3. Evidence and the decision-making process
Below is an overview of the process decision-makers typically follow when assessing evidence. The purpose of this section is to help the reader situate the critical step of assigning weight to the evidence within the broader decision-making process.
3.1 Before 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 IRB, the ultimate burden of proof lies with one of the parties to the proceeding. The burden of proof may be particularly important where, after all the evidence has been assessed and weighed, it is found to be evenly balanced in terms of either proving or disproving the case. In that situation, the party with the burden of proof has not established their case.
See Chapter 4 of this paper for a further discussion of burdens of proof.
3.1.2 Identify the issues
The process of assessing evidence begins before the hearing starts, in that the record before the panel should be analyzed for the purpose of identifying the issues in the case. The panel may also consider any evidence that is before them by agreement of the parties or clearly not controversial. If the admissibility of certain evidence is being or will likely be challenged, the panel may not wish to consider that evidence until the preliminary issue of admissibility has been determined. Of course, at this stage the identification of the issues is tentative, since the issues may change as more evidence is received prior to or during the hearing.
In identifying the issues, the relevant provisions of the IRPA and the Regulations should be considered. The evidence/record should then be examined to decide which specific issues are potentially determinative of the case before the panel. Generally, it is not helpful to define the issues in broad terms (e.g., “Is the claimant a Convention refugee or a person in need of protection?” or “Is the applicant a member of the family class?”). Instead, the issues should be framed in terms that are narrow enough to help the panel to decide what evidence is relevant to the decision that is to be made (e.g., “Does the claimant have an internal flight alternative?” or “Did the adoption of the applicant by the appellant create a genuine parent and child relationship?”). Having identified the potentially determinative issues, the panel is better able to focus the hearing on evidence that is more likely to be material to the case's outcome.
3.2 During the hearing
3.2.1 Determine admissibility
In a court, inadmissible evidence generally will not be marked as an exhibit or form part of the record of the proceedings. In addition, inadmissible parts of otherwise admissible evidence (e.g., a particular passage in a document) may be struck from the record.Footnote 14 Any evidence that is not admitted or is struck from the record will not be considered by the decision-maker in reaching their decision.
As discussed in the previous chapter, the Divisions of the IRB are not bound by any legal or technical rules of evidence.Footnote 15 Unlike a court of law, most evidence presented in IRB hearings is admitted, and any deficiencies in the evidence will go towards the weight the panel assigns to it. However, in some circumstances, it may be inappropriate to admit the evidence and discount its weight; instead, the panel should refuse to admit the evidence at all. This might be the case where, for example, the evidence is not relevant to the issues, the prejudicial effect of the evidence outweighs its probative value, the evidence is protected by privilege or a statutory confidentiality provision, the evidence is unduly repetitive, or the evidence fails to satisfy applicable legislative requirements for admissibility.
In Thanabalasingham,Footnote 16 the IAD found that evidence of alleged criminal conduct not leading to a conviction, including KGB statements, was admissible. 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 Canadian Police Information Centre record.Footnote 17 However, the panel recognized “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. Thus, it would not suffice to say that the evidence goes to ‘all the circumstances of the case'. The particular circumstance must be identified.”Footnote 18 Based on the facts of the case, the IAD found it was permissible for the respondent Minister to rely upon the evidence to substantiate the appellant's gang membership and activities.
In Fung,Footnote 19 the IAD admitted into evidence sworn statements and police reports that related to criminal charges that had been withdrawn. 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.”
In Balathavarajan,Footnote 20 which dealt with similar evidentiary records related to Tamil gang activities, the Federal Court of Appeal held that although such evidence can sometimes be tenuous and include information provided by informants, it is up to the IAD to decide the weight to be given to it.
As stated above, if evidence is clearly not relevant to the case, the panel may refuse to admit it. Evidence is relevant if it tends to prove the existence or non-existence of a fact in issue (i.e. it has at least some probative value).Footnote 21 When evidence is introduced, counsel should be able to explain how and to which issue it is relevant.
However, much like credibility, the relevance of evidence may not be entirely clear early in the proceeding. Furthermore, evidence which at first appears not to be relevant may turn out to be relevant in the context of the entire evidence presented. For these reasons, panels may choose to admit evidence without determining its relevance and assign appropriate weight to that evidence according to its relevance after the hearing. Evidence that is admitted but later found to lack any relevance may be given no weight.
Evidence may be credible 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 have no relevance to a refugee determination proceeding if the claimant had no connection to Country A or was a male from Country A whose claim was based on his race or ethnic background.
Relevance may depend on the determination of other issues. For example, the relevance of strong, credible evidence of a close parent-child relationship between the appellant and an adopted child may not be clear until the panel decides whether the adoption was in accordance with the laws of the place of adoption.
3.2.2 Begin to consider credibility
During a hearing, the panel should note factors relating to the credibility of the evidence, including each witness's demeanor and any inconsistencies or omissions concerning their evidence.Footnote 22 In non-adversarial proceedings, the panel may request explanations for such inconsistencies or omissions. In adversarial proceedings, the panel may ask the parties to explain issues concerning their evidence, or may leave it to the parties to decide whether or not to do so (keeping in mind that if the witness is not given an opportunity to explain an evidentiary issue, the panel may not be able to rely on that issue to make a negative credibility finding).
As explained previously, the panel may make a finding during a hearing that a witness's evidence is inadmissible due to a lack of credibility. However, in most cases, findings regarding credibility are made after the evidence is heard and go to weight.
3.3 After the hearing
3.3.1 Make findings on credibility
Typically, the panel will begin its post-hearing deliberations by determining whether each piece of evidence on the record is credible in light of all the evidence.
Where the credibility of evidence makes no difference to the outcome of the case, the panel may be able to assume without finding that such evidence is credible for the purpose of its analysis. For example, an RPD panel may be able to assume without finding that a claimant's allegations of persecution in their hometown are credible but reject the claim due to the availability of a safe and reasonable internal flight alternative. This is an expeditious way of proceeding and is legally permissible if the credibility of the allegations is immaterial to the panel's findings regarding the internal flight alternative.
3.3.2 Weigh the evidence
Weight will be assigned to the evidence according to its credibility and probative value.Footnote 23 In assigning weight, decision-makers may have regard to the various principles and factors discussed in this paper.
3.3.3 Make findings of fact
Once weight has been assigned to the evidence, the panel will make findings as to what facts have been proven. Findings of fact may include reasonable inferences drawn from the evidence. Unless specifically stated to be otherwise, in immigration and refugee matters, findings regarding alleged or disputed facts are made on a balance of probabilities.
3.3.3.1 Consider legal presumptions
In some circumstances, the law requires decision-makers to draw a particular conclusion in the absence of evidence to the contrary. This is called a rebuttable presumption.Footnote 24 For example, in refugee law, unless a state has completely broken down, it will be presumed to be able to protect its nationals. That presumption may be rebutted by clear and convincing evidence to the contrary.Footnote 25 When making findings based on the evidence, panels should consider whether the party with the burden of proof has provided sufficient evidence to counter any rebuttable legal presumptions that may apply in the circumstances and run contrary to their position.
In exceptional cases, a presumption is not rebuttable. For example, section 80 of the IRPA provides that a section 77 certificate that has been referred to a judge of the Federal Court and found to be reasonable under section 78 is conclusive proof that the foreign national or permanent resident named in it is inadmissible.
3.3.3.2 Consider giving the benefit of the doubt
The UNHCR Handbook on Procedures and Criteria for Determining Refugee StatusFootnote 26 suggests that the benefit of the doubt should be granted to refugee claimants 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. [Emphasis added.]
Courts have held that the benefit of the doubt principle applies in a limited number of circumstances where a claimant's testimony is consistent with the documentary evidence but there is little extrinsic evidence to back up their story.Footnote 27 In Chan,Footnote 28 the majority of the Supreme Court of Canada held it is not appropriate to apply the benefit of the doubt where the claimant's allegations run contrary to generally known facts or the available evidence.
3.3.4 Apply the standards of proof
Having made findings regarding the relevant facts, the panel will apply the appropriate standards of proof to determine the determinative issues. Generally, issues in immigration and refugee legal proceedings are decided on a balance of probabilities, or whether something is more likely than not. However, there are different standards for certain issues.
3.3.5 Render the decision
Finally, the panel will decide whether the party who bears the ultimate burden of proof has established all of the elements of their case and will render its decision.