Last updated on March 25th, 2021
Last Updated on March 25, 2021 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.
Relevant Documents Must be Considered or Mentioned
Federal Court of Canada 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.
As the Federal Court of Appeal noted in Stelco Inc. v. British Steel Canada Inc. a tribunal must explain its conclusion on those issues that are of central importance to the decision. It is not necessary, however, for tribunals to quote from the evidence in its reasons. In Gourenko v. Canada (Minister of Citizenship and Immigration), the Court established the criteria of whether a piece of evidence is relevant to an important matter. The Court stated:
In my view, a document need only be mentioned in a decision if, first of all, the document is timely, in the sense that it bears on the relevant time period. Secondly, it must be prepared by a reputable, independent author who is in a position to be the most reliable source of information. Thirdly, it seems to me that the topic addressed in the document must be directly relevant to the applicant’s claim. For example, documents sent to or received by a claimant, or prepared for a claimant, or about a claimant, which bear on relevant issues would, in the ordinary course be mentioned in reasons. In addition, if a document is directly relevant to the facts alleged by an applicant, one would expect to see that document addressed in the Refugee Division’s reasons.
Tribunals cannot selectively refer to evidence that supports their conclusions without also referring to evidence to the contrary.
For example, as demonstrated in Orgona v. Canada (Citizenship and Immigration), 2012 FC 1438 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.
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.
With the above in mond, a tribunal is presumed to have taken all of the evidence into consideration whether or not the tribunal indicates that it did so in its written reasons. Even decisions that include “boilerplate” reasons or assertions may not be sufficient to prevent this inference. Therefore, the mere fact that a tribunal fails to refer to all of the evidence when rendering its decision does not necessarily signify that the tribunal ignored evidence, if a review of the reasons suggests that the tribunal did consider the totality of the material before it
However, tribunals generally must mention evidence that contradict their decisions. In Mahanandan v. Canada (Minister of Employment and Immigration), (1994), 49 A.C.W.S. (3d) 1292,  F.C.J. No. 1181, the Federal Court of Appeal wrote:
Where, as here, documentary evidence of the kind in issue here is received in evidence at a hearing which could conceivably affect the Board’s appreciation of an Appellant’s claim to be a Convention refugee, it seems to us that the Board is required to go beyond a bare acknowledgment of its having been received and to indicate, in its reasons, the impact, if any, that such evidence had upon the Applicant’s claim. As I have already said, the Board failed to do so in this case. This, in our view was a fatal omission, as a result of which the decision cannot stand.
Cepeda-Gutierrez v. Canada (Citizenship and Immigration), one of the most frequently cited immigration decisions, reiterates this principle, and generally stands for the proposition that the more relevant the evidence, the more likely the Federal Court will find an error if it is omitted from the analysis. The Court stateD:
…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.
Not Including Evidence
Conversely, an applicant omits evidence at their peril. In Pu v. Canada (Citizenship and Immigration), 2018 FC 600 for example, an applicant testified that China does not allow dual citizenship. The Immigration Appeal Division gave this no weight because there was no documentary evidence. Justice Diner agreed, stating:
Although I have sympathy for the Applicant’s arguments, the IAD rightly noted that foreign law is a question of fact, citing Canada (Minister of Citizenship and Immigration) v Saini, 2001 FCA 311 (at para 26). The Applicant had a number of years to prepare for her appeal and was represented by counsel before the IAD — albeit, not the same counsel she had on this application. Appreciating that this was an important point for her case, she chose to rely solely on her own testimony at her own peril.