April 21, 2015

The Tricky Issue of Credibility

Posted by Joanna Mennie - Bellissimo Law Group PC

At the heart of much immigration litigation is the tricky issue of credibility. At the Refugee Protection Division, for example, the Member deciding the claim must evaluate whether the claimant’s version of events is credible. In a spousal sponsorship appeal at the Immigration Appeal Division, the Member is tasked with deciding whether or not the marriage in question is genuine. Each of these cases boils down to a simple question: Do I believe what this applicant is saying? The next question becomes, how is the truth of someone’s story properly tested?

Inconsistencies and Omissions

Leading jurisprudence establishes some key principles on credibility. From the refugee context, there is a presumption of truthfulness, meaning that someone who has sworn an oath or affirmation to be truthful is presumed to be telling the truth, unless there is evidence to the contrary. However, a claimant’s credibility will be chipped away in the face of inconsistencies, contradictions or omissions.

An example of an omission would be if a claimant describes a key event at their refugee hearing, but nowhere is this event mentioned in their Basis of Claim Form. A typical inconsistency would be if a claimant is adamant at their hearing that a key incident occurred in February, but documentary evidence on the record references this same incident happening in August.

What will matter in cases involving alleged inconsistencies or omissions is if these are simple errors which a claimant can easily explain, or if they are significant differences which affect material aspects of the claim. Jurisprudence is clear that a Member must not engage in a microscopic examination of the evidence, and must consider an explanation provided by a claimant with respect to a credibility concern.

The Challenge of Plausibility

It becomes even more challenging when plausibility comes into play. Rather than resulting from internal contradictions in the documentary evidence and testimony, plausibility findings are really all about whether something seems believable. This is especially complex, as plausibility findings are subjective by nature and largely depend on the Member’s own perceptions of what constitutes reasonable behaviour in a given circumstance.  This will of course be shaped by the particular facts and individuals involved.

Take, for example, a claim based on domestic violence. When evaluating whether it was unreasonable for an abuse victim not to have approached police for help, a Member must consider the social, cultural, religious, and economic context of this particular claimant.

Given the inherent challenges in establishing clear standards, there is a wealth of jurisprudence focusing on credibility and plausibility findings.

Practical Tips

So, what can a claimant or applicant to do enhance his or her credibility? First, preparation for oral testimony is critical. Hearings can be very nerve-racking, so it is important to have as much preparation as possible in order to anticipate the types of questions which will be asked. This way you are less likely to get tripped-up over details and make mistakes. Secondly, do not guess! If you do not know an answer, say so. If you are giving an estimate, make this clear as well (i.e.: “I am not sure of the exact date, but I think it was in March or April”). This is much better than saying something definitively which is not correct.

Finally, always remember that much of the critical preparation happens well before you step into the hearing room. It is extremely important that all evidence filed in support of a claim for protection or appeal be internally consistent. This means making sure that not a single line on a single document paints an inaccurate picture or contains a mistake. With clear and consistent documentary evidence and well prepared oral testimony, you will be well-positioned achieve the best possible result. In the end, when it comes to credibility, the devil really is in the details!