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Case Summary: Federal Court discusses proper treatment of supporting evidence when credibility at issue

By July 12, 2018No Comments

Justice Southcott’s recent decision in Francois v Canada (MCI) provides insight into how supporting evidence is to be treated when a decision maker finds a claimant’s own evidence to lack credibility. 

The upshot: 

A decision-maker cannot reject an asylum claimant’s evidence for lacking credibility, and then reject supporting evidence from other individuals for being inconsistent with the decision-maker’s credibility finding. The Board must conduct an independent assessment of that supporting evidence in its own right. 

The details:

Ms. Francois claimed refugee protection after arriving in Canada almost seven years ago. As a bisexual individual from St. Lucia. She feared abuse or death in light of domestic abuse she had suffered, and on account of her being a bisexual living in Saint Lucia. When her claim was refused, she sought an application for judicial review before the Federal Court and was successful. 

The Refugee Protection Division member [RPD] considered Ms. Francois’ identity as a bisexual and her credibility to be determinative issues. The RPD held that Ms. Francois did not establish the former, and found that she was not a credible witness. The claim was refused on that basis.

Regarding credibility, the RPD noted that Ms. Francois had been in Canada twice without claiming refugee protection, and that her claim was not made promptly when she entered for the third time. The RPD also found there to be discrepancies between Ms. Francois’ personal information form and her oral testimony, specifically concerning whether the claimant had returned to live with a man who she alleged had been abusive towards her. There were other credibility concerns held by the RPD, including the fact that Ms. Francois’ second entry to Canada was attempted using a false name. 

When considering the claimant’s sexual identity, the RPD found inconsistencies in her testimony concerning previous relationships. Notably, the RPD took issue with the fact that Ms. Francois did not call her current partner as a witness. 

On the allegations of domestic abuse, the RPD gave little weight to affidavits submitted by Ms. Francois’ family and friends. It was based on this treatment of evidence that the Federal Court granted the application for judicial review. 

The Federal Court held that the RPD failed to explain why it found the affidavits to lack credibility, and found the decision to be unintelligible on this point and therefore unreasonable. The Court took further issue with the RPD’s reasoning that little weight was assigned to the affidavits because the affidavits contained information that the RPD found to lack credibility. Before according little weight to the supporting evidence, the RPD ought to have conducted an independent assessment of those affidavits. 

Though it would have been helpful to hear the Court’s views on this point, the Court did not comment specifically on the RPD’s criticism that the claimant’s partner was not called as a witness.

The decision illustrates the importance of approaching each piece of evidence in an unbiased and systematic manner. Any findings regarding the credibility of a claimant cannot be taken as automatically tainting the credibility of evidence from other individuals. This holds true even if such evidence concerns aspects of the claimant’s case that the decision-maker has found to lack credibility.


Author Monique

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