Independent Decision-Making for Financial Stewards

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Standard of Proof

As for the standard of proof, the Federal Court of Appeal pointed out in Orelien (9) that one cannot be satisfied that the evidence is credible or trustworthy, unless satisfied that it is probably so, not just possibly so. (Legal Services, Immigration and Refugee Board of Canada, "Chapter 1. GENERAL PRINCIPLES AND OBSERVATIONS. 1.1. Credible or Trustworthy Evidence," Assessment of Credibility in Claims for Refugee Protection, at http://www.irb-cisr.gc.ca/Eng/BoaCom/references/LegJur/Pages/Credib.aspx.)

(9) Orelien v. Canada (Minister of Employment and Immigration) , [1992] 1 F.C. 592 (C.A.), at 605, per Mahoney J.A.

Credibility and Country Conditions

The credibility and probative value of the evidence has to be evaluated in the light of what is generally known about conditions and the laws in the claimant's country of origin,Note (10) as well as the experiences of similarly situated persons in that country. (11)

(10) Sathanandan v. Canada (Minister of Employment and Immigration) (1991), 15 Imm. L.R. (2d) 310 (F.C.A.); Bains v. Canada (Minister of Employment and Immigration) (1993), 20 Imm. L.R. (2d) 296 (F.C.T.D.); Chan v. Canada (Minister of Employment and Immigration), [1995] 3 S.C.R. 593.

(11) Chaudri v. Canada (Minister of Employment and Immigration) (1986), 69 N.R. 114 (F.C.A.) ; M.E.I.v. Jawhari, Sari (F.C.T.D., no. T-1477-92), Denault, December 16, 1992; Handal, Sandra Iris Rencinos v. M.E.I. (F.C.T.D., no. 92-A-6875), Nol, June 10, 1993.

Benefit of the Doubt

The Handbook on Procedures and Criteria for Determining Refugee Status (13) provides the following guidance:

196. It is a general legal principle that the burden of proof lies on the person submitting a claim. Often, however, an applicant may not be able to support his statements by documentary or other proof, and cases in which an applicant can provide evidence of all his statements will be the exception rather than the rule. … Even such independent research may not, however, always be successful and there may be statements that are not susceptible of proof. In such cases, if the applicant's account appears credible, he should, unless there are good reasons to the contrary, be given the benefit of the doubt.

(13) Issued by the United Nations Office of the High Commissioner for Refugees, Geneva, January 1988.

Lack of Credibility

Where the Board finds a lack of credibility based on inferences, there must be a basis in the evidence to support the inferences. It is not open to Board members to base their decision on assumptions and speculations for which there is no real evidentiary basis. (Legal Services, Immigration and Refugee Board of Canada, "Chapter 1. GENERAL PRINCIPLES AND OBSERVATIONS. 1.1. Credible or Trustworthy Evidence," Assessment of Credibility in Claims for Refugee Protection, at http://www.irb-cisr.gc.ca/Eng/BoaCom/references/LegJur/Pages/Credib.aspx.)