Federal court urges caution in denying refugee claim based solely on border interviews

Appeal division relied on perceived inconsistency alone rather than totality of evidence, court says

Federal court urges caution in denying refugee claim based solely on border interviews

The Federal Court warned refugee tribunals to exercise caution before rejecting an applicant’s refugee claim on the sole basis of inconsistencies or omissions between their port of entry (POE) interviews and evidence submitted later.

In Khan v. Canada (Citizenship and Immigration), 2021 FC 1177, the court said that while material inconsistencies between POE notes and other oral and documentary evidence can indeed result in the denial of a refugee claim, the tribunal must exercise caution when relying on POE notes alone to make credibility findings. The court found that the Refugee Appeal Division (RAD) failed to exercise the requisite degree of caution before rejecting the applicants’ refugee claims.

The applicants are citizens of Pakistan who claimed refugee protection in Canada. During their interview with border officials, they had identified “unknown criminals” as the agents of persecution. But in their basis of claim narrative and supporting evidence later submitted, they said that the agents of persecution were members of their own extended families.

The RAD affirmed the Refugee Protection Division’s dismissal of the applicants’ claims. RAD expressed doubts in the applicants’ credibility and said that they “essentially changed the identity of their agent of persecution over the course of their refugee claim.”

The applicants argued that the RAD decision is unreasonable because the tribunal merely relied on a perceived inconsistency in the POE notes as the sole basis for denying their refugee claim, rather than considering the totality of the evidence submitted. The applicants explained that the POE notes are less detailed and that they had difficulties in translating to English when they were interviewed.

The court agreed with the applicants. According to the court, RAD mischaracterized the POE interview notes and failed to engage with important aspects of the applicants’ explanations by resorting to circular reasoning. The court concluded that the RAD’s decision was unreasonable for relying solely on a perceived contradiction in the POE notes and referred the matter back for redetermination.

Related stories

Free newsletter

The Canadian Legal Newswire is a FREE newsletter that keeps you up to date on news and analysis about the Canadian legal scene. A separate InHouse Edition is delivered on a regular basis, providing targeted news and information of interest to in-house counsel.

Please enter your email address below to subscribe.

Recent articles & video

SCC relies on treaty in finding foreign company exempt from paying tax in Canada

Ontario court pilot shows trend toward family dispute resolution: lawyer

COVID-19 and the courts: Nov. 29, 2021 update

Thank you to our Advisory Panel for dedicating their time to the 2021 Lexpert Rising Stars Awards!

B.C.'s bill on electronic wills, remote witnessing to come into force this December

Law Society of B.C. is appealing tribunal decision to ban Richmond Hong Guo lawyer for a year

Most Read Articles

Announcing the 2021 Lexpert Rising Stars

Lawyers' petition protests 'erosion of our free society' through vaccine passports, mandates

COVID-19 has created challenges in completing some deals as potential buyers seek ways to get out

Last chance to take vote for the Top Intellectual Property and Labour & Employment Boutiques