Weighing Evidence - Chapter 3: Assessing Evidence


3.1.  Before/During the Hearing:


3.1.1.  Determine which party has the Burden of Proof

In every matter that comes before any of the Divisions of the Board the ultimate burden of proof lies with one of the parties to the process. The party with the burden of proof varies depending on the nature of the proceedings. For example, in a sponsorship appeal, the burden of proof lies with the sponsor; and in a claim for refugee protection the burden is on the claimant. With respect to admissibility hearings, foreign nationals who have not been authorized to enter Canada bear the burden of proving they are not inadmissible and the Minister bears the burden of proof in the case of foreign nationals who have been authorized to enter Canada or in the case of permanent residents. In the adversarial proceedings before the Immigration Division and the Immigration Appeal Division it is up to the party with the burden of proof to lead enough credible and trustworthy evidence to establish their case. Once that has been done, in adversarial proceedings, the burden of producing evidence shifts to the other party. However the ultimate burden of proving their case remains the same. The burden comes into play where, after all the evidence has been assessed and weighed, it is evenly balanced in terms of either proving or disproving the case. In that situation the person with the burden of proof has not established their case.

In the absence of exclusion issues or the participation of the Minister, hearings before the Refugee Protection Division are normally not adversarial. Proceedings in the Refugee Protection Division are governed by Guideline 7 issued by the Chairperson of the Board pursuant to subsection 159(1)(h) of the Immigration and Refugee Protection Act.Note 1

The Guideline points out that the role of a member of the Refugee Protection Division is different from that of a judge. A judge's primary role is to consider the evidence and arguments that the parties choose to present while a Refugee Protection Division member has an inquisitorial role, which requires that the decision maker take an active role in the hearing. Under the Immigration and Refugee Protection Act, Refugee Protection Division members have the same powers as commissioners who are appointed under the Inquiries Act.Note 2 They may inquire into anything they consider relevant to establishing whether a claim is well-founded.Note 3 Case lawNote 4 has clearly established that the Refugee Protection Division has control over its' own procedures, including who will start the questioning. The members have to be involved to make the Division's inquiry process work properly.

In a claim for refugee protection, the standard practice will be for the Refugee Protection Officer (RPO) to start questioning the claimant. If there is no RPO participating in the hearing, the member will begin, followed by counsel for the claimant. Beginning the hearing in this way allows the claimant to quickly understand what evidence the member needs from the claimant​ in order for the claimant to prove his or her case. (emphasis added).Note 5

3.1.2.  Define the issues

The process of assessing evidence begins before the hearing starts, in that the recordNote 6 before the decision-maker should be analyzed for the purpose of identifying the issues in the case. The decision-maker may also consider any evidence that is non-controversial or before them by agreement of the parties. If the admissibility of certain evidence is being, or likely to be, challenged, the decision-maker may not wish to consider that evidence, until the preliminary issue of admissibility has been determined. Of course, at this stage the determination of the issues is tentative, since the issues may change as more evidence is received during the hearing, or during the preliminary procedures leading to the hearing.

In determining the issues, the relevant provisions of the Immigration and Refugee Protection Act and Regulations should be examined and the relevant provisions identified.Note 7 The evidence/record should then be examined to decide which specific issues are relevant to the particular case before the decision-maker. The issues should be defined narrowly. It is not helpful to define the issues in broad terms, such as, "is the claimant a Convention refugee or a person in need of protection?" or "is the applicant a member of the family class?" or " is the subject of the admissibility hearing admissible?" The issues should be framed in terms that are narrow enough to help the decision-maker to decide what evidence is relevant to the decision that is to be made.Note 8

Having identified the issues, the decision-maker is then better able to focus the hearing process, by restricting the evidence to that which is relevant to the issues in the case.Note 9

3.2.  During the Hearing:

3.2.1.  Admissibility

In the courts, evidence may not be admitted into the record, if it is excluded by the Rules of Evidence. When evidence is not admitted, it is generally not physically accepted by the decision-maker for entry into the record of the proceedings, and it is not marked as an exhibit. However, parts of the evidence may be struck from the record (e.g. a passage from a document that is otherwise admitted).Note 10 Any evidence that is struck from the record or not admitted into evidence shall not be considered by the decision-maker in reaching their decision.

Unlike a court of law, most evidence presented in Board hearings is admitted into evidence, and any deficiencies in the evidence go towards the weight the decision-maker assigns to the evidence. However, in some cases it is not appropriate to admit the evidence and give it little or no weight, instead the panel should refuse to admit the evidence at all. This may arise, for example, where the evidence is not relevant to the issues in the case; or where the prejudicial effect of the evidence outweighs its probative value; or where the evidence is protected by privilege or statutory protection of its confidentiality, or where the evidence is unduly repetitive.

In a recent case, the Immigration Appeal Division ruled that evidence of alleged criminal conduct not leading to a conviction, including KGB statements, could properly be admitted into evidence.Note 11 The IAD considered the potential prejudice to the appellant of admitting evidence suggestive of criminal activity. The panel stated that it would be unfair to augment the appellant's criminal record by attempting to show on a balance of probabilities that the appellant is guilty of more offences than those on his CPIC and thus, as in BertoldNote 12 and BakchievNote 13 the evidence would not be admissible for that purpose. However, the same evidence may be relevant to another issue in dispute. If the issue is peripheral to what needs to be determined, it is likely that the prejudicial effect of admitting such evidence would exceed its probative value. It would not suffice to say that the evidence goes to "all the circumstances of the case": the particular circumstance must be identified. In this case, it was permissible for the respondent Minister to assert that the appellant was or had been a gang member.

In FungNote 14, the IAD admitted into evidence material which referred to incidents in which criminal charges had been withdrawn. The documents consisted of sworn statements and police reports. While they did not carry the same weight as documents relating to incidents leading to convictions, they were relevant to the "circumstances of the case".

3.2.1.1  Relevance

The panel may refuse to admit into evidence, evidence which is clearly not relevant to the issues in the proceedings.Note 15 If there is some doubt as to the relevance of the evidence, it is preferable to admit the evidence, and then determine the appropriate weight to be assigned to that evidence later.

Evidence is relevant if it tends to prove the existence or non-existence of a fact in issue. If evidence is clearly not relevant to the case, the decision-maker may refuse to admit the evidence, otherwise it may be admitted and the appropriate weight given to the evidence later. If the evidence is later found not to be relevant, it may be given no weight. When evidence is introduced, counsel should be able to explain how the evidence is relevant and to which issue.

The relevance of the evidence should be assessed in the context of the issues identified and the other evidence presented. Evidence which at first appears to be irrelevant, may turn out to be relevant in the context of the entire evidence presented. Care should be taken in rejecting evidence as not relevant.

Evidence may be credible and trustworthy, but not relevant. For example, evidence regarding the lack of police protection for women who face abuse from their spouses in Country A may come from a very reputable source, but would still have no relevance if the claimant had no status or connections to Country A, or was a male from Country A whose claim was based on his race or ethnic background.

Sometimes the relevance of evidence is not initially clear, because it depends on the decision-maker's determination of other issues. For example, strong, credible evidence of a close parent-child relationship between the appellant and an adopted child whose adoption took place when the child was over 18 years old may not be relevant if the panel decides that the adoption was not in accordance with the laws of the place of adoption. However, this issue may not be determined until after the hearing is completed, in which case, the panel should hear the evidence regarding the other issues as well, and sort it out when preparing to render the decision, whether orally or in writing.

3.2.1.2  Other

The Board should not refuse to receive in evidence an affidavit merely because it does not meet the requirements of Part III of the Canada Evidence Act which governs the taking of affidavits abroad.Note 16

The Board accepted as evidence pursuant to s. 65(2)(c) of the Immigration Act, a photocopy of a judgment of an Indian court although the photocopy would not be accepted as evidence pursuant to s. 23 of the Canada Evidence Act.Note 17

The Appeal Division did not err in refusing to admit the affidavit of a former colleague which raised a reasonable apprehension of bias, because he had recently left the Board.Note 18

3.2.2.  CredibilityNote 19

During the hearing, the decision-maker should note the demeanour of the witnesses, and may request explanations for inconsistencies in their testimony. Or, in adversarial proceedings,Note 20 the decision-maker may ask the parties to clarify inconsistencies, or may leave it to the parties to decide whether or not to do so. In either case, the decision-maker should make a note of inconsistencies and any explanations provided for those inconsistencies. Please note that if the witness is not allowed to explain an inconsistency, the decision-maker may not be able to rely on the inconsistency to make a negative credibility finding. Please refer to Legal Services' paper: Assessment of Credibility in Claims for Refugee Protection (June 28, 2002).

The Immigration and Refugee Protection Act allows all three Divisions of the IRB to receive evidence that is credible or trustworthy. Although in theory this would allow witness testimony to be ruled inadmissible in a hearing for lack of credibility, in practice, even judgments that testimony is entirely without credibility are normally made after the close of evidence. One reason for this is that the testimony can then be assessed based on the totality of the evidence, before a final determination regarding credibility is made.

3.3.  After the Hearing of Evidence and Submissions is Complete:

3.3.1.  Assess Credibility

The first matter the decision-maker must decide is what evidence is believable. This evidence will form the basis for subsequent findings. Reference may be made to the paper entitled "Assessment of Credibility in claims for Refugee Protection," prepared by IRB Legal Services. While this latter paper was prepared for the RPD, it contains basic principles which are applicable to all three Divisions.

Where the finding of credibility makes no difference to the outcome of the case, it is possible for the decision-maker to assume that the evidence/witness is credible for the purpose of their analysis, without making a finding that the evidence/witness is credible.

For example, the decision-maker may have doubts about the credibility of a refugee protection claimant. However, the claimant has dual nationality including citizenship in the United States, and is not making a claim against the United States. In such a case, the decision-maker may state that they "assume, without so finding, that the claimant is credible" and find that the claimant is not a Convention refugee or a person in need of protection because they have not established a claim against the United States. Assuming credibility is to the advantage of the claimant, and will not give rise to judicial review. If the decision on dual nationality is overturned, then credibility is still a "live" issue. This is a legally acceptable, and expeditious way to proceed in certain areas.

3.3.2.  Reliability

Next the decision-maker assesses the reliability of the evidence that was found to be believable. For example, the decision-maker may believe a witness is being truthful, however, due to other factors (lack of first-hand knowledge, lighting, intoxication, etc.) the witness's statements may not have been very accurate, and thus could be given limited weight, depending on the other evidence presented in the case.

Special considerations arise depending on the nature of the evidence being assessed. The different types of evidence, and the caselaw and factors to consider in weighing that evidence are dealt with in detail in Chapter 6 of this paper.

3.3.3.  Apply the Standard of Proof

Unless specifically stated to be otherwise, in civil matters, the standard of proof is that of a balance of probabilities (as opposed to the higher criminal standard of "beyond a reasonable doubt.").

In weighing conflicting evidence, this standard is applied to determine what facts are established by the evidence. While this standard is applied to determine the facts of the case, a different standard of proof may apply in resolving the legal issues in the case. Please refer to Chapter 7 for a more detailed discussion of standards of proof.

3.3.4.  Determine the Facts that have been established by the evidence as weighed

The decision-maker next makes their findings concerning the facts established by the evidence. It is important to make clear findings of fact, as it is these facts on which the rest of the decision will be based. There may also be some facts that have been agreed to by the parties.

A finding of fact is a determination, from the evidence, of what the facts of the case are, where there is conflicting evidence or allegations. Findings of fact may include reasonable inferences drawn from the evidence. A finding of fact does not involve the application of "legal judgment".Note 21 On the other hand, a finding or conclusion of law involves the application of rules of law to the facts as found by the decision-maker.Note 22

Once reliability has been assessed, it is possible to form an appreciation of the evidence with regard to a group of related facts. In such an appreciation, the testimony of two witnesses given little weight because of self-serving bias, and an expert who has founded his opinion on the facts as related by a witness found not credible on some of those facts, can be outweighed by a solid assertion in a document produced by a neutral source.

3.3.4.1.  Benefit of the Doubt before the RPD

With regard to hearings before the RPD, Part Two, section B, of the UNHCRHandbook on Procedures and Criteria for Determining Refugee StatusNote 23 should be considered. In particular, paragraphs 203 and 204 provides that the benefit of the doubt should be granted to the claimant in certain circumstances:

203. After the applicant has made a genuine effort to substantiate his story there may still be a lack of evidence for some of his statements. As explained above (paragraph 196), it is hardly possible for a refugee to "prove" every part of his case and, indeed, if this were a requirement the majority of refugees would not be recognized. It is therefore frequently necessary to give the applicant the benefit of the doubt.

204. The benefit of the doubt should, however, only be given when all available evidence has been obtained and checked and when the examiner is satisfied as to the applicant's general credibility. The applicant's statements must be coherent and plausible, and must not run counter to generally known facts.

The majority of the Supreme Court of Canada in ChanNote 24 held that it is not appropriate to apply the benefit of the doubt where the claimant's allegations run contrary to generally known facts, and the available evidence.

3.3.5.  Identify the appropriate Standard of Proof for each legal issue

Generally, the standard of proof is that of a balance of probabilities, or whether something is more likely than not. However, for certain issues, in all three Divisions, there is a different standard.

In the RPD, the standard is particularized for several issues. For example, well-founded fear of persecution must be proved to the level of "serious possibility" or "reasonable grounds", which is less than "more likely than not." Inability of the state to protect must be proved by "clear and convincing" evidence; the contrary is normally presumed to exist. The requirement of "serious reasons for considering" an Article 1F exclusion in the RPD need only be proved to a level below a balance of probabilities.

Similarly, when the Immigration and Immigration Appeal Divisions determine admissibility, the standard of proof can vary from a "balance of probabilities" to "believed on reasonable grounds", which is less than a balance of probabilities.

Please refer to Chapter 7 for a more detailed analysis of the standard of proof.

3.3.6.  Apply the facts and standards of proof to the issues of the case

The facts should now be analyzed to determine the resolution of the issues of the case. Not all of the issues in the case need be considered, only those that are determinative of the matter before the decision-maker.

3.3.6.1.  Presumptions

An appreciation of related facts may be affected by a rule of law that requires or allows a fact to be inferred from related facts - a presumption.

For example, states are presumed to be able to protect their nationals, absent clear and convincing evidence to the contrary. Thus, in the absence of evidence regarding state protection, it may be presumed that the state is capable of protecting a claimant. In order to overcome that presumption, the claimant must present clear and convincing evidence.

As can be seen from the above example, presumptions generally act in absence of evidence contrary to the presumption. Thus credible and reliable evidence may overcome a presumption.

However, in exceptional cases, a presumption is not rebuttable. See, for example, subsection 81(a), which provides that a section 77 certificate that has been referred to a judge of the Federal Court and found to be reasonable under subsection 80(1), is conclusive proof that the foreign national or permanent resident named in it is inadmissible.

3.3.7.  Render the Decision

Has the party who bears the ultimate burden of proof, established all of the material issues of the case?

Table of Cases

  1. Bakchiev v. M.C.I., [2000] F.C.J.no. 1881
  2. Bertold v. M.C.I., [1999] F.C.J.no. 1492
  3. Chan v. M.E.I. [1995] 3 S.C.R. 593
  4. Dhesi, Bhupinder Kaur v. M.E.I. (F.C.A., no. 84-A-342), Mahoney, Ryan, Hugessen, November 30, 1984
  5. Drummond, Patsy v. M.C.I. (F.C.T.D., no. A-771-92), Rothstein, April 11, 1996
  6. Fung, Ian v. M.C.I. (IAD T99-08522), Wales, May 10, 2001
  7. Prassad v. Canada (Minister of Manpower and Immigration), [1989] 1 S.C.R. 560
  8. Rezaei, Iraj v. M.C.I. (F.C.T.D.no. IMM-1367-02), Beaudry, December 5, 2002
  9. Sandhu, Bachhitar Singh v. M.E.I. (I.A.B. T86-10112), Eglington, Goodspeed, Chu, February 4, 1988
  10. Thanabalasingham, Kaileshan v. M.C.I. (IAD TA2-04078), Sangmuah, August 29, 2003
  11. Yushchuk, Anna v. M.E.I. (F.C.T.D., no. IMM-4773-93), Nadon, September 9, 1994

Notes

Note 1

"Concerning Preparation and Conduct of a Hearing in the Refugee Protection Division", Immigration and Refugee Board, Ottawa, Canada, December 1, 2003.

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Note 2

Immigration and Refugee Protection Act, s. 65.

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Note 3

Ibid., s. 170(a).

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Note 4

Rezaei, Iraj v. M.C.I. (F.C.T.D.no. IMM-1367-02), Beaudry, December 5, 2002 , which refers to the powers of administrative tribunals according to Prassad v. Canada (Minister of Manpower and Immigration), [1989] 1 S.C.R. 560.

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Note 5

Supra, footnote 1, paragraph 19. In exceptional circumstances, for example in the case of a severely disturbed claimant or a very young child, the member may vary the order of questioning, and allow counsel for the claimant to question first. See paragraph 23 of the Guideline.

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Note 6

For example, at an admissibility hearing the record would consist of the inadmissibility report and the Minister's referral; before the IAD the record prepared pursuant to the IAD Rules; and before the RPD the record consists of the referral by an Officer, and the Personal Information Form.

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Note 7

In the case of the Refugee Protection Division, Guideline 7 emphasizes the importance of case preparation. Supra, footnote 1, paragraphs 1-6.

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Note 8

For example, "does the claimant have an Internal Flight Alternative (IFA) in India, outside the Punjab or "did the adoption of the applicant by the appellant create a genuine parent-child relationship?"

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Note 9

For example, in the examples above: evidence relating to IFA; or to parent-child relationship.

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Note 10

The passage may be physically "blacked out" or crossed out, or the presiding member may simply state for the record that the passage is being struck.

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Note 11

Thanabalasingham, Kaileshan v. M.C.I. (IAD TA2-04078), Sangmuah, August 29, 2003.

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Note 12

Bertold v. M.C.I. [1999] F.C.J.no. 1492.

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Note 13

Bakchiev v. M.C.I., [2000] F.C.J.no. 1881.

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Note 14

Fung, Ian v. M.C.I. (IAD T99-08522), Wales, May 10, 2001.

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Note 15

Yushchuk, Anna v. M.E.I. (F.C.T.D., no. IMM-4773-93), Nadon, September 9, 1994.

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Note 16

Dhesi, Bhupinder Kaur v. M.E.I. (F.C.A., no. 84-A-342), Mahoney, Ryan, Hugessen, November 30, 1984.

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Note 17

Sandhu, Bachhitar Singh v. M.E.I. (I.A.B. T86-10112), Eglington, Goodspeed, Chu, February 4, 1988.

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Note 18

Drummond, Patsy v. M.C.I. (F.C.T.D., no. A-771-92), Rothstein, April 11, 1996.

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Note 19

Please refer to Legal Services' paper: Assessment of Credibility in Claims for Refugee Protection (June 28, 2002) for a comprehensive discussion of this topic.

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Note 20

Hearings held in the Immigration and Immigration Appeal Divisons are adversarial in nature. Hearings before the Refugee Protection Division, in which the Minister participates, are adversarial in nature.

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Note 21

See the definition of "finding of fact" in Black's Law Dictionary, 6 ed., (St. Paul: West Publishing Co., 1990).

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Note 22

See the definition of "conclusion of law" in Black's Law Dictionary, supra, footnote 21.

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Note 23

Geneva, January 1992.

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Note 24

Chan v. M.E.I. [1995] 3 S.C.R. 593.

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