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.


Leave a Reply

Your email address will not be published. Required fields are marked *