Kennedy
v.M.C.I. (F.C.T.D.,
no. IMM-3004-99), Denault, October 3, 2000. See also
Siba, Rosalie
v.M.C.I. (F.C.T.D.,
no. IMM-6327-00), Tremblay-Lamer, December 13, 2001, 2001
FCT 1380.
Return to note 336 referrer
- Note 337
See
s. 49(2)(c) of
IRPA and
s. 231(2) of the
Immigration and Refugee Protection Regulations.
Return to note 337 referrer