Last Updated on February 15, 2021 by Steven Meurrens
The Federal Court decision in Calderon Garcia v. Canada (Citizenship and Immigration), 2012 FC 412 sets out the legal principles regarding a delay in claiming asylum. It states:
The Applicants assert that the Board erred in rejecting their claim based solely on the delay in claiming and a lack of supporting documentation. However, this position is not supported by the Board’s decision or related jurisprudence.
Delay in making a refugee claim “is not a decisive factor in itself” but it is a “relevant element which the tribunal may take into account in assessing both the statements and the actions and deeds of a claimant” (Huerta v Canada (Minister of Employment and Immigration) (1993), 157 NR 225,  FCJ no 271 (CA)). It is reasonable to expect that the Applicants would make a claim at the first possible opportunity (see Jeune v Canada (Minister of Citizenship and Immigration), 2009 FC 835,  FCJ no 965 at para 15).
Recent jurisprudence also suggests that while the delay itself is not determinative, it “may, in the right circumstances, constitute sufficient grounds upon which to dismiss a claim” (Duarte v Canada (Minister of Citizenship and Immigration), 2003 FC 988,  FCJ no 1259 at para 14). Absent a satisfactory explanation for the delay, it “can be fatal to such claim, even where the credibility of an applicant’s claims has not otherwise been challenged” (Velez v Canada (Minister of Citizenship and Immigration), 2010 FC 923,  FCJ no 1138 at para 28).
While the Board implied that the nineteen month delay in this instance would be fatal to the claims, it proceeded to raise several other issues associated with the Applicants’ credibility, notably evasive testimony and the lack of corroborating documents. It is evident from the remainder of the decision that the delay was a significant factor, but hardly the only basis for the negative credibility findings. The Board stressed that there were “cumulative reasons” for its conclusions regarding the Applicants.
As a consequence, the Applicants’ reference to Juan v Canada (Minister of Citizenship and Immigration), 2006 FC 809,  FCJ no 1022 at para 11 is of limited assistance. In that case, Justice Eleanor Dawson faulted the Board because its “finding with respect to delay is, by itself, an insufficient basis for maintaining its denial of the claim.” In contrast, the Board’s issue with the Applicants’ story was the delay in conjunction with other relevant factors. In addition, more recent jurisprudence referred to above, suggests there are certain circumstances when the delay would be fatal to the claim.