One issue that applicants, and in particular refugee claimants, face is that their stories often sound implausible to third party observers.
Valtchev v Canada (Minister of Citizenship and Immigration), 2001 FCT 776 is the leading decision on implausibility findings in the refugee context. There, Justice Muldoon stated:
A tribunal may make adverse findings of credibility based on the implausibility of an applicant’s story provided the inferences drawn can be reasonably said to exist. However, plausibility findings should be made only in the clearest of cases, i.e., if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant. A tribunal must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant’s milieu.
In Leung v. M.E.I. (1994), 81 F.T.R. 303 (T.D.), Associate Chief Justice Jerome stated at page 307:
Nevertheless, the Board is under a very clear duty to justify its credibility findings with specific and clear reference to the evidence.
This duty becomes particularly important in cases such as this one where the Board has based its non-credibility finding on perceived “implausibilities” in the claimants’ stories rather than on internal inconsistencies and contradictions in their narratives or their demeanour while testifying. Findings of implausibility are inherently subjective assessments which are largely dependant on the individual Board member’s perceptions of what constitutes rational behaviour. The appropriateness of a particular finding can therefore only be assessed if the Board’s decision clearly identifies all of the facts which form the basis for their conclusions. The Board will therefore err when it fails to refer to relevant evidence which could potentially refute their conclusions of implausibility [emphasis added].
Hence, a tribunal is entitled to make reasonable findings based on implausibilities, common sense and rationality. The Federal Court of Canada have been clear that the Immigration and Refugee Board is entitled in assessing credibility to rely on criteria such as rationality and common sense. In order to find an applicant’s or claimant’s story to be implausible, it must be clearly out of line with known facts or known norms of behavior.
Of course, it is not sufficient for a tribunal to simply state that a claimant’s story is “implausible” without explaining further the reasoning behind that finding. In other words, as the Federal Court ruled in Vodics v Canada (Minister of Citizenship and Immigration), 2005 FC 783, adverse findings of credibility must be based on reasonably drawn inferences and not conjecture or mere speculation. Considerable caution is required when assessing the norms and patterns of different cultures and the practices and procedures of different police, political, and social systems. As Lorne Waldman described in Waldman, Immigration Law and Practice (Markham, ON: Butterworths, 1992):
A tribunal may make adverse findings of credibility based on the implausibility of an applicant’s story provided the inferences drawn can be reasonably said to exist. However, plausibility findings should be made only in the clearest of cases, i.e., if the facts as presented are outside the realm of what could reasonably be expected, or where the documentary evidence demonstrates that the events could not have happened in the manner asserted by the claimant. A tribunal must be careful when rendering a decision based on a lack of plausibility because refugee claimants come from diverse cultures, and actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant’s milieu.
Counsel appearing before Justice Annis should note that in Kallab v. Canada (Citizenship and Immigration), 2019 FC 706 Justice Annis determined that Valtchev is no longer good law. As far as I can tell, Justice Annis is unique in this position. Justice McHaffie noted this in George v. Canada (Citizenship and Immigration), 2019 FC 1385, when he wrote:
In reaching this conclusion, I need not rely on the observation in Valtchev that plausibility findings should only be made in the “clearest of cases”: Valtchev at para 7; Liu v Canada (Citizenship and Immigration), 2018 FC 1027 at para 19. That observation—which I recognize has been questioned in Kallab v Canada (Citizenship and Immigration), 2019 FC 706, but which nonetheless appears to reflect the preponderance of the jurisprudence of this Court—would simply reinforce the conclusion.