Inferring a Lack of Credibility

Meurrens LawRefugees

One of the biggest issues in immigration law is credibility.

When a tribunal finds a lack of credibility based on inferences there must be a basis in the evidence to support the tribunal’s inferences. It is not open to tribunal members to base their decision on assumptions and speculations for which there is no real evidentiary basis.

In Jones v. Great Western Railway Co. (1930), 47 T.L.R. 39, the House of Lords (in a decision frequently cited by Canadian courts) noted that:

The dividing line between conjecture and inference is often a very difficult one to draw. A conjecture may be plausible but it is of no legal value, for its essence is that it is a mere guess. An inference in the legal sense, on the other hand, is a deduction from the evidence, and if it is a reasonable deduction it may have the validity of legal proof. The attribution of an occurrence to a cause is, I take it, always a matter of inference.

At the same time, as per the Federal Court of Canada decision in Giron v Canada (Minister of Employment and Immigration), credibility assessment is “the heartland of the discretion of triers of fact”, and in making its determination, the Immigration and Refugee Board is entitled to take into account the discrepancies, contradictions and omissions in the evidence and to view the evidence from the perspective of rationality and common sense.

Why Does Credibility Matter?

Credibility matters because a general finding of a lack of credibility on the part of an applicant may extend to all relevant evidence emanating from that individual’s testimony.

In the refugee context, for example, as claimant’s testimony may often be the only evidence linking the claimant to the alleged persecution and, in such cases, if the claimant is not found to be credible, there will be no credible or trustworthy evidence to support the claim.

Indicators of Credibility 

Important indicators of credibility include the consistency with which an individual has told a story, the plausibility of the evidence, and the individual’s demeanour and general reliability.

In each of these factors, while the Board cannot engage in microscopic analysis of an individual’s claim to find examples of credibility, it can point to such instances as examples of overall trends demonstrating a lack of credibility.

In terms of demeanour and general reliability, factors that courts consider in assessing the credibility of a witness can include:

  • desire to be truthful
  • their motives
  • general integrity
  • general intelligence
  • relationship or friendship to other parties
  • opportunity for exact observation
  • capacity to observe accurately
  • firmness of memory to carry in the mind the facts as observed
  • ability to resist the influence, frequently unconscious, to modify recollection
  • capacity to express what is clearly in the mind
  • ability to reproduce in the witness-box the facts observed
  • demeanour while testifying

Courts will give tribunals significant deference on all of these factors, as the aptitude to answer questions in an honest and clear manner, the coherence and the uniformity of the answers are subject to the appreciation of a trier of fact in respect of the credibility of an applicant.

Stages in a Credibility Assessment

As explained in visa officer training manuals, visa officers typically undergo several steps in assessing credibility.

The first step is to identify issues of credibility.  Here are some examples:

  • Contradictions or Inconsistency – it is reasonable to assume that an applicant who has experienced an event will be able to recount the central elements in a broadly consistent manner.  Someone who cannot remain consistent may not be believable.
  • Vague Statements – It is reasonable to assume, subject to mitigating circumstances, that an applicant relating an experience that occurred to them will be more expressive and include sensory details such as what they saw, heard, felt or thought about an event, than someone who has not had this experience. As such, the level of detail with which an applicant sets out his claims about the past and present may influence credibility.
  • Implausibilities – A plausibility assessment takes place when decision makers are giving consideration to applying the benefit of the doubt. It is not enough to simply say that the event could not have happened. Rather, a decision not to apply the benefit of the doubt to a materially claimed fact that is otherwise internally credible must be based on reasonably drawn, objectively justifiable, inferences.
  • External Credibility – Material factual claims should be consistent with generally known facts and country of origin information.  Objective country information that clearly contradicts the materially claimed fact will likely result in a negative credibility finding.

There can of course be mitigating factors to information that does not seem credible based on the above, such as mental or emotional trauma inarticulateness, fear, mistrust of authorities, feelings of shame, painful memories, low level of education, cultural issues and interpretation issues.

The second step, as discussed elsewhere on this blog, is to provide the individual with an opportunity to respond.

The third step is to assess the explanation.

Finally, even if someone is not credible, how material is it? In some cases, a negative credibility finding can be so material that it can result in a global lack of credibility.  In Sheikh v. Canada (Minister of Employment and Immigration), [1990] 3 F.C. 239, the Federal Court stated that a “general finding of a lack of credibility of the [claimant] may conceivably extend to all relevant evidence emanating from his testimony.

The following PDF is an example of this in practice.

Credibility Assessment