One of the biggest issues in refugee law, and indeed all areas of immigration law, is credibility. This post addresses the jurisprudence regarding when a tribunal can infer that an individual is not credible.
In short, where the tribunal finds a lack of credibility based on inferences, there must be a basis in the evidence to support the tribunal’s inferences. It is not open to tribunal members to base their decision on assumptions and speculations for which there is no real evidentiary basis.
In Jones v. Great Western Railway Co. (1930), 47 T.L.R. 39, the House of Lords (in a decision frequently cited by Canadian courts) noted that:
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.
Using the word “we feel” without providing any further evidence is an example of an unreasonable conjecture as opposed to a reasonable inference: Mahalingam, Shyama Ushandhini v. Canada (Minister of Citizenship and Immigration).
Having said that, a credibility assessment is “the heartland of the discretion of triers of fact”, and in making its determination, the Immigration and Refugee Board is entitled to take into account the discrepancies, contradictions and omissions in the evidence and to view the evidence from the perspective of rationality and common sense: Giron v Canada (Minister of Employment and Immigration).
Indicators of Credibility
Important indicators of credibility include the consistency with which an individual has told a story, the plausibility of the evidence, and the individual’s demeanour and general reliability.
In each of these factors, while the Board cannot engage in microscopic analysis of an individual’s claim to find examples of credibility, it can point to such instances as examples of overall trends demonstrating a lack of credibility: Francis v. Canada.
In terms of demeanour and general reliability, factors that courts consider in assessing the credibility of a witness can include:
- desire to be truthful
- their motives
- general integrity
- general intelligence
- relationship or friendship to other parties
- opportunity for exact observation
- capacity to observe accurately
- firmness of memory to carry in the mind the facts as observed
- ability to resist the influence, frequently unconscious, to modify recollection
- capacity to express what is clearly in the mind
- ability to reproduce in the witness-box the facts observed
- demeanour while testifying
Courts will give tribunals significant deference on all of these factors, as the aptitude to answer questions in an honest and clear manner, the coherence and the uniformity of the answers are subject to the appreciation of a trier of fact in respect of the credibility of an applicant: Lapointe v Hôpital le Gardeur
Indeed, as noted in Wen v Canada (Minister of Employment and Immigration), an assessment of personal demeanour ought not to be interfered with by the Federal Court, which lacks the advantages available to the trier of fact.
Why Does Credibility Matter?
Credibility matters because a general finding of a lack of credibility on the part of an applicant may extend to all relevant evidence emanating from that individual’s testimony.
In the refugee context, for example, as claimant’s testimony may often be the only evidence linking the claimant to the alleged persecution and, in such cases, if the claimant is not found to be credible, there will be no credible or trustworthy evidence to support the claim.