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Assessment of Credibility in Claims for Refugee Protection

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Assessment of Credibility in Claims for Refugee Protection Refugee Protection Division Assessment of Credibility in Claims for Refugee Protection Legal Services January 31, 2004 Implementation of the Refugee Appeal Division (RAD) of the Immigration and Refugee Board (IRB) has been deferred, and therefore the provisions of the Immigration and Refugee Protection Act referring to the RAD are not operative. Immigration and La Commission de l’immigration Refugee Board et du statut de réfugié MEMORANDUM NOTE DE SERVICE Classification To/à Chairperson; RPD Deputy Chairperson; File / Dossier RPD ADCs; PDB; All RPD Members and RPOs Originator / Auteur Krista Daley Supervisor / Surveillant From/de Krista Daley General Counsel and Director, Legal Date Subject / Objet 2004-09-09 Paper on Assessment of Credibility in Claims for Refugee Protection Attached please find the updated version of the Legal Services paper Assessment of Credibility in Claims for Refugee Protection, dated January 31, 2004. The electronic version will be available shortly in Intranet and in the IRB’s website. This update replaces the previous version of this paper in its entirety. I trust that you will continue to find this paper useful. If you have any comments about the format or the content, please forward them to Richard Tyndorf, Legal Adviser, who is responsible for updating this paper. “original signed by” __________________ Krista Daley TABLE OF CONTENTS FOREWORD ….…….… 1 1. GENERAL PRINCIPLES AND OBSERVATIONS .................... 2 1.1. Credible or Trustworthy Evidence ... 2 1.2. Consistency on Findings of Credibility ... 3 1.3. Benefit of the Doubt ... 4 1.4. Notice to the Claimant … 5 1.5. Allowing Testimony, Witnesses and Examination of Documents ... 7 1.6. Interlocutory Decisions on Credibility ... 8 1.7 . Proper Evidentiary Basis for Findings on Credibility ... 8 1.8. Considerations on Judicial Review and Appeal … 9 1.9. Assessing a Witness’s Testimony ... 9 2. SPECIFIC CONCERNS …..................11 2.1. CONSIDERING ALL OF THE EVIDENCE ..................... 11 2.1.1. Considering the Evidence in its Entirety ... 11 2.1.2. Assessing the Balance of the Evidence Found to be Credible ... 14 2.1.3. General Finding of Lack of Credibility ... 16 2.1.4. Lack of Subjective Fear …16 2.1.5. Joined and Related Claims ... 17 2.2. MAKING CLEAR FINDINGS ON CREDIBILITY AND PROVIDING ADEQUATE REASONS .................... 20 2.2.1. Clear Findings on Credibility ... 20 2.2.2. Adequacy of Reasons ... 20 2.3. BASING A DECISION ON SIGNIFICANT AND RELEVANT EVIDENCE AND ASPECTS OF THE CLAIM .................... 23 2.3.1. Relevancy Considerations ...23 2.3.2. Contradictions, Inconsistencies and Omissions ... 23 2.3.3 PIFs and Statements Made to Immigration Officials …26 2.3.4. Materiality ... 31 2.3.5. Impausibilities … 33 2.3.6. Incoherent and Vague Testimony and Lack of Knowledge or Detail … 38 2.3.7. Demeanour … 39 2.3.8. Criminal and Fraudulent Activities in Canada … 41 2.3.9. Delay in Claiming Refugee Status and Other Related Factors … 42 Assessment of Credibility in i Legal Services, IRB Claims for Refugee Protection January 31, 2004 2.4. RELYING ON TRUSTWORTHY EVIDENCE TO MAKE ADVERSE FINDINGS OF CREDIBILITY .................... 52 2.4.1. Trustworthy Evidence on Which to Base Findings ... 52 2.4.2. Presumption of Truthfulness ... 52 2.4.3 Corroborative Evidence … 54 2.4.4 Silence of the Documentary Evidence … 55 2.4.5 Lack of Identity and Other Personal Documents … 56 2.4.5.1. Legislation … 56 2.4.5.2. Commentary to RPD Rule 7 … 57 2.4.5.3. Background and Jurisprudence … 59 2.4.6 Self-Serving Evidence … 67 2.4.7 Preferring Documentary Evidence to the Claimant’s Testimony … 68 2.4.8 Assessing Documents … 69 2.4.9 Medical Reports ... 73 2.5. ALLOWING THE CLAIMANT TO CLARIFY CONTRADICTIONS OR INCONSISTENCIES IN THE TESTIMONY .................... 77 2.5.1. General Principle ... 77 2.5.2. Confronting the Claimant with Contradictions or Inconsistencies Internal to the Claimant’s Testimony ... 77 2.5.3. Confronting the Claimant Where the Testimony is Vague ... 80 2.5.4. Confronting the Claimant with Documentary Evidence ... 80 2.5.5. Confronting the Claimant Where There Are Implausibilities ... 82 2.6. TAKING THE CHARACTERISTICS OF THE PROCESS INTO ACCOUNT .................... 84 2.6.1. Hearing Procedures ... 84 2.6.2. Special Circumstances of the Claimant ... 84 2.6.3. Assessing the Evidence ... 86 2.6.4. Questioning by the Board Member or Refugee Protection Officer ... 87 2.6.5. The Filter of an Interpreter ... 91 3. A FINDING OF “NO CREDIBLE BASIS” .................... 92 3.1. Overview … 92 3.2. Legislation … 92 3.3. Notice to the Claimant Not Required …93 3.4. Application of the Provision ... 93 3.5. Interrelation between “Credibility” and “Credible Evidence” … 95 3.6. Consequences of a Finding of “No Credible Basis” ... 97 APPENDIX: TABLE OF CASES CITED ................... 98 __________________________________________________________________________________________________________________ Assesssment of Credibility in ii Legal Services, IRB Claims for Refugee Protection January 31, 2004 FOREWORD The process of determining whether a claimant is a Convention refugee or a “person in need of protection” under the Immigration and Refugee Protection Act (IRPA)1 is one that requires members of the Refugee Protection Division (RPD) to decide whether they believe the claimant’s evidence and how much weight to give to that evidence. In determining this, members must assess the credibility of the claimant, other witnesses and the documentary evidence. It is important to bear in mind, as the Federal Court has pointed out, that a negative credibility determination which may be determinative of a Convention refugee claim under section 96 of IRPA is not necessarily determinative of a claim as a person in need of protection under section 97. Whether the Board has properly considered both the section 96 and section 97 claims is determined in the circumstances of each individual case, bearing in mind the different elements required to establish each claim.2 Under the former Immigration Act,3 the determination of whether a person is a Convention refugee was made by members of the Convention Refugee Determination Division (CRDD). The references to the CRDD in previous versions of this paper have been changed to the RPD or the Board, as applicable. The Refugee Hearing Officer (RHO) or Refugee Claim Officer (RCO) is now known as the Refugee Protection Officer (RPO) under IRPA. All references to “the Court” mean the Federal Court of Canada, unless stated otherwise. The paper includes the relevant jurisprudence up to January 31, 2004. 1 S.C. 2001, c. 27. IRPA was proclaimed on November 1, 2001 and is to come into effect on June 28, 2002. “Convention refugee” is defined in 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. 2 Nyathi, Sehlule v. M.C.I. (F.C., no. IMM-5122-02), Blanchard, September 30, 2003, 2003 FC 1119. 3 th R.S.C. 1985 (4 Supp.), c.28. __________________________________________________________________________________________________________________ Assessment of Credibility in 1 Legal Services, IRB Claims for Refugee Protection January 31, 2004 1. GENERAL PRINCIPLES AND OBSERVATIONS 1.1. Credible or Trustworthy Evidence4 Assessment of credibility is guided by legislative provisions and principles found in the jurisprudence. IRPA states in section 170: 170. The Refugee Protection Division, in any proceeding before it, … (g) is not bound by any legal or technical rules of evidence; (h) may receive and base a decision on evidence that is adduced in the proceedings and considered credible or trustworthy in the circumstances. A similar provision was found in the former Immigration Act: 68.(3) The Refugee Division is not bound by any legal or technical rules of evidence and, in any proceedings before it, may receive and base a decision on evidence adduced in the proceedings and considered credible or trustworthy in the circumstances of the case. Thus the RPD cannot reject evidence simply because it is hearsay: reasons must be provided for considering such evidence to be unreliable.5 Where the Board finds a lack of credibility based on inferences, there must be a basis in the evidence to support the inferences. It is not open to Board members to base their decision on assumptions and speculations for which there is no real evidentiary basis.6 4 See also IRB Legal Services, Weighing Evidence, December 31, 2003. 5 Yabe, Said Girre v. M.E.I. (F.C.A., no. A-945-90), Hugessen, Desjardins, Létourneau, March 17, 1993; M.E.I. v. Boampong, Sheikh Jedges (F.C.A., no. A-1219-91), Isaac, Marceau, McDonald, August 6, 1993. 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.
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