Inferring a Lack of Credibility

30th Sep 2011 Comments Off on Inferring a Lack of Credibility

Last updated on April 17th, 2019

Last Updated on April 17, 2019 by Steven Meurrens

One of the biggest issues in immigration law is credibility.

When a 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.

At the same time, as per the Federal Court of Canada decision in Giron v Canada (Minister of Employment and Immigration), 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.

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.

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You Omit Information at your Peril

30th Sep 2011 Comments Off on You Omit Information at your Peril

Last Updated on September 30, 2011 by Steven Meurrens

It is important that applications be as thorough as possible in their applications.  The Federal Court has consistently said that the onus is on visa applicants have one shot to put their best foot forward.

In Owusu v Canada (Minister of Citizenship and Immigration), the Federal Court of Appeal put the principle differently, but in a way that is just as clear.  It stated that applicants have the onus of establishing the facts on which their claim rests, and that they omit pertinent information from their written submissions at their peril.

Gonzalez Vazquez v. Canada (Citizenship and Immigration) is a perfect example of how important that it is to be as thorough as possible.  There, an applicant wanted to convey in an Application to Immigrate to Canada for Humanitarian & Compassionate Considerations how detrimental removal would have been to her children.  To this effect, she had the child’s teacher write a letter.  The letter stated that:

[T]he same value is not placed on “safe and caring” schools, and children are often in danger of being harassed by others, or having their belongings stolen.  Would their children be a target?  It seems likely, since they have only known Canadian culture, and barely speak Spanish.

The immigration officer in rejecting the application considered this statement in the context in which it was made; the context that their inability to communicate in Spanish was likely to lead to harassment and their being targeted.  The officer read it as an anti-bullying argument. Apparently, the applicant had wanted to convey that the language issue would have an adverse impact on the childrens’ ability to have proper access to and reasonable success at school. 

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Consistency on Findings of Credibility

29th Sep 2011 Comments Off on Consistency on Findings of Credibility

Last updated on April 17th, 2019

Last Updated on April 17, 2019 by Steven Meurrens

A huge concern amongst applicants who have previously submitted applications or documentation to a decision maker is whether their further submissions will contradict what they previously submitted, and whether this will materially negatively impact their credibility.

In short, the existence of contradictions or inconsistencies in the evidence of an individual or witness is a well-accepted basis for a finding of lack of credibility.  However, the discrepancies must be sufficiently serious and must concern matters that are relevant to warrant an adverse finding.

In Sheikh, Asad Javed v. Canada (Minister of Citizenship and Immigration), the Federal Court stated the following regarding the factors that should be considered when assessing inconsistencies or discrepancies:

The discrepancies relied on by the Refugee Division must be real. The Refugee Division must not display a zeal “to find instances of contradiction in the [claimant’s] testimony … it should not be over-vigilant in its microscopic examination of the evidence”. The alleged discrepancy or inconsistency must be rationally related to the [claimant’s] credibility. Explanations which are not obviously implausible must be taken into account.

Moreover, another line of cases establishes the proposition that the inconsistencies found by the Refugee Division must be significant and be central to the claim and must not be exaggerated.

[Citations removed.]

Finally, the Federal Court has cautioned, however, that, as between different cases, “[t]here can be no consistency on findings of credibility.” Credibility cannot be prejudged and is an issue to be determined by tribunal members in each case based on the circumstances of the individual claimant and the evidence.

Given the jurisprudence,

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Considering the Evidence in its Entirety

29th Sep 2011 Comments Off on Considering the Evidence in its Entirety

Last Updated on September 29, 2011 by Steven Meurrens

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.  

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The Benefit of the Doubt

29th Sep 2011 Comments Off on The Benefit of the Doubt

Last Updated on September 29, 2011 by Steven Meurrens

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. 

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R v. Topp, Fines, and Criminal Inadmissibility

27th Sep 2011 Comments Off on R v. Topp, Fines, and Criminal Inadmissibility

Last Updated on September 27, 2011 by Steven Meurrens

 

An individual who is criminally inadmissible to Canada will be eligible to apply for rehabilitation after five years have passed since the individual completed his/her sentence.  A sentence can include imprisonment, a fine, or probation.

Next to probation, the payment of a fine is a type of sentence that can significantly extend a person’s sentence for Canadian immigration purposes.  The reason is because the payment of fines are often staggered over a period of time.  This is especially the case in the United States, where, for example, I have seen fines of $2000 stretched over twenty $100 monthly payments.

The Supreme Court of Canada recently released a decision which makes me wonder whether there may be a potential argument that a fine imposed outside of Canada should not be counted for the purpose of determining eligibility to apply for rehabilitation if the inadmissible person can argue that he/she simply cannot pay it.

In R v. Topp, 2011 FC 43, the accused used his brokerage business to defraud Canada Customs of $4.7 million.  The Crown sought a $4.7 million fine in addition to imprisonment.  The trial judge sentenced the accused to imprisonment but declined to impose a fine because she was not satisfied as required by s. 734(2) of the Criminal Code that the accused was able to pay a fine.

Section 734(2) of Canada’s Criminal Code provides that:

Except when the punishment for an offence includes a minimum fine or a fine is imposed in lieu of a forfeiture order, a court may fine an offender under this section only if the court is satisfied that the offender is able to pay the fine or discharge it under section 736.

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FBAR – Implication for Canadian Permanent Residents and Citizens

22nd Sep 2011 Comments Off on FBAR – Implication for Canadian Permanent Residents and Citizens

Last Updated on September 22, 2011 by Steven Meurrens

The Internal Revenue Service (IRS) is increasing its focus on reporting of foreign financial accounts by U.S. persons. Despite recent protests by Finance Minister Jim Flaherty on the matter, the changes seem like they are going to go ahead. There are potentially significant implications that representatives should advise their US clients about. Put simply, just because your US clients are becoming Canadian permanent residents or citizens does not mean that they are absolved from reporting their taxes to the United States.

The Report of Foreign Bank and Financial Accounts (FBAR) is an IRS form. Any United States person who has a financial interest in any financial account in a foreign country where the aggregate value of the accounts exceeds $10,000 is required to file the form. Accounts that require reporting include Canadian bank accounts, investments, mutual funds, life insurance, RRSPs, RESPs, TFSA’s, etc. With such a low threshold, the FBAR reporting requirements likely apply to many of your American clients.

The IRS website states that failure to file an FBAR when required to do so may result in civil penalties, criminal penalties or both. If your clients have not been filing an FBAR when they were required to do so, then they can file the delinquent FBAR reports and attach a statement explaining why the reports were filed late. The IRS website states that no penalty will be asserted if the IRS determines that the late filings were due to reasonable cause.

Clients who knowingly fail to file the FBAR report could be subject to civil penalties equal to the greater of USD $100,000 or 50% of the total value of the foreign assets per year, assuming the client is non-compliant for multiple years.

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Custodianship for Minors

16th Sep 2011 Comments Off on Custodianship for Minors

Last Updated on September 16, 2011 by Steven Meurrens

Many minors wish to reside temporarily in Canada.  Their reasons for doing so range from making extended visits to the more common scenario of studying in Canada as an international student.

In order to obtain a visitor visa or a study permit, minor applicants generally must supply two notarized declarations.  The first is from the parent or legal guardian in the applicant’s country of origin.  The second is from the minor applicant’s intended custodian in Canada, stating that arrangements have been made for the custodian to act in place of the parent and to support the child.

On September 15, 2011, Citizenship and Immigration Canada introduced an exception to the custodianship requirement to some minor’s aged 17 and older.

Definition of Minor Child

In Canada, each province or territory defines the age of majority. Anyone under the age of majority at the time of their arrival in Canada is considered to be a “minor child.”

  • The age of majority is 18 in: Alberta, Manitoba, Ontario, Prince Edward Island, Quebec, and Saskatchewan.
  • The age of majority is 19 in: British Columbia, New Brunswick, Newfoundland and Labrador, Nova Scotia, Northwest Territories, Nunavut, and the Yukon.

(On a side note, it is interesting that the age of majority does not always correspond to the legal drinking age.  In Ontario, Saskatchewan, and Prince Edward Island, the minimum drinking age is 19.)

Under 17 Years of Age

If a minor is less than 17 years of age at the time of application, a Canadian custodian will be required.  In addition to the information already required on the forms, custodians will also now have to confirm that they will reside within a reasonable distance to the minor applicant’s intended residence and/or school.

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Secret Evidence Used Against Me? (On Extrinsic Evidence) [Updated]

15th Sep 2011 Comments Off on Secret Evidence Used Against Me? (On Extrinsic Evidence) [Updated]

Where immigration officers have extrinsic evidence particular to an applicant, and that applicant is unaware that the immigration officer has that evidence, then procedural fairness requires that immigration officers disclose this evidence to the applicant.

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The Impact of the Temporary Foreign Worker Program on Alberta

14th Sep 2011 Comments Off on The Impact of the Temporary Foreign Worker Program on Alberta

Last Updated on September 14, 2011 by Steven Meurrens

In August 2011 Teresa Woo-Paw, the Alberta Parliamentary Assistant to the Minister of Employment and Immigration released a report titled Impact of the Temporary Foreign Worker (TFW) Program on the Labour Market in Alberta. The main thrust of the report was that Alberta’s workforce is projected to be 77,000 workers short between 2002 and 2012, with overall demand outpacing supply from 2015, and that Alberta should implement, and the Government of Canada should facilitate, Alberta implementing a program to attract labour through immigration to address the labour shortage.  The report contained numerous recommendations, some of which were accepted by the Alberta government.

The Political Back and Forth Between Jason Kenney and the Government of Alberta

In response to the report, Thomas Lukaszuk, Alberta’s Minister of Employment and Immigration, recently urged the federal government to remove the annual caps on the number of provincial nominees.

The Brooks Bulletin recently reported on Jason Kenney’s, the federal Minister of Citizenship and Immigration, response.  According to the Brooks Bulletin, he stated:

It would almost result in doubling national immigration levels to Canada when 80 per cent of Canadians are saying immigration levels are already high enough or are too high.

I think they are totally disconnected from reality on that.

To be honest with you there’s a tension between the need to keep this a Canada-first program and the need to facilitate filling positions in an efficient way.  We can’t just open up the rules willy-nilly. There has to be some reasonable rules in the program that ensures Canadians are getting the first crack [at jobs].

Although Jason Kenney is probably correct in noting that removing the provincial nomination quotas would result in a dramatic increase in immigration levels,

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