Decision-maker could assess evidence's weight or probative value without considering credibility
The Federal Court has set aside two decisions denying immigration applications filed by an Iranian man who feared facing persecution in Iran due to his sexual orientation.
In S.M. v. Canada (Citizenship and Immigration), 2022 FC 759, the applicant, S. M., filed a claim for refugee protection, alleging fear of persecution in Iran due to his sexual orientation. In denying the applicant’s claim, the Refugee Protection Division (RPD) of the Immigration and Refugee Board found that he had not established his sexual orientation and, therefore, did not have a subjective fear of risk on return to Iran. The Refugee Appeal Division (RAD) upheld the RPD’s decision.
After two years, he applied for a pre-removal risk assessment (PRRA). In addition, he filed a request for permanent residence based on humanitarian and compassionate (H&C) grounds. To support his PRRA and H&C applications, the applicant provided new evidence to substantiate his sexual orientation as a gay man, his live-in relationship in Canada with his then-partner, and his fear of persecution in Iran.
The applicant also submitted letters of support from his brother, his employer, his friends, and two LGBTQ+ organizations in Toronto, his photos and those of then-current and previous partners, and documents examining the treatment of LGBTQ+ individuals in Iran.
The immigration officer denied his applications and ruled that the new evidence neither established the applicant’s sexual orientation nor showed that the allegations previously rejected by the RPD and the RAD were credible and true.
In his applications for judicial review, the applicant alleged that the officer’s decisions relied on a flawed assessment of his evidence. He also alleged that the officer’s findings “were not findings as to the sufficiency of evidence but rather were veiled credibility findings.” Despite his request for an oral hearing to resolve credibility concerns, the officer did not arrange a hearing.
The respondent argued that the officer’s findings were based on insufficient evidence and not on credibility, and therefore, the officer was not obliged to arrange a hearing.
The Federal Court set aside the officer’s decisions and remitted the applicant’s PPRA and H&C applications to a new officer for redetermination.
Recognizing the inherent challenges associated with establishing one’s sexual orientation, the court noted that a decision-maker could assess the weight or probative value of evidence without considering whether it is credible.
“This occurs when the decision maker believes that the credibility of the evidence is irrelevant because the evidence is to be given little or no weight even if it is found to be reliable evidence,” Justice Andrew Little wrote. “However, that is not the situation in the present case.”
According to the court, the officer’s treatment of the evidence was primarily concerned with its trustworthiness and whether it was to be believed, not with its sufficiency or the weight to be given to credible evidence. The officer held in both decisions that the applicant’s allegations previously found not credible “were not now, on a balance of probabilities, credible and true,” the court noted.
“Based on the reasoning used to make both decisions, the officer had credibility and not just sufficiency concerns regarding the evidence supporting the applicant’s sexual orientation,” Justice Little wrote.
The court added that the officer’s assessment of the evidence involved “negative credibility findings” on the central issue in the appellant’s applications, “without grounding that disbelief in any inconsistent testimony or documents and without affording the applicant a hearing.”
“This is not a case involving a bare assertion that the applicant was a member of the LGBTQ+ community,” Justice Little wrote. “There was evidence from the applicant, his then-partner, and many others to support his claim.”