Last Updated on September 29, 2011 by Steven Meurrens

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.