The Federal Court of Canada often imagines refugee law as a special case, a unique and somewhat peculiar domain of legal decision-making. It notes that Refugee Board members are not like other types of civil and administrative decision-makers, for they must “prognosticate potential risks” in a context fraught by every type of evidentiary complication.Footnote 1 Theirs is, quite simply, “among the most difficult forms of adjudication.”Footnote 2 Moreover, refugee claimants are not like other litigants.Footnote 3 They are a “vulnerable, poor and disadvantaged group”Footnote 4 and, for a host of reasons specific to the refugee law context, they are particularly susceptible to having their claims wrongly denied. They stand to pay the price, in other words, for the “radical uncertainty” in this area of fact-finding.Footnote 5
Imagining claimants as vulnerable people whose pleas for protection may be wrongly denied – who may “cry out for help to no avail”Footnote 6 – brings squarely into focus the “grave,” “significant,” “dire,”Footnote 7 and “potentially even fatal”Footnote 8 consequences of this kind of mistake. The Court reminds Board members that the Convention came into being “after the Second World War with its gas chambers”;Footnote 9 that, at its core, “the Act is all about saving lives and offering protection to the displaced and persecuted”;Footnote 10 and that Canada is obliged to answer the call not only because of the country’s international commitments,Footnote 11 but also in order to live up to its own “humanitarian ideals.”Footnote 12 The Court is deeply concerned about the possibility that claimants may be wrongly rejected, not because this is the more likely kind of mistake, but because the potential consequences are simply “terrifying.”Footnote 13
The salience of this kind of mistake, in short, comes across in the vehemence of the Court’s language when it addresses the point directly. It is also reflected in a great many judgments in which the Court highlights claimants’ particular vulnerability to mistaken denials. As discussed in the remainder of this chapter, the Court often warns that claimants may be misunderstood and wrongly disbelieved because aspects of a truthful claimant’s testimony may raise doubts in the member’s mind; or because her conduct may lead the member to make flawed judgments about her character or to conclude that her fear is implausible; or because she may lack access to key evidence. Even if a member reasonably concludes that the claimant has invented her story, the Court is concerned that he may overlook the possibility that she is nonetheless at risk. And the Court stresses that genuine refugees may be sent home to persecution if the Board enforces its procedural requirements too rigidly.
Wrongly Disbelieving the Claimant
The Claimant’s Testimony
The Court emphasizes that there are many reasons why, in listening to her testimony, a member may come to distrust a truthful claimant. Echoing the concerns of many in the field, it warns that the member may fail to appreciate that the claimant is suffering the effects of trauma, or may simply expect too much of her memory even in non-traumatic contexts. The member may misread the claimant’s demeanour, or misinterpret aspects of her evidence that require a nuanced understanding of her cultural background, gender or sexual orientation. Giving evidence through an interpreter may further impair the claimant’s ability to be understood and believed.
As a result of their experiences of persecution, many claimants will experience what the UN Handbook calls “some degree of mental disturbance.”Footnote 14 Much has been written about the irony that genuine refugees’ experiences of trauma may make their testimony seem unbelievable, for the predictable consequences of trauma – trouble with memory, with focus, with ordered thinking – may strike a decision-maker as signs of deception.Footnote 15 The Court is strongly concerned that the Board may wrongly disbelieve claimants for this reason. It concludes categorically that “many, if not most, refugee claimants are vulnerable and as a result have difficulty testifying effectively,”Footnote 16 and it overturns decisions in which the Board ignored a psychiatric or psychological report,Footnote 17 misunderstood or downplayed it,Footnote 18 or failed to consider whether the claimant’s trouble testifying could be explained by the mental health factors noted within it.Footnote 19 The Court reminds members where their competence lies: “while members of the Refugee Protection Division have expertise in the adjudication of refugee claims, they are not qualified psychiatrists, and bring no specialized expertise to the question of the mental condition of refugee claimants.”Footnote 20
Qualified psychiatrists and psychologists, on the other hand, do have such expertise, and the Court reminds the Board that these professionals use this expertise in reaching their diagnoses and conclusions: they do not simply accept what the claimant reports, but rather rely on clinical observation and standardized tools.Footnote 21 An expert report’s validity is therefore not undermined by the fact that the claimant obtained it in support of her refugee claim, nor by the fact that she was referred to the specialist by her counsel rather than by her doctor, nor by the fact that the specialist met with her only once in preparing it.Footnote 22 As a result, the Court overturns decisions in which members displayed “unwarranted” skepticism about a report’s contents,Footnote 23 or substituted their own judgments about the claimant’s mental health for that of the experts.Footnote 24 The Court finds, for example, that in concluding that the claimant was not credible, the member erred in ignoring a psychiatrist’s warnings that “formal questioning may trigger memories of past traumatic events,” choosing to rely instead on the fact that she showed “no problems in her manner of testifying” (especially, perhaps, since the hearing had to be adjourned and the claimant taken to hospital because, as the member also noted on the record, she is “crying and sobbing and can’t breathe properly”).Footnote 25 In short, where such expert evidence is before the Board it must be fully considered, and the Court goes so far as to find that in the face of such evidence, the member should be “very cautious in arriving at credibility conclusions.”Footnote 26
The Court, in fact, goes further. Even absent any psychiatric or psychological evidence, it faults the member for failing to consider mental health factors as a possible explanation for problems with a claimant’s testimony, such as vagueness, gaps, and inconsistencies.Footnote 27 For victims of torture and victims of sexual violence, in particular, its judgments caution that trauma and its psychological sequelae come standard. “[W]e would expect the legitimate victim of torture to have difficulties testifying,” the Court warns, in part because of problems with “memory, consistency and coherence.”Footnote 28 Women giving evidence about gender-based violence may similarly have trouble telling their stories,Footnote 29 not only because of “social, cultural, traditional and religious norms”Footnote 30 but also because of “difficulty in concentrating and loss of memory.”Footnote 31 As a result, a member evaluating testimony in such claims must assume for the sake of argument that the claimant is being truthful about her experiences. The Board “must consider the evidence from the perspective of the teller,”Footnote 32 “in the context of the allegation contained in the claim,”Footnote 33 in order to consider properly “the effects that such an experience might have” on her ability to testify.Footnote 34 The Court stresses that this is the only reasonable way to proceed with such an analysis. To discount the claimant’s experiences of trauma because of troubles with her testimony, and then, since the claimant is not a traumatized person, to discount evidence that traumatized people often have trouble testifying, is “circular and illogical reasoning”: it “amounts to rejecting a diagnosis because of the symptoms.”Footnote 35
In addition, when claimants are testifying about any kind of traumatic experience, “the Board should not have inflated expectations” of what they will remember.Footnote 36 Echoing a considerable quantity of social science evidence, the Court finds that “It is clear that disturbing events…can reasonably alter an individual’s recollection.”Footnote 37 It warns members not to “demand more of the applicant’s memory than is reasonable” under such circumstances,Footnote 38 especially when it comes to the “accuracy and consistency” of the claimant’s recollections,Footnote 39 and in particular when they concern “peripheral details of a traumatic event.”Footnote 40 So where the Board finds that the claimant should remember whether his teeth were broken during his arrest or during his subsequent torture;Footnote 41 or whether he was tortured with a wooden or an iron instrument;Footnote 42 or where the member draws a negative inference from a claimant’s “lack of spontaneity” in describing her gang rape;Footnote 43 or expects that “given the traumatic circumstances…the claimant would have a vivid memory of the events and would be able to provide a fulsome description without hesitation or difficulty of any kind,”Footnote 44 the Court concludes that this reasoning is unsound.
Even when claimants have no general underlying mental health troubles, however, and even when they are testifying about non-traumatic subjects, the Court repeatedly warns that their claims may be wrongly denied if decision-makers have unreasonable expectations about what and how people remember in everyday contexts. Consistent with a large body of research that suggests that human memory is neither as complete nor as stable as people typically believe,Footnote 45 the Court has long cautioned against a “microscopic”Footnote 46 or “overzealous”Footnote 47 or “over-vigilant”Footnote 48 search for gaps or inconsistencies in the claimant’s testimony. To be relevant, such problems must be “rationally related” to the question of credibility,Footnote 49 and the Court finds that little can be gleaned from a “one day discrepancy” in a claimant’s testimony about dates,Footnote 50 for example; or from his inability to describe “every single detail” of his identity document;Footnote 51 or from her failure to remember aspects of religious “trivia,”Footnote 52 or the name of the ship on which he fled his country,Footnote 53 or whether he had started dating a former partner at “the beginning of July, the middle of July, or the end of July” several years earlier.Footnote 54 The claimant’s failure to remember the specific dates even of important events, such as an assault,Footnote 55 or an arrest,Footnote 56 or even the disappearance of a loved one,Footnote 57 “bears a tenuous connection” to her credibility.Footnote 58 Quite simply, “A refugee claim should not be determined on the basis of a memory test.”Footnote 59
Furthermore, of particular concern to many involved in issues of refugee protection is the possibility that claimants will be wrongly disbelieved because of their manner of testifying. The problems inherent in assessing demeanour across cultures have been widely noted, leading many to conclude that in the refugee context in particular “the risks of assessing credibility based on demeanor are extreme.”Footnote 60 Some argue that it ought, in fact, to play no role at all in a refugee hearing.Footnote 61
The Federal Court amply shares this concern, not only because of the possibility for cross-cultural misunderstandings,Footnote 62 discussed further below, but also because of the potentially distorting effect of the member’s quasi-inquisitorial role.Footnote 63 So the Court rejects the Board’s assumptions about the demeanour that it would be reasonable to expect, for example, from a political activist (the claimant “did not present as leadership material”);Footnote 64 or an assault victim (the claimant’s testimony was not credible because she “did not display any emotion”);Footnote 65 or a bereaved parent (to be believable, the claimant’s testimony should have been accompanied, in the Court’s paraphrase, by an “outburst of cries”);Footnote 66 or a fisherman (“the panel is not persuaded from the claimant’s demeanour that he was [a] fisherman”);Footnote 67 or simply a genuine refugee (the claimants’ “cynical, sarcastic and disrespectful comportment…was inconsistent with persons seeking refugee status for legitimate reasons”).Footnote 68
Cross-cultural misinterpretation is not only a potential source of errors in the assessment of a claimant’s demeanour, however. Decision-makers’ own “background, values, beliefs and life experiences” can also lead them to reject the substance of the claimant’s testimony.Footnote 69 Peering across the cultural divide that separates them, the member may deem the claimant’s story implausible because of mistaken assumptions about life in his home country.Footnote 70 The Court warns Board members emphatically about the perils of relying on “North American logic and reasoning,”Footnote 71 “Western concepts,”Footnote 72 “Canadian paradigms”Footnote 73 or “Canadian standards”Footnote 74 in assessing the plausibility of a claimant’s evidence. Since “actions which appear implausible when judged from Canadian standards might be plausible when considered from within the claimant’s milieu,” the Court stresses that findings of implausibility are “inherently dangerous”Footnote 75 and “should be made only in the clearest of cases.”Footnote 76 The Court faults the Board, for example, for expecting that a claimant would remember his siblings’ birthdays, in a cultural context in which birthdays are not celebrated,Footnote 77 or for rejecting off-hand the claimant’s explanation that in his country, he would refer to a woman of his mother’s generation as an “aunt” without meaning to imply that they had a blood relationship.Footnote 78 The Court faults the Board for relying on western assumptions about the size and layout of a supermarket,Footnote 79 or about the kinds of stories that would likely be reported in a local newspaper,Footnote 80 or about how an agent of persecution would go about persecuting. Not only does the Board err in assuming that persecutors will act rationally,Footnote 81 but it must take care not to view their conduct “through North American eyes.”Footnote 82 In one case, for instance, the claimant testified that he was beaten by the Turkish police because he ran a business teaching Kurdish music. In overturning the Board’s finding that the police had likely mistreated him because his business was unlicensed, the Court explains that while the Canadian authorities would take a dim view of running an unlicensed business, and not of promoting Kurdish culture, there was “no evidence” that the Turkish police took the former seriously, and “significant evidence” that they took the latter very seriously indeed.Footnote 83
Understanding across cultures is even more problematic when gender is added into the mix: “An entire body of literature has grown up around the issue of how these problems are further complicated by the issue of gender.”Footnote 84 The Court’s judgments look from many angles at the ways in which gender-specific issues and assumptions may lead to mistaken denials. They highlight the passage in the Board’s own Guidelines that explains that women and girls may have difficulty giving evidence on their own behalf, as their husbands and fathers may have kept them in the dark about matters central to their claims.Footnote 85 While the Court’s observation that “women sometimes have difficulty testifying about matters relating to sexual violence” is perhaps an understatement,Footnote 86 the Court notes as well that “social, cultural, traditional and religious norms” may further affect both a woman’s willingness to testify and the way that she tells her story,Footnote 87 and that the Board will need to understand these norms in judging the plausibility of her evidence.
The Court often repeats the Guidelines’ caution to the effect that women from cultures “where the preservation of one’s virginity or marital dignity is the cultural norm may be reluctant to disclose their experiences of sexual violence in order to keep their ‘shame’ to themselves and not dishonour their family or community.”Footnote 88 Her feelings of shame may explain a claimant’s failure to disclose her sexual assault at the first opportunity in the refugee claim process,Footnote 89 or her failure to do so unambiguously: the Court explains that the Board must be alert to the possibility that “the applicant’s native culture discourages an open discussion of rape and prompts her to use euphemisms instead.”Footnote 90 Echoing its comments above about judging the actions of agents of persecution in other cultures, the Court also stresses that the Board errs if it requires a claimant to try to explain her abuser’s conduct,Footnote 91 or if it fails to appreciate the power dynamics at play in a domestic abuse situation,Footnote 92 or if it imposes its own notions of how an abuser will abuse.
The Court points out the flaws, for example, in the Board’s conclusion that as a Christian, the claimant’s father would not have forced her into a polygamous marriage with a man who had raped her. Not only does this finding ignore “the possibility that the applicant’s father was not a model Christian,” it also ignores her testimony “that her father was abusive towards her, had a very traditional and patriarchal view of women’s place in society and viewed the applicant as impure after being raped.”Footnote 93 In another case, the claimant testified, on the one hand, that her abuser was so jealous that he kept her confined to the house, and on the other, that he would force her “to perform sex acts with his friends and business associates.”Footnote 94 The member concluded from this supposed inconsistency – if he was willing to share her, then he was “hardly the kind of person to confine the claimant because of jealousy”Footnote 95 – that the claimant had orchestrated an “elaborate scheme of fabrication based on exaggerations and embellishments.”Footnote 96 In overturning this decision, the Court explains that the “logic” of the Board’s reasoning betrays a profound lack of understanding of the psychology of domestic abuse.Footnote 97
The Court notes that the Guidelines’ observations might explain why a claimant was “too ashamed to seek medical attention”Footnote 98 or to make or follow up on a police report.Footnote 99 And while it cautions that it is improper to conclude that a woman from any culture will make a “timely complaint” about a sexual assault – the Court explains that in Canada this inference “was abolished by statute in criminal matters in 1983”Footnote 100 – it stresses that this type of finding is especially flawed where a claimant is subject to a strong cultural imperative to hide her victimization. So the Court overturns a decision, for example, in which the member made a negative inference because the claimant had waited two days to tell her husband that she had been raped. As the claimant had explained, “I knew that our lives would be ruin [sic] by this.”Footnote 101
The Court is similarly concerned that claimants may be wrongly denied refugee protection because of members’ flawed assumptions about human sexuality.Footnote 102 Claimants may be wrongly disbelieved if the Board concludes, for example, that “a well-educated man who understood the consequences of being gay” would not “choose a life style which would inevitably cause him problems.”Footnote 103 A claimant may also be wrongly disbelieved if the member thinks that she knows what a gay man looks like. The Court objects to the “ignorance and prejudice” revealed in the assumption that a gay man will be effeminate,Footnote 104 or that he will have “distinctive mannerisms” that are different, in the member’s words, from those of “any typical young man.”Footnote 105 The Court also cautions that the member may be misled by what she thinks she knows about the lives of sexual minorities. The member errs if she concludes, for example, that a gay or lesbian person will discover their sexual orientation in adolescence,Footnote 106 and will initially have “misgivings” about it;Footnote 107 that gay men will not marry women and father children, even if they “are forced to live double lives” in a homophobic society;Footnote 108 that the claimant, “if he were homosexual, would dissociate himself from the Roman Catholic church”;Footnote 109 and that once in Canada, he will necessarily take advantage of the social scene: “The Board’s insistence that an individual needs to go to the gay village to be gay is not reasonable.”Footnote 110
Lastly, the potential for misunderstandings of all kinds increases exponentially when claimants give their evidence through an interpreter.Footnote 111 The Court notes this explicitly: judging interpreted evidence is “fraught with the possibility of innocent misunderstanding”Footnote 112 and the potential for wrongful denials,Footnote 113 and having to rely on interpreters, both in the hearing room and throughout the refugee claim process, is another reason why many claimants are “vulnerable.”Footnote 114
A refugee claimant has a right under the Canadian Charter of Rights and Freedoms to interpretation that is “continuous, precise, competent, impartial and contemporaneous.”Footnote 115 In overturning decisions in which the interpretation fell short of this standard,Footnote 116 the Court holds that, to be fatal, an interpreter’s errors “need not be central” to the claim,Footnote 117 need not be “material, in the sense of being intertwined with key findings,”Footnote 118 and need not cause any actual prejudice to the claimant.Footnote 119 While it is possible for a claimant to waive her right to adequate interpretation if she fails to raise the issue early enough in the proceedings, the Court stresses that “the threshold for waiver is high.”Footnote 120 The Court consistently makes clear that a claimant who does not speak the language of the proceedings, and so cannot recognize that her testimony is being misinterpreted, cannot be expected to make an objection at the hearing.Footnote 121 Even where a claimant does speak enough English or French to appreciate that her testimony is not being properly interpreted, the Court finds that she cannot be expected, while testifying, to monitor the situation and bring it to the Board’s attention. “[I]t is too heavy a burden” to require a claimant “to act as a watchdog, being both ‘interpreter’ of the questions put and ‘arbiter’ of the quality of the answers interpreted.”Footnote 122 The Court even refuses to apply the waiver doctrine in cases where one might expect that the interpretation problems would “be reasonably apparent” to the claimant regardless,Footnote 123 such as where the claimant “could tell right away” that the interpreter spoke an unfamiliar dialect.Footnote 124
The Court also cautions the Board about the perils of proceeding with a determination when it should be reasonably apparent to the member that the interpretation is inadequate.Footnote 125 The Court emphasizes, for example, that it is improper for the member to rely on the claimant’s counsel to step in and interpret for his client where the interpretation is wanting,Footnote 126 or to refuse to order a new hearing when an audit reveals that the interpreter at the first hearing was incompetent.Footnote 127 The Court reminds the Board, in short, that a claimant “deserves to have his story told,”Footnote 128 and that where the member is aware of a problem with the interpretation, the member has the responsibility to fix it.Footnote 129
Where the claimant alleges that poor interpretation has affected her testimony, the Board must at least consider this possibility.Footnote 130 The Court is also willing to consider this possibility on its own initiative. Where serious difficulties with the interpretation are apparent on the face of the record, the Court concludes that there is simply no “sufficient basis…on which the Board could reasonably question the applicants’ credibility.”Footnote 131 And the Court notes that even without any language errors, the translation process alone can affect the quality and credibility of the claimant’s evidence.Footnote 132 As a consequence, the member should always bear in mind the fact that the claimant’s evidence has been interpreted,Footnote 133 and should exercise caution in identifying inconsistencies and contradictions.Footnote 134
The Claimant’s Conduct
Claimants are not only at risk of being disbelieved because of how they come across in their testimony, however. As the Court notes, a claimant’s conduct outside of the hearing room may also lead a member to make unsound judgments about her character, or to conclude wrongly that she is not afraid to return home.
For many claimants attempting to flee to Canada, every legal route to entering the country is blocked by design. To reach safety, they must sidestep the barriers put in place by the Canadian immigration system.Footnote 135 To qualify for a visitor’s visa, a claimant must convince an immigration official that she intends to stay in Canada only temporarily. The Court rejects the Board’s inference that a claimant who hid her true reason for wanting to come to Canada – and her desire to stay permanently – has thereby demonstrated “that she lacks integrity and that she fails to demonstrate a sincere desire to tell the truth.”Footnote 136 The Court asks: “Can it be seriously suggested that any but the most naive applicant for a visitor’s visa would indicate to the visa officer that the purpose of going to Canada was not to visit but to seek asylum?”Footnote 137 Simply put, “a refugee claimant may need to lie in order to obtain a Canadian visa,”Footnote 138 to say nothing of needing to lie to the agent of persecution. In one case, to obtain his release from prison, where he had been beaten and tortured, the claimant had promised to cooperate with the authorities in the future “even though he had no intention of doing so.”Footnote 139 While the Board drew a negative inference from this dishonesty, the Court rather finds that it was “not surprising” under the circumstances.Footnote 140
Genuine refugees who are unable to obtain a visitor’s visa have little choice but to arrive by other means. When claimants have used the services of smugglers, for example, or have travelled on false papers, or have destroyed their documents, or have lied about how they got to Canada, the Court reminds the Board that this may reflect their “fears and vulnerability” rather than any intrinsic disrespect for the rule of law.Footnote 141 Similarly, even once she is safely in Canada, a genuine refugee may try to “embellish” her claim in order to keep from being sent home:Footnote 142 “It is not unusual for refugee claimants to exaggerate their experiences, perhaps believing that they stand a better chance in persuading the Board to allow their claims if they do so.”Footnote 143 The Court also notes that a claimant might guess or invent information, such as specific dates or times, if she thinks that she “must be as specific as possible for fear of not being believed.”Footnote 144 The Court reminds the Board that its own training materials explain that “False allegations exist on a spectrum, from a slightly distorted report to a complete fabrication,”Footnote 145 and that even if the member disbelieves some part of the claimant’s story, she must nonetheless assess the rest of his claim with an open mind. The fact that the claimant has been “caught in one lie” should not summarily “discredit all of his evidence.”Footnote 146 In short, the Court cautions in the strongest terms that a claimant who has attempted to mislead the Board about some aspects of his claim may not deserve to be branded an inveterate liar, and may still warrant a positive determination if he is otherwise credible.Footnote 147
A claimant whose evidence is otherwise credible may also run into trouble, however, because of how he responded when he found himself at risk. In Canadian law, to qualify for refugee status, a claimant must not only be in danger, he must also be afraid. Since the Convention speaks of a “well-founded fear,” the Supreme Court in Ward concluded that refugee claimants must have a “subjective fear of persecution.”Footnote 148 As discussed in Chapter 5, the Court is often convinced that a claimant’s fear, or the lack of it, can be inferred from his conduct, and over the years it has developed a comprehensive theory of how a person who is genuinely afraid will respond to a dangerous situation: he will flee as soon as he is threatened; he will ask for protection in the first safe country that he reaches; and he will never return home for any reason.
This approach has been much criticized, both as a matter of legal interpretation,Footnote 149 and empirically: decades’ worth of studies about human risk perception and risk management, by psychologists, sociologists, anthropologists, and economists, make quite clear that human beings do not reliably respond to danger as these assumptions suggest.Footnote 150 In a number of judgments, the Court is evidently uncomfortable with this ‘subjective fear’ requirement. It tries to limit its reach as a matter of legal doctrine, and also to reduce its impact in the context of the Board’s fact-finding.
Before the Supreme Court’s decision in Ward, while noting that a claim cannot succeed merely because the claimant is afraid, the Court of Appeal had strongly questioned the wisdom of requiring that a claimant demonstrate fear when, regardless, she is objectively at risk.Footnote 151 The Court continues to rely on this reasoning even after Ward, finding that “a particularly brave or foolhardy claimant will not be punished for lacking a subjective fear”Footnote 152 and that requiring a child, or mentally incompetent person, to prove that she is afraid is “absurd.”Footnote 153 The Court finds that there is no obligation under the Convention,Footnote 154 nor any legal presumption,Footnote 155 that a genuine refugee will make his claim at the first reasonable opportunity; that the Board must consider the claimant’s explanation for why he did not claim sooner;Footnote 156 and that, in any case, while relevant, “delay in making a claim…is not a decisive factor”Footnote 157 – it “cannot, in and of itself, justify the rejection of a claim.”Footnote 158 Where the claimant has returned home despite the alleged danger, the Court stresses that this will not negate her fear without “an element of intent” to move home permanently: “a temporary visit” cannot give rise to a finding of reavailment.Footnote 159 The Court also rejects the formalistic notion that the mere act of applying for or renewing a passport from her home country means that the claimant has reavailed herself of its protection.Footnote 160 In addition, and regardless, the Court warns that it is “almost always foolhardy” for the Board to find that the claimant is not afraid unless it has also found that she is not credible.Footnote 161
Yet even if the claimant were not required to prove her fear as a separate element of the legal test, Board members would continue to rely on the assumptions that underlie the subjective fear analysis in judging the plausibility of claimants’ stories. The Court therefore works hard to contextualize the idea that people in danger will take prompt and effective steps to save themselves and will never willingly put themselves at risk. It works hard to give these assumptions not only a human face, but a vulnerable human face. The Court stresses that there are plenty of circumstances in which any average person might in fact delay in leaving, delay in claiming, or even return home to danger, and others in which any average person might not, but a vulnerable person might.
The Court highlights a number of reasons why, despite a threat to his safety, a person might choose to stay or to return home. He might feel that the situation, although dangerous, is not yet “so severe” as to force him into exile, a judgment that the Court stresses must be understood within its cultural context.Footnote 162 Or if he has gone into hiding,Footnote 163 or has taken steps to make himself less obvious to the agents of persecution,Footnote 164 he may feel that he is temporarily safe. Or despite the danger, he may simply conclude that it is worth running the risk in order to care for or protect his family,Footnote 165 for example, or to continue his studies,Footnote 166 or “to wind up the family’s business affairs.”Footnote 167 And where the Board concluded that a person would not risk harm to himself or to his family and friends in order to continue fighting for a political or religious cause, the Court terms this “a gratuitous counsel of cowardice”:Footnote 168 “It is never particularly persuasive to say that an action is implausible simpl[y] because it may be dangerous for a politically committed person.”Footnote 169
The Court similarly points to many plausible explanations for why a person might not make her refugee claim at the first opportunity. It rejects the idea, for example, that a person who is really afraid would make her claim “in transit.”Footnote 170 Where a claimant in fleeing her country “had always planned to come to Canada,”Footnote 171 the Court faults the Board for suggesting that she should have abandoned these plans – her Canadian visitor’s visa, her hotel reservation, her family waiting to greet her on arrivalFootnote 172 – in order to make her claim in a country that she was “simply passing through,”Footnote 173 such as, for example, “during a two-hour stopover” in a foreign airport.Footnote 174 Among other problems with this reasoning, the Court notes that it would undermine the claim of any claimant arriving by air from a country from which there are no direct flights to Canada.Footnote 175
Even when the claimant has spent considerably longer in a so-called ‘safe third country’ before coming to Canada, if he believes that Canada is his safest bet, the Court finds that his failure to make a claim there should not speak against his fear.Footnote 176 In such circumstances, the Board must not conclude “in a formulaic and thoughtless way” that the claimant would have claimed at the first opportunity if he were really afraid: “someone who actually fears persecution would want to go to a country where their claim has the best chance of success, since the price of failure is a return to the persecution they fear.”Footnote 177 A person may also, of course, have other convincing reasons for preferring to make his claim in Canada: because he has family here,Footnote 178 because he speaks the language,Footnote 179 because he believes that in Canada he will have a better chance of being able to bring his family over to join him,Footnote 180 or of continuing his studies.Footnote 181 The Court explains that while this type of reasoning may expose the claimant to a charge of “forum shopping,” discussed further in Chapter 5, and while “that might be relevant to public policy, it is certainly not something that is incompatible with a subjective fear of persecution.”Footnote 182
In addition, if a person has a valid visitor’s visa, for Canada or for a safe third country, she may be in no rush to make her claim when she arrives. Since she is not at risk of deportation, she may feel free to take her time, to explore her options and to plan her safest course of action, and the Court finds that this delay should not count against her.Footnote 183 Furthermore, even when a claimant has spent years living precariously without any legal status, the Court finds that her failure to make a claim may be justified regardless if she did not perceive herself to be in any danger. In one case, for example, the claimant had spent years in the United States “in a secure location, working to support herself, becoming involved in a new relationship, and caring for a new-born daughter, who is a citizen of the United States.”Footnote 184 The Court concludes that “[t]hese factors, considered in their entirety, might well have suggested” to the claimant that she “had no imminent need to formalize her status.”Footnote 185 The Court also recognizes that in deciding how and when, and indeed whether, to make a refugee claim, people rely on the advice of friends and family and those they trust, and that they may not always receive good advice.Footnote 186 It stresses that if a person believes, rightly or wrongly, that her claim has little chance of success, it is perfectly reasonable for her to prefer to lay low. As the Court notes, “No one in their right mind would seek protection in a country that will not, or which they believe will not, protect them.”Footnote 187
In addition, in the decades since the Canadian Supreme Court’s landmark decision in R v Lavallee,Footnote 188 the Court has often reminded the Board of the realities of what Justice Wilson in that judgment termed “battered wife syndrome”: that when an abused woman acts in ways that are at odds with what the member might expect from a ‘reasonable man,’ “her vulnerability could explain her behaviour.”Footnote 189 Her vulnerability could explain, for example, why the claimant remained in a violent relationship,Footnote 190 or returned to her abuser,Footnote 191 or why she did not disclose the abuse: why she did not report it to the police or to other authorities in her country,Footnote 192 why she did not seek medical attention,Footnote 193 why she delayed in making a refugee claim in Canada.Footnote 194
The Court also faults the Board for judging a claimant’s actions without taking into account her lack of sophistication, her disorientation and fear,Footnote 195 and her vulnerability in difficult circumstances. The Board overlooked these factors when it suggested, for example, that if she were truly afraid, a single woman with a baby would not risk returning home so that her family could support her,Footnote 196 or when it failed to appreciate that a woman who “was held as an indentured servant for several years when she arrived in Canada” would, upon her escape, need a little time to get her bearings before making a refugee claim.Footnote 197 Lastly, the Court warns that the Board must be cautious in judging the actions of children. It may be too much to expect, for example, that a child of twelve who is being raped weekly by her stepfather would report her abuse to the police,Footnote 198 or that a teenager on the run in a foreign country “would know the complexities and subtleties of the administrative apparatus with respect to asylum and be able to gauge the rough waters of the immigration process” so as to make his claim without delay.Footnote 199 The Court makes very clear that where the adults caring for a child fail to approach the authorities on her behalf, their “lack of diligence” should not undermine her claim.Footnote 200
Troubles Getting Evidence
Refugee claimants are far from home, and as the Court notes, they very often left “with little else than what they could carry in their arms.”Footnote 201 Its judgments raise the same concern stressed by many others in the field: claimants are often at a great disadvantage in trying to gather evidence to corroborate their stories, and if decision-makers fail to appreciate this – if they hold claimants and their evidence to too high a standard – they will wrongly reject too many genuine refugees.Footnote 202
Persecution may leave no paper trail. The Court recognizes that victims may not have sought medical help or gone to the police,Footnote 203 and that there may be no reason to expect that an agent of persecution itself would keep a record of its actions.Footnote 204 In addition, where a potentially relevant document may once have been available, the claimant may only recognize its helpfulness in hindsight. She may not have thought to keep a sample of the political flyers that she was distributing,Footnote 205 for example, or in filing papers, she may not have “understood the importance” of asking for receipts.Footnote 206 The Court similarly faults the Board for failing to consider a claimant’s explanation that, in fleeing a warzone, “he had been more concerned with his personal safety…than he had been with collecting his documents,”Footnote 207 as well as for concluding that a person at risk would necessarily react this way: that her documents must be fraudulent because “in the midst of confusion, in the midst of killings,” a person fleeing “wouldn’t have thought to bring a birth certificate.”Footnote 208 By the time of her hearing, proof may simply be beyond the claimant’s reach.Footnote 209 She may be unable to obtain evidence, for example, from people with whom she has lost contact,Footnote 210 from a foreign bureaucracy,Footnote 211 or from a failed state whose bureaucracy has collapsed.Footnote 212 And the Court emphasizes that asking the claimant, or her family and friends back home, to seek corroboration from the agent of persecution may be not only futile but dangerous.Footnote 213
Indeed, recognizing that friends and relatives will often be the claimant’s only means of accessing supporting evidence, the Court warns that this evidence should not be viewed with suspicion simply because a family member or a friend had a hand in getting it.Footnote 214 Otherwise, a refugee’s attempt to corroborate her claim “would be severely constrained or would become impossible.”Footnote 215 The Court likewise criticizes the Board’s skeptical response when a claimant’s friends and relatives provide their own evidence in affidavits or in letters of support. Such evidence may well be the claimant’s only “source of corroborative testimony,”Footnote 216 and it may play a particularly important role in cases of gender-based violence, where claimants often “cannot rely on the more standard or typical forms of evidence.”Footnote 217 In rejecting the Board’s finding that such witnesses are “not sufficiently independent or objective,”Footnote 218 the Court stresses that the fact that they have an interest in the outcome of the hearing does not suggest, on its own, that their evidence is unreliable.Footnote 219 On the contrary, a claimant’s family and friends may be “the people best-positioned to give evidence” about her situation.Footnote 220
The Court similarly rejects the notion that a statement of support can be dismissed simply because the claimant himself requested it for the purposes of his hearing. While such evidence may indeed be self-serving, “a refugee’s evidence will seldom be otherwise,”Footnote 221 and rejecting it for this reason is “perverse,”Footnote 222 for it puts claimants “in an impossible position”: if they had not requested the evidence, the Board “may have questioned their lack of diligence.”Footnote 223
In addition, when judging the authenticity of the claimant’s supporting evidence, the Court cautions the Board to apply the common law maxim that “a document purportedly issued by a foreign authority is presumed to be valid,”Footnote 224 and to remember that when it comes to displacing this presumption, its members have no “particular knowledge or expertise.”Footnote 225 Members err if they assume that foreign documents will resemble their Canadian counterparts,Footnote 226 for example, or if they take it upon themselves to conduct a forensic examination of the evidence,Footnote 227 or if they conclude that any document containing spelling or grammatical errors must be a fake.Footnote 228 Not only is it “to be expected that a letter written by somebody who may not use English on a regular basis will contain spelling mistakes,”Footnote 229 but in one case, where the member rejected a document because it was “rife” with such errors, the Court observes that “the same literary misfortunes befell the Board’s own decision.”Footnote 230
Echoing its comments about other kinds of deception, the Court also warns that when a claimant has submitted some fake documents to support her claim, the Board cannot conclude as a result that all of her documents are fakes.Footnote 231 And it stresses, in the strongest terms, that a claimant’s documents cannot be dismissed as fraudulent simply because fraudulent documents are easily obtained in her home country.Footnote 232 “This faulty reasoning,” the Court warns, “suggests absurd results: that a document produced by the Applicant, even if valid, should be rejected as inauthentic; alternately, this reasoning suggests that the Board is free to arbitrarily choose which evidence to accept and which to reject.”Footnote 233 Even if the member has other independent reasons to doubt the claimant’s credibility, concluding as a result that her documents are not genuine is “capricious”Footnote 234 and can lead to “circular logic”:Footnote 235 where, having rejected the claimant’s documents because of her lack of credibility, the member then finds that the claimant is not credible because she submitted false documentsFootnote 236 or because she no longer has any documents to support her claim.Footnote 237
Lastly, the Court worries that even if the Board accepts that a claimant’s documents are genuine and not prohibitively self-serving, the member may nonetheless hold them to too high a standard. The Court stresses that the Board cannot dismiss a claimant’s evidence “just because the documents did not contain all the details the Board would have preferred.”Footnote 238 As the Court notes of one sparsely worded report, for example, “It can hardly be said that the claimant is not credible because the letter is not long enough to suit the Board.”Footnote 239 Where documents give little detail, this alone is not a reason to discount the information that they do provide. The Board errs if it considers the claimant’s supporting materials “not for what they say, but for what they do not say.”Footnote 240 Similarly, the Court advises that its warnings about circular reasoning, above, apply equally to judgments about a document’s probative value. If the Board gives a claimant’s documents little weight because it has already concluded that he is not credible, it has put the cart before the horse.Footnote 241
Where medical reports confirm that a claimant has scars consistent with torture, for example – that “there is a scar on the claimant’s thigh that is consistent with a bullet entry site; there are two scars on his back that are consistent with being lacerated with a knife; scars on his abdomen are consistent with the history of burn from an iron; and lesions on his chest and arms are consistent with cigarette burns” – it is not open to the Board to dismiss this evidence because the claimant is not credible and these reports are inconclusive: because “they did not determine whether those wounds were sustained in the manner the claimant described or had been the result of some other cause.”Footnote 242 The Board must consider the claimant’s evidence in evaluating his credibility and not the other way around; the member cannot expect a document “to provide information beyond its defined purpose”;Footnote 243 and, moreover, while such evidence may be inconclusive, the Board errs if it fails to appreciate that torture is nonetheless “the logical and obvious cause” of these types of injuries.Footnote 244
In short, in a great many of its judgments, the Court demonstrates a strong concern that refugee claimants are particularly susceptible to being wrongly disbelieved. As the Court notes, this not only puts them at risk, but is also a grave injustice in its own right. “Let us be clear. To say that someone is not credible is to say that they are lying,”Footnote 245 and this is no small matter. “Credibility is the most important thing any of us has,” and a truthful claimant simply “deserves better.”Footnote 246
Overlooking Objective Danger
Where a member has solid reasons for concluding that the claimant’s story is not credible, the Court, like many other commentators, worries that this may blind her to the possibility that the claimant may nonetheless be at risk of persecution.Footnote 247 Even if the claimant has fabricated his entire account of the experiences that caused him to flee his country, the Court makes clear that if the member accepts that he is who he says he is – a gay man,Footnote 248 for example, or a member of a minority opposition party,Footnote 249 or a young Tamil from the north of Sri Lanka at the height of the country’s civil warFootnote 250 – this identity alone may be enough to give him a well-founded fear of returning home.Footnote 251 If the claimant cannot be believed even on the question of his identity, the Court finds that his claim can still succeed if his identity can be established by independent evidence.Footnote 252
Denying Claims on Procedural Grounds
Lastly, the Court warns that genuine refugees may be sent home to persecution if the Board fails to take claimants’ vulnerability into account and applies its procedural rules and regulations too strictly. Policies designed to increase the tribunal’s productivity may create significant “opportunity for error.”Footnote 253 With this in mind, the Court here stresses that “procedure [should] be the servant of justice and not its mistress.”Footnote 254
When a claimant submits his evidence late, even after his hearing has ended, as long as the member has not yet decided the case, she cannot summarily refuse to accept it. She must first at least consider whether rejecting the evidence will increase the likelihood of mistakenly denying the claim: she must weigh its “relevance and probative value.”Footnote 255 Similarly, if a claimant files his initial paperwork past the deadline, or fails to attend his hearing, the Court warns that the member must bear the law’s humanitarian objectives in mind in deciding whether to declare his claim abandoned.Footnote 256 This decision “has dramatic, potentially even fatal implications,”Footnote 257 and so the member must be alert to reasons why the claimant may have been “vulnerable and disoriented,”Footnote 258 and must ask herself whether he “truly intended to abandon his claim,”Footnote 259 bearing in mind that “the right to be heard is at the heart of our sense of justice and fairness.”Footnote 260
In the same vein, the Court finds that when a claimant requests an extension of time in which to file his materials, or asks for an adjournment or a postponement of his hearing, “fairness and justice” are at least as important as the Board’s “convenience” and its desire for “efficiency.”Footnote 261 When a claimant seeks to reschedule her hearing because her counsel is unable to attend, for example, the Board must consider all relevant factors, and cannot deny her request simply because she “had sufficient time to retain counsel”Footnote 262 and failed to “choose counsel willing and able to proceed on the date scheduled.”Footnote 263 The Court characterizes as inherently unjust the member’s decision to give the claimant a “choice” in such circumstances: “either abandon the claim, or proceed unrepresented.”Footnote 264
At the same time, when a claimant’s counsel is responsible for a procedural error, the Court cites with approval the words of Lord Denning: “We never allow a client to suffer for the mistake of his counsel if we can possibly help it.”Footnote 265 The Court refuses to hold a claimant responsible for his counsel’s procedural failings even when the claimant himself was also “negligent” and so is “partly to blame”Footnote 266 – even, in fact, when the Court concludes that the claimant has shown “little or no interest in what is happening to his application.”Footnote 267 Recognizing that claimants may have trouble finding counsel through no fault of their own,Footnote 268 and that the lack of counsel may put them at a real disadvantage,Footnote 269 the Court also stresses that unrepresented claimants are “entitled to every possible and reasonable leeway” in presenting their cases and that “strict and technical rules should be relaxed.”Footnote 270
Conclusion
When the Court imagines refugee claimants as singularly vulnerable participants in an exceptionally uncertain process, it shares Kagan’s view of the wrong mistake in refugee law: “The purposes of the Refugee Convention call for erring on the side of protection and belief, with full recognition that this means some people will cheat the system. The alternative is to refuse protection to many people who need it, and betray the commitment states have made to protect people in danger of persecution.”Footnote 271 Seen from this perspective, it makes sense to depart from the law’s default preference for erring against the party who brought the matter forward. As set out in the next chapter, it makes sense, as it does in the criminal law, to design the law’s fact-finding obstacle course to try to avoid a particularly devastating kind of harm to a particularly vulnerable kind of litigant.
