After the evidence has been assessed and weight assigned to it, and it has been determined which evidence is more reliable, the panel determines what facts have been established on the balance of probabilities (more likely than not). The decision-maker then applies the relevant rules of law to 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,Note 1 and any applicable legal presumptions.Note 2 Finally, in reaching a final decision in the matter, the decision-maker must consider which party carries the ultimate burden of proving their case.Note 3
The standards of proof for the legal issues and the ultimate burdens of proof differ in the three Divisions. However, in all three Divisions, on an application made by way of motion, the burden of proof lies with the party bringing the application. For example in an application for confidentiality of the proceedingsNote 4 the ultimate burden of proof lies with the applicant, and the standard of proof, for meeting the legal test for closing a hearing, is identical for all three Divisions.
7.1. REFUGEE PROTECTION DIVISION (RPD)
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.
It must be determined that the evidence shows that it is more likely than not that each element exists, other than the element of the risk of the harm feared. With respect to the objective basis of the fear of persecution in the Convention refugee definition, a lower test is applied: "a reasonable chance" or a "serious possibility" of persecution ...Note 5
With respect to the standard of proof for the danger of torture ground in subsection 97(1)(a) of the Immigration and Refugee Protection Act and the risk to life or cruel and unusual treatment or punishment ground in subsection 97(1)(b) of the Act, the preferred position of Legal Services is that the Adjei test is the appropriate standard.Note 6
The standard of proof of a "serious possibility" was applied to the danger of torture ground in subsection 97(1)(a) of the Immigration and Refugee Protection Act by the Refugee Protection Division in a case involving a Guinean claimant.Note 7
There is conflicting jurisprudence in the Federal Court as to the correct standard of proof to be applied to subsections 97(1)(a) and 97(1)(b) of the Immigration and Refugee Protection Act.
In ThangasivamNote 8 the Court opined that the standard of proof in both subsections 97(1)(a) and 97(1)(b) of the Act equates to a "balance of probabilities".
In TamehNote 9, the Court found that the Refugee Protection Division had applied the correct standard of proof, that is "serious possibility" as set out in Adjei, to the question of whether the claimant feared persecution at the hands of the Iranian regime or faced a risk to his life. At issue was the correct standard of proof as regards to whether the applicant was a person in need of protection.
In LiNote 10 the Court held that "pursuant to subsection 97(1) of the Act, there must be persuasive evidence (i.e. balance of probabilities) establishing the facts on which a claimant relies to say that he or she faces a substantial danger of being tortured upon his or her return. Second, the danger or risk must be such that is more likely than not that he or she would be tortured or subjected to other cruel and other degrading treatments". The Court went on to certify three questions.
Given the conflicting case law on this issue, Legal Services recommends, until the matter is resolved in a higher court, that members apply the lower "serious possibility" standard to all protection grounds.
Where Exclusion clause F is applied, the standard is "serious reasons for considering," which is less than the balance of probabilities.
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 the Exclusion clauses,Note 11 the burden of proof lies with the Minister to establish exclusion. Further, where the Minister applies to have a refugee protection determination vacated,Note 12 or to have it determined that the person has ceased to be a Convention refugee or a person in need of protection,Note 13 the burden of proof lies with the Minister.
7.2. IMMIGRATION APPEAL DIVISION (IAD)
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. Some provisions of the Immigration and Refugee Protection Act specify the applicable standard of proof. For example, subsection 36(3)(d) specifies that the standard is the balance of probabilities. On the other hand, in subsection 37(1)(a) the standard is "believed on reasonable grounds," which is less than a balance of probabilities. Where the standard of proof is not specified, it is the civil standard of a balance of probabilities.Note 14
On an appeal the ultimate burden of proof rests with the appellant.
7.3. IMMIGRATION DIVISION (ID)
Pursuant to section 45(d) of the Immigration and Refugee Protection Act, the burden of proof will vary. Where the permanent resident or foreign national seeks to come into Canada, the burden of proving that the person has the right to come into Canada is on the person seeking to enter. With respect to persons who are in Canada, the Minister has the burden of proving that the person should be ordered to leave Canada.
Table of Cases
- Adjei v. M.E.I.  2 F.C. 680, 57 D.L.R. (4th) 153, 7 Imm. L.R. (2d) 169 (C.A.)
- Li, Yi Mei v. M.C.I. (F.C., no. IMM-5838-02), Gauthier, December 22, 2003; 2003 FC 1514
- MA2-00869, Tshisungu, August 7, 2002
- Tameh, Ali Farrokhi v. M.C.I. (F.C., no. IMM-6266-02), Blanchard, December 15, 2003, 2003 FC 1488
- Thangasivam, Kantheepan v. M.C.I. (F.C.no. IMM-8986-03), Snider, November 25, 2003