Canada’s Immigration and Refugee Protection Act provides:

No credible basis

107(2) If the Refugee Protection Division is of the opinion, in rejecting a claim, that there was no credible or trustworthy evidence on which it could have made a favourable decision, it shall state in its reasons for the decision that there is no credible basis for the claim.

Manifestly unfounded

107.1 If the Refugee Protection Division rejects a claim for refugee protection, it must state in its reasons for the decision that the claim is manifestly unfounded if it is of the opinion that the claim is clearly fraudulent.

A finding of “no credible basis” may only be made where there is no credible or trustworthy evidence on which the Refugee Protection Division (the “RPD“) could make a positive finding. It is a high threshold that limits an applicant’s subsequent procedural rights.  Before determining that an applicant’s refugee claim has no credible basis, the RPD must look to the objective documentary evidence for any trustworthy or credible support for an Applicant’s claim.

A lack of credibility is not the same as saying that a claim has no credible basis.

Canada (Citizenship and Immigration) v. Singh, 2016 FCA 300

In Canada (Citizenship and Immigration) v. Singh, the Federal Court of Appeal answered the question of whether the RPD could still determine that a claim was manifestly uncredible after it had determined that an individual was excluded from refugee protection under Article 1F of the 1951 Refugee Convention because because of serious criminality or human rights abuses. Specifically, the Federal Court of Appeal asked:

Considering the authority of the Refugee Protection Division under subsection 107(2) and section 107.1 of the Immigration and Refugee Protection Act to determine that a claim has no credible basis or is manifestly unfounded,

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In March 2014, a paper was prepared for the Admissibility Branch of Citizenship and Immigration Canada titled “Polygamy and Immigration.” Although it is now two years old, it is useful reading for anyone looking to familiarize themselves with this topic.

It was obtained through an Access to Information Act request, and I have embedded it below.

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In Chung v. Canada (Citizenship and Immigration), 2015 FC 1329, the Federal Court certified the following rather interesting question of general importance:

Does the Immigration Appeal Division of the Immigration and Refugee Board, in the exercise of its humanitarian jurisdiction, err in law in considering adverse to an appellant lack of remorse for an offence for which the appellant has pled not guilty but was convicted?

The issue of whether one should express remorse for a crime that they are adamant they did not commit frequently arises in the rehabilitation and humanitarian & compassionate context.  Applicants who have criminal records frequently deny guilt, even when convicted, and even including when they entered into a plea bargain (which is perhaps not surprising given the leverage that the state has during plea bargaining).

In Chung v. Canada (Citizenship and Immigration), 2015 FC 1329, the applicant argued that when an accused pleads not guilty, it is an error of law to consider lack of remorse as an aggravating factor for the purpose of sentencing, and that this principle should be extended to the immigration context.

Justice Russell disagreed, stating that in the immigration context, the lack of remorse and failure to take responsibility for past crimes goes to rehabilitation and the likelihood of reoffending, and that adjudicators can assume that where a court issues a “beyond a reasonable doubt” conviction that the events arose.

This was not completely satisfactory answer, especially in light of recently, well publicized incidents of how plea bargaining and biased systems work in certain jurisdiction.

The Federal Court of Appeal took the matter even further.

It found that while a criminal court may not treat a plea of not guilty and lack of remorse as an aggravating factor during sentencing as this would undercut the presumption of innocence,

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