Weighing Evidence - Chapter 11: Other common issues

11. Other common issues

11.1 Self-serving evidence

11.1.1 General principles

The term “self-serving evidence” is used generally to describe evidence that appears to have been created or fabricated for the purpose of the hearing, to bolster the case.^{Footnote 384} In a broader sense, all testimony and documents a party submits in a proceeding are self-serving to the extent that they are created by or for the party and may be beneficial to their case.^{Footnote 385}

In Prahl,^{Footnote 386} the Federal Court did not uphold the RPD’s finding that correspondence from the claimant’s family was self-serving. The court agreed with counsel that such correspondence was his only source of corroboration. It was natural that he would request that his family write and that they responded as they did. Although the correspondence postdated the claimant’s arrival in Canada, there was no evidence that what was written was not true. The court also did not uphold the panel’s adverse credibility findings.

The Federal Court has repeatedly criticized the rejection of evidence provided by relatives and family members of an applicant solely because such evidence is self-serving^{Footnote 387}. In Cruz Ugalde,^{Footnote 388} the Federal Court acknowledged that it is true that giving evidence little weight due to its “self-serving” nature is an option open to the decision-maker. However, the court, citing the 2010 Supreme Court of Canada decision in Laboucan,^{Footnote 389} said that evidence generally should not be disregarded simply because it comes from individuals associated with the persons concerned.

The self-serving evidence in Cruz Ugalde was provided by the applicant's family members, who had experienced threats and break-ins by persecutors who were searching for the applicants. Justice de Montigny opined that the PRRA officer deciding the matter would likely have preferred letters written by individuals who had no ties to the applicant. However, it is not reasonable to expect that anyone unconnected to the applicant would have been able to furnish the evidence of what had happened to the applicant in Mexico. The applicant's family members were the individuals who observed the alleged persecution, so these family members were the people best suited to give evidence about these events. It was unreasonable for the officer to distrust this evidence simply because it came from individuals connected to the applicant.

In Magonza,^{Footnote 390} the Federal Court observed that in the vast majority of cases, the family and friends of the applicant are the main, if not the only first-hand witnesses of past incidents of persecution. If their evidence is presumed to be unreliable from the outset, many real cases of persecution will be hard, if not impossible, to prove. Justice Grammond stated that decision-makers may take self interest into account when assessing such statements. He affirmed that it is a reviewable error to dismiss entirely such evidence for the sole reason that it is self-interested.

In Murillo Taborda,^{Footnote 391} the RPD gave little weight to letters from the claimant's father and sister because they were self-serving. Although the judicial review was allowed on the basis that the panel erred in finding adequate state protection for the claimant as well as an internal flight alternative, the Federal Court commented at length on the panel's treatment of the letters and found it to be problematic. The court referred to the fact that the documents were sworn affidavits and stated that the people who could likely attest to the fact that FARC members continued to look for the claimant would be her family members.

In Mahmud,^{Footnote 392} the claimant submitted letters from his uncle and his party president. The Federal Court held the RPD erred in finding them to be self-serving. It stated that the letters must be considered for what they do say, not for what they do not say. They corroborated the claimant's allegations in general terms and did not contradict his evidence.^{Footnote 393}

Great care should be taken in assessing the self-serving nature of such evidence as the Basis of Claim Form which, of necessity,^{Footnote 394} is created by the claimant for the purposes of supporting a claim for refugee protection.

It is important for the decision-maker to state why they reached the conclusion that the evidence is self-serving. In Rendon Ochoa,^{Footnote 395} the RPD’s dismissal of sworn statements from the applicant’s cousin, sister and former co-worker was found to be unreasonable. The panel did not offer any reason for not according them much weight other than the fact that they came from the applicant’s “family and friends” and thus were not “independent in any way.” Justice Zinn held that if the panel gives such evidence little weight, it must set out some basis for doing so in its reasons other than the mere fact that the evidence comes from family and friends. The decision-maker should also explain the consequences of the finding that the evidence is self-serving, since the IRB is not bound by the rules of evidence and this type of evidence is accepted in certain cases. In general, it may result in a finding that the evidence warrants little or no weight.

Decision-makers may assign little weight to self-serving evidence, where reasons for doing so are not only based on the evidence being self-interested. In Omar,^{Footnote 396} the Federal Court found the assessment of self-serving evidence to be reasonable because the officer’s observation regarding interest was made alongside a detailed analysis, where the officer identified discrepancies and weaknesses in each piece of evidence.^{Footnote 397}

11.1.2 Factors to consider relating to the weight of self-serving evidence

The following is a non-exhaustive list of factors that may be considered when assessing the weight to be given to self-serving evidence:

the reasons for which the evidence was prepared
the date of the evidence
the relationship of the author to the party producing the evidence
whether the author has any interest in the outcome of the hearing
the content of the evidence
any apparent bias or contrived appearance
whether the evidence is corroborated by and consistent with other credible evidence
whether the author is available for cross-examination, if required and
the credibility of the party producing the evidence

11.2 Hearsay evidence

11.2.1 General principles

Courts may refuse to admit into the record evidence that is considered hearsay. Hearsay is evidence which is not based on the first-hand observations or knowledge of the witness.^{Footnote 398} The reasons for not admitting such evidence relate to its reliability.

None of the 4 divisions of the IRB is bound by the rules of evidence.^{Footnote 399} As such, hearsay can be and is often admitted by the IRB and a decision maker errs in law if the decision maker rejects evidence simply because it is hearsay.^{Footnote 400} However, the fact that it is hearsay may be considered in determining the weight to be given to the evidence. Panels should normally refer to the rationale behind the rule in assessing the weight of the evidence. For example, evidence which is second- or third-hand information may be given less weight or no weight because it is less likely to be accurate, given the circumstances under which it was communicated.

If hearsay evidence is rejected because it is not trustworthy, the panel should give reasons for its finding.^{Footnote 401} In Senadheerage,^{Footnote 402} the Court stated that “ensuring the trustworthiness of hearsay may be valid grounds for requiring corroboration.”

The Federal Court of Appeal held that it was not improper for the Convention Refugee Determination Division (CRDD) to admit into evidence highly prejudicial hearsay evidence if there is other evidence to support the panel's findings. It is up to the panel to determine the weight to be given to such evidence.^{Footnote 403} This same principle applies to the 4 divisions of the IRB, as they also are not bound by the rules of evidence.

The IAD did not err in receiving and relying upon the evidence of a police officer which was based on the evidence of undisclosed informants. The officer testified as an expert in Asian gang activity in the Vancouver area and in the identification of individual gang members. Even if parts of that evidence were “double hearsay”, the panel could still rely on it, as long as it found the evidence to be credible, trustworthy and relevant.^{Footnote 404}

In similar circumstances, the Federal Court of Appeal determined that the CRDD had not breached natural justice by admitting evidence of an expert witness that was unsworn and contained information from unknown sources. The court noted that pursuant to section 68(3) of the former Immigration Act (which contained similar language to paragraph 170(e) of the IRPA), the panel was entitled to admit the statement if it was considered credible and trustworthy in the circumstances. As for the expert witness not having been made available for cross-examination, the court found that this was not a case where the credibility of the witness was at issue and that consequently, an opportunity for cross-examination was not essential to the fairness of the hearing. Furthermore, it found that it was not unfair for the CRDD to admit this evidence as the claimant was given every opportunity to raise objections beforehand, request cross-examination before the hearing, call rebuttal evidence, and make submissions regarding weight.^{Footnote 405}

In Elezi,^{Footnote 406} the applicant, a citizen of Albania, feared persecution by the mafia because of his employment with a commission dealing with land claims and because his father, a former chairman of the local electoral commission, refused to favour a Socialist Party candidate in a past election. On the issue of state protection, the applicant submitted letters from government officials which indicated that Albania could not protect him. The PRRA officer deciding the application gave them little weight because in the officer's view, the letters were hearsay. The court found that the declarations were made by government actors, a local mayor, and a member of Parliament, and thus the ability of the state to protect the applicant was within their personal knowledge and could not properly be characterized as hearsay evidence. These individuals were part of the state apparatus, and as such, were presumed to have knowledge of its protection capabilities.

It is an error to assign little weight to a psychological or medical report on the mere basis that it contains hearsay evidence. In Kanthasamy,^{Footnote 407} the Supreme Court of Canada clearly commented on the inappropriateness of rejecting professionals' evidence (or similarly reducing its probative value) on the sole basis of hearsay:

And while the officer did not “dispute the psychological report presented” she found that the medical opinion “rest[ed] mainly on hearsay” because the psychologist was “not a witness of the events that led to the anxiety experienced by the applicant.” This disregards the unavoidable reality that psychological reports like the one in this case will necessarily be based to some degree on “hearsay”. Only rarely will a mental health professional personally witness the events for which a patient seeks professional assistance. To suggest that applicants for relief on humanitarian and compassionate grounds may only file expert reports from professionals who have witnessed the facts or events underlying their findings, is unrealistic and results in the absence of significant evidence. In any event, a psychologist need not be an expert on country conditions in a particular country to provide expert information about the probable psychological effect of removal from Canada.^{Footnote 408}

Decision makers may accord little weight to hearsay evidence contained in medical documents but cannot discount medical or health-related diagnoses where they are based on the doctor's or other health care provider's own expertise. In Manan^{Footnote 409} the Court found the RAD illogically discounted the psychological report or letter of the clinical psychologist because the psychologist’s report also was based on his own observations of Mr. Manan in a one and a half hour meeting and his own expertise which the RAD failed to mention.

11.2.2 Factors to consider relating to the weight of hearsay

The following factors may be considered when determining the amount of weight to attribute to hearsay:

the source of the original information^{Footnote 410}
the number of times the information has changed hands
the credibility and objectivity of the persons through whom the information has passed
the credibility of the witness
the availability for cross-examination of any of the persons through whom the information was passed, if required and
the consistency of the information with other reliable evidence^{Footnote 411}

11.3 Evidence of children

11.3.1 General principles

Each division of the IRB is required to appoint a designated representative for a person appearing before the division who is under 18 years of age.^{Footnote 412} The rules of each division contain parallel, though not identical, provisions regarding the duty of counsel to notify the division of the need for a designated representative and the requirement for being so designated.^{Footnote 413} In addition, the Chairperson has issued a guideline (Guideline 3) that applies to procedural and evidentiary issues arising in claims before the RPD that involve children.^{Footnote 414}

Care should be taken in designating a representative to ensure that they will consider the best interests of the child in assisting the child with the presentation of their case, and that there will not be a conflict between the interests of the designated representative and those of the child.^{Footnote 415} The role of the designated representative is not the same as that of counsel. The designated representative is responsible for deciding whether to retain counsel, and if counsel is retained, to instruct counsel or assist the minor in instructing counsel.^{Footnote 416}

The designation of a representative is to apply to the entirety of the proceedings in respect of a refugee claim.^{Footnote 417} In Duale,^{Footnote 418} the claimant had turned 18 nine days before his RPD hearing. He was 16 years of age when he arrived in Canada and when he completed his Personal Information Form (PIF). The RPD found Mr. Duale's story not to be credible and rejected his claim. On judicial review, the Federal Court found that Mr. Duale went through each stage of the proceeding except for the actual hearing without the evidence a designated representative was intended to provide. In particular, he did not have the benefit of any assistance from a designated representative in gathering evidence to support his claim. This was contrary to the intent and scheme of the IRPA and the RPD Rules and contrary to Guideline 3.

The court allowed the application for judicial review on the basis that the court was unable to safely conclude that the failure to appoint a designated representative could not have had an adverse effect on the outcome of the claim. A designated representative would have been responsible for assisting Mr. Duale to obtain evidence. The evidence before the court supported an inference that the evidence gathering process was not what it could have been. The court also commented on the fact that the reasons of the RPD did not expressly refer to the applicant's age, despite a particularly minute examination of his PIF. The failure to expressly acknowledge his age and the impact that age may have had on the completion of his PIF, his testimony, and the assessment of his testimony did not enhance the RPD's credibility findings.

While the child has a right to be heard,^{Footnote 419} the RPD may excuse the minor from the hearing in appropriate circumstances. When determining whether a minor should be required to attend the hearing, the RPD should examine the considerations outlined in Guideline 3.^{Footnote 420} It is also for the RPD to determine whether the child has the capacity to testify and whether the RPD requires the child’s testimony.^{Footnote 421} In certain circumstances, and where a minor claimant is close to the age of majority, the RPD may err if it fails to make inquiries as to whether the minor claimant should be present in the hearing and should testify on his or her own behalf. This was the case in Andrade,^{Footnote 422} where the minor respondent in an application for cessation of refugee protection pursuant to paragraph 108(1)(a) of the IRPA had been 17 years of age. The court found that the respondent had acquired the capacity to form and express an opinion as to his intention to avail himself of the protection of the country of his nationality. The court noted that the consequences of losing refugee protection were significant for the respondent, particularly because he had been personally targeted by the FARC. In these circumstances, the member should not have simply agreed to the request of respondent’s counsel to exclude the minor respondent from the hearing room. By contrast, the RPD in Bukvic^{Footnote 423} did not err by excluding the minor applicants from the hearing room without questioning them in part because of the young age of the children.

Under the Canada Evidence Act, it is presumed that a child under 14 years of age has the capacity to testify.^{Footnote 424} The statute further provides that a child under 14 years of age shall not take an oath or make a solemn affirmation, and that their evidence shall be received if they are able to understand and respond to questions. While a witness under 14 years of age must promise to tell the truth prior to giving evidence, they cannot be asked any questions regarding their understanding of the nature of that promise for the purpose of determining whether the evidence is admissible. If received by a court, evidence of a witness under 14 has the same effect as if it were taken under oath.^{Footnote 425}

In hearing and weighing the evidence of children, the panel needs to exercise a child sensitive approach to questioning that allows meaningful participation in the process.^{Footnote 426} The panel also needs to consider the barriers that may inhibit testimony.^{Footnote 427} The CRDD has written:

… A refugee claimant who is a child may have some difficulty recounting the events which have led him or her to flee their country. Often the child claimant's parents will not have shared distressing events with the claimant, with the intention of protecting their child. As a result, the child claimant, in testifying at his or her refugee hearing, may appear to be vague and uninformed about important events which have led up to acts of persecution. Before a trier of fact concludes that a child claimant is not credible, the child's sources of knowledge, his or her maturity, and intelligence must be assessed. The severity of the persecution alleged must be considered and whether past events have traumatized the child and hindered his or her ability to recount details.^{Footnote 428}

In Uthayakumar,^{Footnote 429} the Federal Court – Trial Division wrote:

Counsel for the applicants reminded the panel that we are dealing with minor children in the instant matter and that under these circumstances, close attention must be paid to the Immigration and Refugee Board's guidelines on procedural and evidentiary issues for minor children … The panel clearly did not take into consideration the fact that the applicants were ten and twelve years of age when they travelled to Canada and that these two children clearly did not have to keep a log throughout their travels. Furthermore, it was quite possible, and perhaps even likely realistic, that both applicants could not precisely remember all of the circumstances of the journey, which must certainly have been very stressful under the circumstances.

11.3.2 Factors to consider relating to the weight of evidence provided by children

The following is a non-exhaustive list of factors that can be considered when assessing the weight to be given to children's evidence:

the age and level of maturity of the child
the child may not be able to present evidence with the same degree of precision as adults with respect to context, timing, and details
the opportunity the child had for observation of relevant events, the child’s capacity to observe accurately and to express what they observed, and the child’s ability to remember facts as observed
the impact of trauma on the child’s ability to testify and present evidence^{Footnote 430}

11.4 Evidence of persons living with mental health conditions

11.4.1 General principles

Members of each division have the power to appoint a designated representative for a person before the division who is “unable, in the opinion of the applicable division, to appreciate the nature of the proceedings.”^{Footnote 431} The rules of each division contain parallel, though not identical, provisions regarding the duty of counsel to notify the division of the need for a designated representative and the requirement for being so designated.^{Footnote 432} Care should be taken in designating a representative to ensure that they will consider the best interests of the person in assisting them with the presentation of their case, and that there will not be a conflict between the interests of the designated representative and those of the person represented. The designated representative will instruct counsel on behalf of the person represented.^{Footnote 433}

The mere existence of a mental health condition does not necessarily mean that the person is unable to appreciate the nature of the proceedings.^{Footnote 434} The RPD should avoid relying on myths, stereotypes and incorrect assumptions to conclude that the testimony of a person who lives with a mental health condition is necessarily unreliable or incoherent.^{Footnote 435} However, an assessment should be made in each case by questioning the person, where appropriate, and examining any medical reports produced.^{Footnote 436}

While the person may not be able to appreciate the nature of the proceedings, they may still be called upon to give oral testimony. Care must be taken in assessing that testimony, as well as the testimony of individuals living with mental or emotional conditions which do not prevent the person from understanding the nature of the proceedings.

In Yahya,^{Footnote 437} the Federal Court found the RPD failed to take into consideration the impact that the applicant's diagnosis of paranoid schizophrenia had on his ability to provide detailed evidence. In assessing the evidence, the panel was dealing with a man who was illiterate and had recently suffered an acute psychotic episode requiring hospitalization for months. He was on medication when he testified. The panel chose to rely on the absence of any explicit reference to memory problems in the Centre for Addiction and Mental Health letter to support its finding that the applicant was not credible. The letter was written to confirm the applicant's ongoing treatment regime and was not intended to provide a complete list of symptoms associated with his schizophrenia diagnosis. The court held that it was reasonable to expect the panel to inform itself as to how the diagnosis might affect the applicant's memory.^{Footnote 438} In another case, the CRDD found that the claimant suffered from an organic brain syndrome which impaired his memory, but that he still understood the purpose of the proceedings. The panel placed no weight on the claimant's evidence, nor did it draw any adverse inferences from the contradictions and inconsistencies in it, and instead relied on the evidence of his adult children.^{Footnote 439}

11.4.2 Factors to consider relating to the weight of evidence provided by persons living with mental health conditions

The following is a non-exhaustive list of factors that can be considered when assessing the weight to be given to the evidence of persons living with mental health conditions:

any expert medical or psychological evidence^{Footnote 440}
the nature of the particular condition from which the witness suffers
whether the witness would be better able to testify if given an opportunity to stabilize their condition through medication (in other words, a short adjournment)
whether the witness would be more comfortable testifying in special circumstances (for example, with the help of a trusted friend, relative, or counsellor, or through the use of a video camera, or behind a screen)
the effect of the condition on the witness's ability to recall past events
the effect of the condition on the witness's ability to understand the questions asked
to the extent it can be determined, whether the witness was lucid at times, while not so at other times
whether other sources of objective evidence are available to support the witness's testimony

11.5 Speculation

Findings of fact cannot be based on “the sheerest conjecture or the merest speculation.^{Footnote 441} Nor should the decision-maker rely on their own speculation in making their findings.^{Footnote 442}

However, the Board is entitled to make reasoned inferences based on the evidence before it. The difference between pure conjecture or speculation and a reasonable inference has been described as follows:

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.^{Footnote 443}

In Ifeanyi,^{Footnote 444} the Court stated the following regarding the difference between speculation and reasoned inferences:

Speculation is not to be confused with inference. It is acceptable for a decision-maker to draw logical inferences based on clear and non-speculative evidence (Laurentian Pilotage Authority v Corporation des pilotes du Saint-Laurent central inc, 2015 FCA 295 at para 13). In the same vein, it is well-accepted that a decision-maker can rely on logic and common sense to make inferences from known facts. The RAD cannot engage in speculation and render conjectural conclusions. However, a reasoned inference is not speculation (Bhatia v Canada (Citizenship and Immigration), 2017 FC 1000 at para 38).

The evidence should be examined to determine whether there is a basis upon which the witness could draw an inference, or whether the statement is purely speculative. Speculation should be given no weight.

11.5.1 RPD and RAD caselaw

The presumption that sworn testimony is true applies to allegations of fact, not to speculative conclusions drawn from those facts.^{Footnote 441}

It is unreasonable for the RPD to invite a claimant to speculate as to why the police acted as they did, and then dismiss the claimant's answer as speculative. In Matharu,^{Footnote 446} the panel invited the claimant to speculate why the police had arrested him and his father and had searched their home and business. The claimant indicated the police thought they were involved with militants. The Federal Court held that why the police thought this was so can only be a matter of speculation unless the police disclosed their suspicions. It was unfair to reject the incident because of speculation.

In Khan,^{Footnote 447} the Federal Court – Trial Division stated that the RPD expressed a general opinion that in Pakistan, when the government changes, the actions of all the operatives within the apparatus of the state also change. The court held that such an opinion is speculation unless it can be proven. The document used to support the RPD's opinion predated the election by 4 years. The court held it is also engaging in speculation to transfer information from one period in time to another, and to rely on it to make global assertions about present conditions, without giving precise reasons.

In Giron,^{Footnote 448} the RPD made unreasonable implausibility findings that were based on speculation or misunderstanding of the evidence. The panel found it implausible that the Mara Salvatrucha gang would be able to identify the applicant, who worked at the Judicial Centre in Metapan, El Salvador, as “someone with information to sell.” Justice Kane held that, in suggesting the applicant should have known how the gang identified him, the panel ignored his testimony that he did not know the gang member who approached him and had no previous interactions with the gang. The RPD had also found the applicant's “very presence in Canada” was implausible because, if his allegations were true, the gang would have had ample opportunity to kill him. The court held this was based on speculation as to how the gang operated.

In Soos,^{Footnote 449} the applicant feared her estranged spouse who had abused her in Hungary and Canada. The spouse had been convicted of assaulting the applicant in Canada. The Federal Court allowed the judicial review due to the RPD's speculative findings concerning the well-foundedness of the applicant's fear of persecution. The panel had speculated without evidentiary support that there was a strong possibility the husband would remain in Canada without status if his own refugee claim was rejected. It failed to explain why it was not persuaded by the applicant's testimony, objective evidence from the criminal court, and psychological reports, all of which addressed the real possibility that the spouse would return to Hungary. Moreover, the panel unreasonably inferred, without evidence, that the applicant would be viewed differently in Hungary because she had “legal documents from Canada” concerning the spouse's criminal history. The applicant had sufficient evidence and a non-speculative basis to support her fears of domestic violence: she feared abuse, was abused, and her estranged spouse was convicted of assault. While her inference was reasoned, the panel's inference was speculative and disregarded the pattern of violence in the evidence.^{Footnote 450}

In Barekzai^{Footnote 451}, the applicant feared persecution by the Taliban based on a newspaper article they wrote criticizing the Taliban. The RAD found that it was implausible that the Taliban would have been deterred from kidnapping the applicant due to the presence of witnesses. The Court found the plausibility finding to be unreasonable, in part because the RAD was speculating what was in the mind of the Taliban. The IRB's National Documentation Package for Afghanistan provided examples of Taliban incidents but did not explain the Taliban's modus operandi. The RAD had also found it not plausible that the applicant did not ask the newspaper if it had been targeted by the Taliban. The Court characterized this finding as “crafted out of thin air” as it was unsupported and speculative. There was no evidence before the panel on whether the newspaper received threats or was targeted by the Taliban.

If the witness is drawing inferences from the evidence, the reliability of the evidence upon which the inference is based must also be considered. In Portianko,^{Footnote 452} the RPD accepted the claimant's credibility in those matters of which he had direct personal knowledge, but it did not accept his conclusions based on speculation. The Federal Court held that there is a distinction between facts of which a witness has direct knowledge, such as having received a summons, and speculation relating thereto, such as whether he would be beaten or killed for responding to the summons. The acceptance of the first type of evidence and the rejection of the second is not unreasonable given that the sources of the witness's knowledge of the two are different.

11.5.2 IAD caselaw

In Dhudwal,^{Footnote 453} a judicial review concerning subsection 4(1) of the Regulations, the IAD found the applicant's previous marriage was a marriage of convenience. The Federal Court held this was highly speculative, given immigration authorities had investigated the marriage and found there was insufficient evidence to pursue the matter.

In Erhatiemwomon,^{Footnote 454} the issue was whether the applicant qualified as a member of the family class as a dependent son by virtue of his age. The sponsor provided birth dates for the applicant that were 2 months and 5 months earlier than the birth date of his younger brother. The Federal Court found the IAD speculated that the age difference could be accounted for by the fact that the sponsor had not kept records or registered her younger son's birth until much later. The court could find no basis for this explanation, which contradicted the sponsor's evidence and was never raised before the panel.

In Welday,^{Footnote 455} the Court found that the IAD speculated that the applicant willfully misrepresented information in his application for permanent residency. The applicant had made a prior application to come to Canada as a sponsored refugee in which he had disclosed his involvement with the Eritrean Liberation Front (ELF). This prior application was refused due to the applicant’s involvement with the ELF, which he did not mention in his application for permanent residency. In dismissing the applicant’s request for humanitarian and compassionate relief, the IAD found that he knew his involvement with the ELF was the reason his prior application was rejected and consequently that he had willfully misrepresented information in his application for permanent residency. However, the Court found that the IAD did not have an evidentiary basis to make the inference it did about the applicant’s knowledge.

In Dayal,^{Footnote 456} the Court found the IAD while considering humanitarian and compassionate factors unreasonably speculated about the length of time the Applicant's father might be able to work. The IAD stated that the Applicant's father would not continue to work for a significant length of time because he is now at the normal retirement age. The Court found the IAD failed to explain what the IAD meant by “normal retirement age,” and why this necessarily applied to the Applicant's father (who, the evidence showed, is a self-employed farmer, rather than an employee in a job with a mandatory retirement age). In addition, the Court stated the IAD must be sensitive to cultural contexts, including in respect of retirement, from a country-of-origin perspective, and not through “Western eyes”.

11.5.3 ID caselaw

In Ke,^{Footnote 457} the Federal Court – Trial Division allowed the judicial review in part because the decision maker based his decision on speculation without sufficient evidence to support the decision. The Minister wanted to cross-examine the bondsperson because of the limited information about Mr. Ke and the bondsperson's relationship. Mr. Ke and the bondsperson were cousins. The ID refused the Minister's request and decided to accept the bond offer reasoning that it was necessary to be sensitive to cultural differences. The ID speculated that to dishonor the bondsperson would create pain and disharmony to the detained person's mother.

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