Claimants must present clear, cogent, and convincing evidence to credibly establish the facts of their claim, on a balance of probabilities. Sworn testimony is presumed to be true unless there are valid reasons to doubt its truthfulness. The presumption does not apply to inferences (conclusions drawn from facts) or speculation for which there is no evidentiary basis.
Decision makers must make findings of fact supported by the evidence. They must not misstate the evidence, ignore relevant evidence, or make findings based on no evidence or on evidence not properly before them. They must draw reasonable inferences from the evidence and not engage in sheer conjecture or speculation.
Successful applications for judicial review of immigration-related decisions are more frequently based on errors in the assessment of evidence than on errors of law. The Immigration and Refugee Board (IRB) has an obligation to properly assess evidence however there are many ways in which the board may err in assessing evidence.
The courts have historically been of the view that decision-making bodies such as the IRB are owed considerable deference in assessment of evidence and their decisions are not to be microscopically picked apart.
The general grounds of review and the standard of review that are applied by the courts to immigration decisions indicate a high level of deference to decision makers and the degree of scrutiny the courts will in fact apply on judicial review depends on the circumstances of the matter.
The more important an evidence that is not mentioned specifically and analyzed in the agency’s reasons, the more willing a court may be to infer from the silence that the agency made an erroneous finding of fact without regard to the evidence. In other words, the agency’s burden of explanation increases with the relevance of the evidence in question to the disputed facts. Thus, a blanket statement that the agency has considered all the evidence will not suffice when the evidence omitted from any discussion in the reasons appears squarely to contradict the agency’s finding of fact.
Moreover, when the agency refers in some detail to evidence supporting its finding, but is silent on evidence pointing to the opposite conclusion, it may be easier to infer that the agency overlooked the contradictory evidence when making its finding of fact.
The courts have repeatedly found that where the board fails to discuss important, contradictory evidence, the only conclusion to be drawn is that the board ignored or misapprehended key facts and came to an erroneous decision. The question then becomes whether, overall, the evidence is so important and vital that failure to acknowledge it may constitute a reviewable error.
In Pinto Ponce, 2012 FC 181, the case involved a frequently recurring set of facts. The applicant had been a victim of domestic violence in Bolivia. She eventually fled the country and made her way to Canada to initiate a refugee claim. The claim was rejected on the sole basis that the applicant had failed to rebut the presumption of state protection.
On judicial review, the applicant argued that the board had failed to consider crucial evidence that contradicted its conclusions on the availability of state protection. The respondent argued that the outcome of the administrative decision fell within a range of reasonable outcomes, and that the process by which the tribunal arrived at that conclusion, including its consideration of evidence, is of little overall significance.
The court more or less ignored these arguments. It found that it was unreasonable for the board to have ignored evidence on the lack of state protection for victims of domestic violence in Bolivia. In essentially following previous jurisprudence, the court found that it was incumbent on the board to consider the โoperational adequacyโ of the efforts made by the Bolivian state to protect such victims before concluding that the applicant had not rebutted the presumption of state protection.
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