- In addressing whether the appellant’s statements relating to her marriage should be believed or found implausible, the Board Member made reference to case law stating that a finding of implausibility should be made in only the clearest of cases. The Board Member stated: “To find that the appellant has been untruthful under oath, I must be able to say that there were substantive inconsistencies in her evidence or that things simply could not have occurred in the manner described.” The Board Member also referred to the Federal Court case of Valtchev v. Canada (Minister of Citizenship and Immigration), which held that credibility findings on implausibility should only be made if the facts are outside the realm of what could reasonably be expected, or where documentary evidence demonstrate that events could not have happened in the manner presented by the claimant.
- The Board Member stated that a decision maker should look to cultural practices to explain the relationship and conduct of individuals relating to a marriage or marriage breakdown. In assessing testimony, decision-makers should take into consideration the cultural context of the individuals testifying, their age, background and previous social experience. Further, “it is improper to analyze conduct based on a wholly Canadian or ‘Western’ perspective.”
- In relation to the appellant’s ex-husband’s evidence, provided in the form of an affidavit, the Board Member found that the Immigration Division had erred by entirely discounting the affidavit because he did not present himself for cross-examination. The Board Member declared that Minister’s Counsel did not ask for the individual to be cross-examined when they could have. Further, the IAD has the ability to compel a witness.
- There must be solid grounds to reject or refuse evidence under oath, particularly in connection with sworn testimony and plausibility findings.
Bhaniwal v. Canada (The Minister of Public Safety and Emergency Preparedness)
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