Considering the Evidence in its Entirety

Flickr photo by Monica, M

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

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

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

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

The Presumption 

A tribunal is presumed to have taken all of the evidence into consideration whether or not it indicates having done so in its reasons.  Even the inclusion of “boilerplate” reasons or assertions may not be sufficient to prevent this inference.  Therefore, the mere fact that the tribunal fails to refer to all of the evidence when rendering its decision does not necessarily signify that it ignored evidence, if a review of the reasons suggests that the tribunal did consider the totality of the evidence.

However, as explained inCepeda-Gutierrez, the more relevant the evidence, the more likely the Federal Court will find an error if it is omitted from the analysis:

…the more important the evidence that is not mentioned specifically and analyzed in the agency’s reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact “without regard to the evidence”: Bains v. Canada (Minister of Employment and Immigration) [(1993), 20 Imm. L.R. (2d) 296 (F.C.T.D.)]. In other words, the agency’s burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency’s finding of fact. Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.

Thus, a presumption exists that the panel weighed each point of evidence, but there is still a duty, namely that of mentioning important evidence supporting the panel’s decision.

Generally speaking, it is only necessary to refer explicitly to evidence that is directly relevant to the issue being addressed, and that which otherwise may appear to be in conflict with the conclusion reached.



The Benefit of the Doubt

Flickr photo by Stuck in Customs

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

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

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

[The dissenting judge] argues that no conclusions can be drawn from individual items of evidence and that on each item the appellant should be given the benefit of the doubt, often by considering hypotheticals which could support the appellant’s claim.  This approach handicaps a refugee determination Board from performing its task of drawing reasonable conclusions on the basis of the evidence which is presented.  This approach is also fundamentally incompatible with the concept of “benefit of the doubt” as it is expounded in the UNHCR Handbook:

204.     The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant’s general credibility.  The applicant’s statements must be coherent and plausible, and must not run counter to generally known facts.  [Emphasis added.]

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

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

All of these facts, particularly when taken collectively, run directly counter to all the available evidence as to the behaviour to be expected of the authorities if their intention was to coerce the appellant physically to be sterilized.  The available evidence establishes that Chinese authorities intent on physical coercion in contravention of “official” government policy would first exhaust all other means of coercion.  Since the appellant’s claim that he would be physically coerced into sterilization runs contrary to the available evidence and generally known facts it is not an appropriate instance in which to apply the benefit of the doubt in order to establish the appellant’s case.  The appellant’s evidence is more consistent with the appellant’s later comment that the major concern of the local officials was the loss of their bonus owing to the breach of the one-child policy, a concern which presumably would have been substantially alleviated by the payment of the stiff fine imposed by those authorities.

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

Converting from Judicial Review to an Action

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

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

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

Converting to an Action

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

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

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

Examples of Cases that were Converted

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

Sivak v. Canada (2011 FC 402)

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

Visa Officers take Documents at Face Value

Where a visa officer relies on evidence received from sources other than an applicant, the applicant must be made aware of the information in the possession of the officer, and must be afforded an opportunity to respond to it. However, where all of the evidence relied upon by an officer is received by the applicant, then the officer is entitled to take the evidence at face value. The duty is on the applicant to explain any parts of the application that should not be taken at face value. This is a lesson that a recent student of Manav Rachna recently learned the hard way.
Continue reading →