4. Standard of proof and burden of proof
After the evidence has been assessed and weight assigned to it, the decision-maker determines what facts have been established on the balance of probabilities (i.e. are more likely than not to be true). They then apply the relevant rules of law to the facts as found to draw conclusions in law. In doing so, the decision-maker must apply the appropriate standard of proof for the legal issue to be decided and any applicable legal presumptions. In reaching a final decision in the matter, the decision-maker must consider which party carries the ultimate burden of proving their case.
The standards of proof for the legal issues and the ultimate burdens of proof differ in the four Divisions. However, in all four Divisions, on an application made by way of motion, the burden of proof lies with the party bringing the application.
4.1 Refugee Protection Division
In the RPD, the facts are applied to the definitions of Convention refugee and person in need of protection to determine whether the elements of the definitions have been established. A refugee claimant always has the burden of establishing their case on a balance of probabilities.Footnote 29
To meet the definition of Convention refugee under section 96 of the IRPA,a claimant must establish a subjective fear of persecution and that this fear is objectively well-founded. The objective legal test requires that claimants prove a “reasonable chance”, or a “serious possibility” of persecution on Convention grounds. In other words, while claimants must establish their case on a balance of probabilities, they do not have to establish that persecution would be more likely than not.Footnote 30 The Federal Court of Appeal has cautioned that the standard of proof must not be confused with the legal test.Footnote 31
To meet the definition of person in need of protection under subsection 97(1) of the IRPA,a claimant must establish a danger of torture believed on substantial grounds to exist, a risk to life, or a risk of cruel and unusual treatment or punishment. The standard of proof applicable to these definitions is “on a balance of probabilities.”Footnote 32 That is to say, the requisite degree of danger of torture envisaged by the expression “believed on substantial grounds to exist” in subsection 97(1)(a) is more likely than not. Similarly, the degree of risk to life or risk of cruel or unusual treatment or punishment under subsection 97(1)(b) must be proven to be more likely than not.Footnote 33
The standard of proof for a finding that a claim is manifestly unfounded under section 107.1 of IRPA is on a balance of probabilities.Footnote 34
Where Article 1F of the Convention is applied, the standard of proof is “serious reasons for considering,” which is less than the balance of probabilities.Footnote 35
In a refugee protection claim, the ultimate burden of proof rests with the claimant, that is, it is their responsibility to establish their claim. However, where the Minister is alleging that the claimant is excluded from the definitions of Convention refugee and person in need of protection through application of Article 1E or 1F,Footnote 36 the burden of proof lies with the Minister.Footnote 37 Further, where the Minister applies to have a refugee protection determination vacated,Footnote 38 or seeks a determination that the person has ceased to be a Convention refugee or a person in need of protection,Footnote 39 the burden of proof lies with the Minister.Footnote 40
4.2 Refugee Appeal Division
In an appeal of an RPD decision, the RAD must, after carefully considering the RPD decision, carry out an independent assessment of the record to determine whether the RPD erred.Footnote 41 Having done this, the RAD is to provide a final determination, either by confirming the RPD decision or setting it aside and substituting its own determination of the merits of the refugee claim. It is only when the RAD is of the opinion that it cannot provide such a final determination without hearing the oral evidence presented to the RPD that the matter can be referred back to the RPD for redetermination.Footnote 42
The burden is on the appellant to establish that the RPD erred in a way that justifies the intervention of the RAD.Footnote 43 The Refugee Appeal Division Rules (RAD Rules)Footnote 44 place the onus on the appellant to identify in their submissions to the RAD the errors that form the grounds of the appeal, in addition to the location of the errors in the RPD's decision.
The same standards of proof applicable before the RPD apply to proceedings before the RAD.Footnote 45
4.3 Immigration Division
In the ID, the panel will determine whether the elements of the allegation have been established based on its findings of fact. The applicable standard of proof is a balance of probabilities, except where another standard is prescribed by the IRPA. For example, section 33 specifies that the standard of proof for facts that constitute inadmissibility under sections 34-37 is “reasonable grounds to believe” unless otherwise provided. The “reasonable grounds to believe” standard requires something more than mere suspicion, but less than the standard applicable in civil matters (i.e. proof on the balance of probabilities).Footnote 46 Reasonable grounds will exist where there is an objective basis for the belief supported by compelling and credible information.Footnote 47 Subsection 36(3)(d) specifies that the standard of proof for inadmissibility for serious criminality outside Canada pursuant to subsection 36(1)(c) is the balance of probabilities.
The standard of proof applicable to detention review hearings is a balance of probabilities, unless otherwise specified in the statute.
The burden of proof at an admissibility hearing is always on the Minister.Footnote 48 Pursuant to subsection 45(d) of the IRPA, the ID will make the applicable removal order against a foreign national who is not authorized to enter Canada if it is not satisfied that the person is not inadmissible, or against a foreign national who is authorized to enter Canada or a permanent resident if it is satisfied that the person is inadmissible.
In detention reviews, the Minister bears the burden of establishing, on a balance of probabilities, that there are grounds for detention. The burden remains on the Minister to establish, in light of the criteria in section 248 of the Regulations, that detention is warranted. This burden rests on the Minister throughout the detention review and resurfaces every 30 days.Footnote 49 If the evidence establishes a ground for detention under the IRPA and suggests that detention is justified under section 248 of the Regulations, it may be in a detainee's interest to introduce evidence in favour of release. This is not a shifting of the legal burden. It is, rather, descriptive of the tactical decision whether to lead evidence to prevent a potentially unfavourable outcome.Footnote 50
4.4 Immigration Appeal Division
In the IAD, the panel must determine whether the necessary elements of the issues in the appellant's case have been established by the facts as found. The standard of proof varies according to the legal issue before the panel. As in the ID, some provisions of the IRPA specify the applicable standard of proof.Footnote 51
Generally, the burden of proof before the IAD rests with the appellant in sponsorship appeals under subsection 63(1),Footnote 52 residency obligation appeals under subsection 63(4), and assessments of humanitarian and compassionate considerations under subsection 67(1).Footnote 53 In a removal order appeal, where the underlying removal order was made by the ID under subsection 45(d) and the subject of the section 44 report is a permanent resident of Canada, the burden of proof lies on the Minister to establish that the appellant is inadmissible.Footnote 54